Excerpt: ...acts necessary to establish each element of the cause of action pleaded. (Committee on Children's TV, Inc. v General Foods Corp. (1983) 35 Cal.3d 197, 212.) A pleading does not sufficiently state a cause of action when any facts necessary to establish an essential element of a cause of action are missing. (Baldwin v Marina City Props., Inc. (1978) 79 Cal.App.3d 393, 410.) Although plaintiff incorporated by reference all prior paragraphs of the co...

Excerpt: ...n filed a motion to compel that the Court granted on December 11, 2020, and ordered plaintiff to fully answer both sets of interrogatories and produce all requested documents (included proper verification) by the close of business on January 8, 2021. On December 21, 2020, Mr. Vitton's responses to both sets of interrogatories and request for production of documents were found at the front door of Ms. Johnson's attorney's office. The responses wer...

Excerpt: ...t 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 defendant's failure to comply with Local Rule 3.3.7, the demurrer is OVERRULED, without prejudice to refile, to the extent it otherwi...

Excerpt: ...Vazquez, Melba C. Atty: Carlson Law Group; Foster Garvy Pc Tentative Ruling: Defendants contend that the binding arbitration clause of the Residential Purchase Agreement entered into on or about July 26, 2020, compels that process be ordered in lieu of these court proceedings; plaintiff opposes largely on procedural grounds. While the language of the agreement provides a provision to compel binding arbitration, there is a condition precedent, in ...

Excerpt: ...r the plaintiff to allege its own construction of the contract. As long as the complaint does not place a clearly erroneous construction on the provisions of the contract, in passing upon the sufficiency of the complaint, the judge must accept as correct the plaintiff's allegations as to the meaning of the contract. (Rutherford Holdings, LLC v Plaza Del Rey (2014) 223 Cal.App. 4th 221, 229.) Both parties agree Business and Professions Code §7159...

Excerpt: ... On January 11, 2021, defendants Coyle filed this motion contesting Peninsula's application. Defendants Coyle erroneously assert Peninsula bears the burden to prove this a good faith settlement, contrary to statutory authority as California Code of Civil Procedure §877.6(d) provides the “party asserting the lack of good faith shall have the burden of proof on that issue.” The California Supreme Court in Tech‐Bilt, Inc. v Woodword‐Clyde &...

Excerpt: ...dants filed this motion. Defendants are requesting to strike or stay the complaint in this matter as a result of Calaveras Superior Court case number 19CV43882, Moore et. al v Reed et. al., which includes these defendants as defendants in a third‐party personal injury liability action. In case 19CV43882, plaintiff Moore was riding his scooter, crashed, and was injured. Defendants were contracted to sweep the street. Defendants submitted a “sw...

Excerpt: ... 2, 2020, Mr. Vitton filed a motion to set aside the default. On January 8, 2021, the Court denied Mr. Vitton's request to set aside the default. On January 20, 2021, Mr. Vitton, filed a motion for reconsideration. Mr. Vitton 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 complia...

Excerpt: ...October 25, 2018, California Department of Transportation answered. On November 13, 2018, parties, except for California Department of Transportation, signed a stipulation to stay litigation and attend arbitration for all causes of action except the fourth cause of action, the stop payment notice. Specifically, the agreement stated that the “parties desire to stay litigation until after Plaintiff, CBA, and CBC have completed the arbitration and...

Excerpt: .... On November 18, 2020, Optum360 filed this motion for summary judgment or, in the alternative, summary adjudication. No trial date has been set. Optum360's request for judicial notice is granted as to Exhibit A pursuant to Evidence Code sections 452 and 453. Pursuant to CCP section 437c(a)(7)(c), “the motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that th...

Excerpt: ...onses were due on or before October 15, 2020. Plaintiff sent defendant a meet and confer letter. Having received no responses from defendant, plaintiff filed this motion. Plaintiff 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 su...

Excerpt: ...ndition of public property, relying on Government Code §835 which provides that “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, an...

Excerpt: ... which alleges violation of Labor Code §98.6. On August 28, 2020, the Court, after oral argument, stated the “ruling does not preclude defendant from demurring again to the pleading as to Labor Code §98.6 for the reasons specified in this Court's tentative ruling;” thus, the present demurrer does not represent a redundant demurrer as the Court's order of September 14, 2020, explicitly provided that defendant was allowed to demurrer to a sep...

