Excerpt: ...t to Code of Civil Procedure Sections 446(a) and 2015.5. Plaintiffs Request For Judicial Notice of the answer is Granted pursuant to Evidence Code Section 452(d). The provisions of CCP § 446 that a verified complaint be responded to with a verified answer are mandatory. Defendant Urteaga's answer fails to contain the necessary verification language of CCP § 2015.5. Based on the foregoing, Plaintiffs' Motion To Strike Defendant Urteaga'a Answer ...

Excerpt: ...cause of action for PAGA claims precludes arbitration and additionally that defendant waived its right to compel arbitration by waiting 18 months to seek this relief. Plaintiff's complaint follows all pleading requirements to assert that the claims are in the nature of a class action on behalf of all similarly situated and that it contains a PAGA claim asserted on behalf of the general public. This Court finds that the California Supreme Court de...

Excerpt: ...ff Michelle Munnicks and on plaintiff Doriann Munnicks (by and through her guardian ad litem). No responses have been received to date. Code of Civil Procedure Section 2030.260 provides that responses to interrogatories be served within 30 days and CCP § 2030.290 provides that failure to timely provide responses waives any right to exercise the option to provide writings as responses and also waives any objections. Based on the foregoing, Defend...

Excerpt: ... making a traffic stop for plaintiff exceeding the speed limit. Plaintiff used the services of the Calaveras County Sheriff's Office to serve defendant by substitute service, delivering a copy to the CHP office on Sunday, May 6, 2018, and mailing a second copy. Defendant contends this was improper and moves to quash service. Plaintiff has filed a “motion to strike defective motion to quash, motion to show cause for contempt, motion for entry of...

Excerpt: ...ior rulings by this Court confirmed on appeal by the Third District Court of Appeals have resolved all issues other than the cause of action for elder abuse, including those to quiet title and for partition. As a result, there is no longer any real property claim being asserted by plaintiff thereby removing the foundational basis under CCP § 405.20 for recording a lis pendens. Lacking this condition precedent, defendant is entitled to the relief...

Excerpt: ...which were “recently paid”. Defendant opposes contending plaintiff has filed suit in the state of Nevada to recover the same $6,195.14 in damages stemming from this same accident against this same defendant. Defendant's request for judicial notice of Exhibit “A” is granted pursuant to Evidence Code Sections 452 and 453. Although plaintiff is correct that the general rule is liberality in allowing amendment of pleadings, this is not an abs...

Excerpt: ... to conform to provisions of CEQA. Respondents seek to have the CEQA portions of the petition dismissed for petitioners' failure to request a hearing within 90 days of the filing of the petition pursuant to Public resources Code Section 21167.4. Petitioners oppose, contending the 90 days was triggered by the filing of the operative petition, i.e., the first amended petition filed on 4/26/18 or, alternatively, seek relief for attorney mistake purs...

Excerpt: ...ttorney's fees provision, as well as Civil Code Section 5975, defendant now seeks an award of attorney's fees in the amount of $264,777.47. Plaintiff contests certain of the fees as unreasonable and unnecessary, and requests that the Court reduce the amount of attorney's fees to be awarded to $262,361.97. In general, the Court does not find persuasive the contentions that given tasks should have been completed in less time than what was billed �...

Excerpt: ...ndents and real parties in interest demur contending petitioners failed to exhaust their administrative remedies under the “pay first, litigate later” doctrine and alternatively that the petition and complaint fail to plead facts constituting a cause of action largely based upon their interpretation of “registration” and “applicant” under the provisions of then‐existing county code chapter 17.95. Respondents' request for judicial no...

Excerpt: ...lement in the related underlying case of State Farm v Tidwell 12CV38248. The Court notes that plaintiffs filed a second amended complaint on 5/8/18 that was served by mail making defendants' answer due to be filed and served no later than 6/13/18, i.e., five (5) days after the date noticed for hearing on the present motion. Although it is possible that any changes contained in the second amended complaint and any changes that might be contained i...

Excerpt: ...s and request this Court to schedule an Order To Show Cause hearing to determine if defendants are in contempt of the default judgment and consider other means for enforcement of court orders. Plaintiff has provided a sufficient affidavit under penalty of perjury containing the necessary prima facie showing of facts consisting of the making of the court order, defendants' knowledge of the order, defendants' ability to comply with the order, and d...

Excerpt: ...firmatively evident from the pleading itself without consideration of any extrinsic evidence. (Sheehan v San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992.) In ruling on a demurrer, the Court must liberally construe the allegations in the pleading with the goal of attaining substantial justice among the parties. (Code of Civil Procedure Section 452; King v Central Bank (1977) 18 Cal.3d 840. (Even if the facts are not clearly stated, a pleading show...

Excerpt: ...ugust 2018. Subsequently, counsel for defendant submitted a stipulation and proposed order to “reinstate” jury trial which was denied by this Court for the failure to assert the necessary good cause, albeit without prejudice to renew the request by way of noticed motion. Defendant now moves this Court to “reinstate” a jury trial asserting as the requisite good cause an inadvertence on the part of counsel to timely post the jury fee deposi...