Excerpt: ...n behalf of plaintiff. K. W. Emerson 's request for judicial notice is GRANTED as to Exhibits A and B pursuant to Evidence Code sections 452 and 453 and said Exhibits are entered into evidence. K.W. Emerson contends it is entitled to summary judgment because there are no triable issues of material fact as: 1) K.W. Emerson fully executed its duty to protect against the harm suffered by the plaintiff; 2) K.W. Emerson exercised ordinary care in its ...

Excerpt: ...been filed on behalf of plaintiff. Calaveras County's request for judicial notice is GRANTED as to Exhibits A and B pursuant to Evidence Code sections 452 and 453 and said Exhibits are entered into evidence. Calaveras County contends it is entitled to summary judgment because there are no triable issues of material fact as: 1) the County is immune to liability for common law negligence; 2) plaintiff failed to allege statutory grounds for a vicari...

Excerpt: ...ntial Purchase Agreement and Joint Escrow agreement attached to the complaint includes a binding arbitration agreement and are requesting an order to compel binding arbitration. (Petitioners have 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 ...

Excerpt: ...es that plaintiff's second cause of action for products liability is barred for failure to comply with the Tort Claims Act. On September 28, 2020, plaintiff's opposition was filed. The Court GRANTS District's Request for Judicial Notice as to Exhibits A through C pursuant to Evidence Code sections 452 and 453. Government Code §911.2(a) provides that a “claim relating to a cause of action for death or for injury to person . . . shall be present...

Excerpt: ...tories, Set One. Plaintiff timely responded on June 19, 2020. On June 26, 2020, District served a meet and confer letter. In response to the letter, plaintiff amended his responses. On August 3, 2020, defendant District timely filed this Motion to Compel Further Responses to Special Interrogatories Nos. 12, 13, and 19. Plaintiff alleges District failed to meet and confer and therefore did not comply with CCP §2030.300(b). However, defendant Dist...

Excerpt: ...dgment. No trial date has been set. (Defendant Optum360 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 defendant Optum360's failure to comply with Local Rule 3.3.7, the Motion ...

Excerpt: ...fendant's demurrer to the third cause of action, pertaining to violation of Labor Code section 98.6, is SUSTAINED, without leave to amend as this is the third amended complaint. Plaintiff did not receive Court's approval to amend the complaint adding this specific cause of action. Furthermore, plaintiff has not adequately pled this cause of action, even under California's liberal pleading practice, even had such an amendment been allowed. Defenda...

Excerpt: ...n set. Evidence Code section 201 defines relevant evidence as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Defendants object to specific sentences in declarations submitted by plaintiff based on relevancy. Defendants' objections to plaintiff's offered evidence numbers 4, 5, 7, 8, and 9 are overruled, as the statements are relevant. Objection number 3 is su...

Excerpt: ...ded complaint. On July 27, 2020, defendant District demurred. Defendant District's request for judicial notice is granted as to Exhibit A pursuant to Evidence Code sections 452 and 453. Defendant District's request for judicial notice is granted as to Exhibit B and Exhibit C pursuant to Evidence Code sections 452 and 453 and Gong v City of Rosemead (2014) 226 Cal.App.4th 363, 376. Code of Civil Procedure section 430.41 states that a “party demu...

Excerpt: ...tiff's claim for punitive damages. On July 16, 2020, plaintiff filed an objection. A six‐day jury trial is set for September 2, 2020. Plaintiff alleges that defendant acted with malice and oppression when defendant dug a ditch on plaintiff's road which caused plaintiff to be ejected from the motorcycle he was riding, which caused injuries. Defendant denies acting with malice and oppression when he cleared a swale “ditch” along the road as h...

Excerpt: ... not interfere with plaintiffs' use of the existing well. The defendants could install a fence for livestock that could include the well; but the plaintiffs could install, at their own cost, a cattle gate for a well truck. In IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69‐70, the Court ruled: ". . . trial courts should evaluate two interrelated factors when deciding whether or not to issue a preliminary injunction. The first is the like...

Excerpt: ...Set Two. On approximately December 18, 2019, defendants submitted unverified responses and objected to Request No. 13. After additional meet and confer efforts, the plaintiffs filed this motion on May 22, 2020, to compel compliance with Request No. 13. (Plaintiffs have 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. Purs...

Excerpt: ... a request for production of documents, set one on plaintiff. The parties stipulated to continue this motion until the issue of disqualification of counsel was resolved. The disqualification appeal and stay were resolved in September 2019. After additional meet and confer efforts, the defendants refiled this motion on June 10, 2020, to compel further compliance with requests for documents numbers 1, 2, 8, 12, and 15. Defendants' request for judic...