Excerpt: ...as moved to strike paragraph 70 of the first amended complaint and the associated portion of the prayer for relief seeking injunctive and restitution relief consisting of auditing, changing, and overseeing defendant's claims practices. A motion to strike is used to challenge the legal sufficiency of all or part of a pleading, in particular to challenge pleading defects that cannot be challenged by demurrer. (CLD Construction, Inc. v City of San R...

Excerpt: ...plaintiffs failed to comply with the notice requirements of Local Rule 3.3.7 as amended January 1, 2018. Said Local Rule explicitly includes a provision that failure to comply “may be a basis for the Court to deny the motion”. However, in light of defendant's disregard for the discovery statutes and the obligations they place on parties, the Court exercises its discretion to rule on the merits of the motion rather than its procedural shortcom...

Excerpt: ...secured by a deed of trust on the involved property. After completion of the trustee's sale, defendants herein prevailed on a separate unlawful detainer action in which plaintiff herein's defense consisted of contesting the validity of the trustee's sale. When this matter proceeded to trial, the Court took judicial notice of the unlawful detainer action and then excluded evidence on the claim of irregularity in the foreclosure process ultimately ...

Excerpt: ...he information. Although defendant likely is correct on the merits that the reference to information that CPS may or even likely has is an insufficient response, the present motion suffers from two procedural flaws. Initially, the proof of service reflecting service by mail on March 23, 2018, for a hearing date of April 20, 2018, does not meet the combined minimum requirements of Code of Civil Procedure Sections 1005 and 1013. The sixteenth court...

Excerpt: ... and eventually a wine tasting room. Defendant Board of Supervisors took up the application twice, eventually denying the re‐zoning by a 3‐2 vote on August 22, 2017. Petitioner/Plaintiff then filed suit seeking to have this Court direct the Board to approve his application in essence contending the denial was arbitrary based on his tenant's small cannabis cultivation site on the parcel. Defendants' demur contending petitioner/plaintiff has no...

Excerpt: ... CONTINUED RECORDATION Plaintiff filed this suit in 2008 contending defendants wrongfully conducted a trustee's sale after plaintiff defaulted on a promissory note secured by a deed of trust on the involved property. After completion of the trustee's sale, defendants herein prevailed on a separate unlawful detainer action in which plaintiff herein's defense consisted of contesting the validity of the trustee's sale. When this matter proceeded to ...

Excerpt: ...Carlson Law Group; McCormick Barstow Sheppart Wayte & Carruth Llp Tentative Ruling: RULING ON DEFENDANT MARK BATEMAN DBA MDL HOME INSPECTIONS' MOTION FOR SUMMARY JUDGMENT Plaintiffs have alleged a total of fourteen causes of action in their second amended complaint against various defendants regarding the purchase of their residence in Angels Camp. The only cause of action contained in the first amended complaint that contains allegations as to d...

Excerpt: ...in judgments for Ponte and her attorneys in a total amount of $35,786.29 ($15,810.00 for Ponte to complete Lokey's purchase of the property under the settlement agreement, $11,886.93 for Ponte in executor's commissions and costs, and $8,089.36 for the law firm of Dambacher, Trujillo & Associates for attorney's fees and costs). Lokey has perfected appeals of this Court's Orders. Ponte now seeks relief from the stay to have this Court order the sal...

Excerpt: ...gainst the prior owners who had sold to plaintiffs, in essence contending alterations and improvements they made to the residence are the cause of the defects. The cross‐complaint alleges causes of action for indemnification, apportionment, declaratory relief, and negligence. Cross‐defendants move for summary judgment on the crosscomplaint. Defendant/cross‐complainant completed construction of the residence in 2005 after which it was purcha...

Excerpt: ... coordinated actions seeking to recover damages related to a fire that started at defendant's Madonna Retreat, plaintiff Laura Sternick has filed three motions that the Court interprets as interrelated seeking relief from her failure to timely disclose expert witnesses, requesting to reopen discovery, to allow her to serve a tardy disclosure of expert witnesses and/or quash objections to notices she has served in lieu of subpoenas (presumably of ...

Excerpt: ...985.3(g) and 1987.1 contending in essence they are overly broad in scope due to the lack of specificity as to body parts and time. Defendant contends they are permissible as they are reasonably calculated to lead to the discovery of admissible evidence given the plethora of body parts and symptoms plaintiff alleges were injured in the accident. Plaintiff herself lists her alleged injured body parts as “solely to her head, neck, upper back, knee...

Excerpt: ...October 30, 2017, as no responses have ever been provided. Code of Civil Procedure §2030.260 provides that responses to interrogatories be served within 30 days and CCP § 2030.290 provides that failure to timely provide responses waives any right to exercise the option to provide writings as responses and also waives any objections. Code of Civil Procedure §2031.260 provides that responses to requests for production of documents be served with...