Excerpt: ... referred to as “Sergent”) filed a complaint against defendant Suburban Propane (hereinafter referred to as “Suburban”) on July 30, 2015, in case number 15CV41023. Defendant Propane answered on October 26, 2015. The matter was consolidated with 15CV40978 on May 18, 2016. A trial date is currently set for November 4, 2020. The Court has already ruled the non‐expert discovery cutoff has been extended. Therefore, the Court will not relitig...

Excerpt: ... filed an Application for Immediate Court Hearing and Order to vacate the trial date, and all related dates/cutoffs, and set further status conference in light of the COVID‐19 pandemic. On the same day, this Court granted the request without a hearing. The Court set the matter for May 13, 2020, at 1:30 p.m. in Dept. 4 for trial setting, and granted relief on the pleadings as no jury trials were being conducted in May 2020 due to COVID‐19. On ...

Excerpt: ...ed to as “Gun Club”) answered and filed the amended cross‐complaint on January 30, 2019. The second amended cross‐complaint was filed on October 20, 2019. Gun Club filed this motion on April 27, 2020, requesting to file a third amended cross‐complaint as follows: (1) to delete the quiet title cause of action, (2) to remove reference to Tryon possessing a right of easement in Gun Club property; and (3) to add allegations seeking to termi...

Excerpt: ... representations that Bret Harte Union High School is not a legal entity separate from Bret Harte Union School District and therefore cannot be sued, on its own motion the Court dismisses Bret Harte Union High School as a defendant, without prejudice to be reinstated if discovery reveals contrary facts. Defendants' demurrer to the second cause of action for plaintiff's failure to plead a statutory basis for liability is SUSTAINED, with twenty (20...

Excerpt: ..., plaintiff filed the Complaint. Defendant timely demurred and on September 4, 2018, plaintiff filed the First Amended Complaint. Defendant timely demurred and on December 20, 2018, plaintiff filed the Second Amended Complaint. On January 24, 2019, defendant answered. Plaintiff filed this motion on May 8, 2020. (Plaintiff withdrew the request for reconsideration in his Reply filed May 27, 2020.) CCP section 576 provides “[a]ny judge, at any tim...

Excerpt: ...on January 24, 2020; plaintiff alleges the verification was received on February 3, 2020.) Meet and confer letters were exchanged until plaintiff filed this motion on March 26, 2020, to compel compliance with request for documents numbers 1‐4. (Plaintiff 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 s...

Excerpt: .... Rubenstein v Gap, Inc. (2017) 14 Cal. App. 5th 870, 875. The court can take judicial notice of the existence of court records to include orders, judgments, and findings of fact and conclusion of law. People v Franklin (2016) 63 Cal.4th 261. The complaint in this matter involves the same subject matter as San Joaquin Superior Court case number STK‐CV‐CUBC‐2017‐000229. The plaintiffs in this matter were defendants in the San Joaquin matte...

Excerpt: ...ure section 1033.5(a)(1) statutorily allows defendant to be reimbursed $60 for filing fees. The following items not statutorily prohibited and the Court, in its discretion, awards defendant's request for $71.09 reimbursement for Federal Express and $20.84 for electronic filing. The Court disallows the $180 charges for CourtCall as this was a discretionary cost of convenience for defendant. Therefore, plaintiff's motion is DENIED in part and GRANT...

Excerpt: ...ions. (Defendants have 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; instead, they provided the verbiage of Tuolumne County Superior Court's tentative ruling system. Pursuant to said local rule, lack of compliance provides a specific ground to deny any such procedurallydeficient motion. Based solely upon defendants' fa...

Excerpt: ...Code sections 452 and 453 is DENIED as factual evidence, such as this code section regarding revenue procedures, is not relevant to a demurrer proceeding. Plaintiffs' request to deny the demurrer based on defendants' failure to meet and confer is DENIED. Although attempts to meet and confer did not occur five (5) days prior to the filing of the demurrer, defense counsel explained the circumstances for the lack of full compliance with CCP §430.41...

Excerpt: ...Wuttke filed a demurrer to the first amended complaint and plaintiff filed a second amended complaint. Defendant Wuttke filed this motion on February 14, 2020. Defendant Wuttke's request for judicial notice for Exhibits 1, 2, and 3, pursuant to Evidence Code sections 452 and 453 is GRANTED. Plaintiff's request for judicial notice for Documents 1, 2.a, 2.b, 3, 3.a and 3.b pursuant to Evidence Code sections 452 and 453 is GRANTED. (Plaintiff object...

Excerpt: ...ten (10) days to amend. A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated by reference – or by its legal effect, i.e., by alleging the substance of its relevant terms. Construction Protective Servs., Inc. v TIG Specialty Ins. Co. (2002) 29 CA4th 972, 993. Plaintiff has not sufficiently pled all terms of the contract and has not attache...

Excerpt: ...propounded discovery on defendant George Grafer to include Form Interrogatories, Set One, with responses due by June 12, 2019. Plaintiff granted numerous extensions until September 4, 2019. On September 4, 2019, plaintiff received a courtesy copy of defendant's responses that were not substantive. On October 24, 2019, plaintiff timely filed the Motion to Compel. Plaintiff failed to comply with Local Rule 3.3.7 enacted January 1, 2018, by failing ...

Excerpt: ...days leave to amend. The First Amended Complaint was filed on October 29, 2019, and defendants timely demurred. Defendants' request for judicial notice of the Notice of Rescission of Notice of Default and Election to Sell Under Deed of Trust dated June 7, 2019 and recorded July 11, 2019, is denied as inappropriate in the context of the demurrer, without prejudice to be renewed in a different procedural context. As to defendants' special demurrer:...

Excerpt: ... 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 plaintiff's failure to comply with Local Rule 3.3.7, plaintiff's motion would be DENIED without prejudice. However, in the interests of justice and judicial ec...

Excerpt: ...inent part, that “[a]ny judge, at any time before or after commencement of the trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading . . .” The Court finds plaintiff timely filed this motion as no trial date has been set. However, the Court agrees with defendant and finds plaintiff did not comply with California Rules of Court 3.1324(b) which states that a separate declaration must...

Excerpt: ...� complaint against plaintiff involving the same oral contract. A Case Management Conference has been set for October 19, 2019, as no trial has been schedule. Defendants have 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 procedu...

Excerpt: ... Division ‐ Sacramento Office; Brunn & Flynn; Matheny Sears Linkert & Jaime; Jaime, Matthew C Tentative Ruling: Plaintiffs filed the complaint on August 29, 2018. Plaintiffs filed the First Amended Complaint on February 19, 2019. Defendant timely demurred as to the second cause of action. On May 10, 2019, the Court SUSTAINED the demurrer to the second cause of action with twenty (20) days leave to amend. On May 31, 2019, plaintiffs filed the �...

Excerpt: ...delson, Christopher James Tentative Ruling: Moving defendants allege that an inspection agreement entered into on 12/28/17 included a binding arbitration agreement. Defendants have 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 p...

Excerpt: ...ently differentiated among the named defendants as to which specific acts are alleged as to which specific defendant, including detailing the alleged relationship between Cenlar, National and FBM. Furthermore, plaintiff re‐alleges and incorporates by reference therein each and every allegation contained in foregoing and successive paragraphs providing sufficient detailing for each defendant to respond to the allegations. Defendants' demurrer to...

Excerpt: ...ses was denied without prejudice for failure to comply with Local Rule 3.37; however, at the hearing confirming this denial on 2/15/19, claimant and his attorney were advised if proper responses were not provided, the Court expected a renewed motion which would be granted. No response forthcoming, a renewed motion to compel was filed and granted on 5/10/19. Claimant subsequently provided some documents but did not provide complete responses. CCP ...

Excerpt: ...dants' counsel sent a meet and confer letter that proposed to limit the requests. On April 25, 2019, plaintiffs' counsel responded advising the requests will not be limited. On April 30, 2019, defendants served a formal response to the demand for inspection objecting on various grounds to each demand and no documents were made available for inspection. (On May 31, 2019 defendants filed a related motion for a protective order; however, due to proc...

Excerpt: ...ay 31, 2019 seeking a protective order as to said demand. Defendants have 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 on defendants' failure, the Motion for Protective Order is DENIED wit...

Excerpt: ...ction, the Court agrees with defendants that plaintiffs have overstated the role a single point of contact serves under Civil Code section 2923.7 as the complaint confirms such a contact was in communication with plaintiffs. Defendants' demurrer to the first cause of action is Sustained, With twenty (20) days leave to amend. Defendants' demurrer to the second cause of action is Sustained, with twenty (20) days to leave to amend. Plaintiffs failed...