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129 Results

Location: Merced x
2020.03.24 Motion to Strike 493
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2020.03.24
Excerpt: ... strike is GRANTED WITHOUT LEAVE TO AMEND. This will become the order of the court unless a party notifies the court that it objects to the tentative, in which case, the order of the court will be that the matter is CONTINUED TO TUESDAY MAY 26, 2020 at 8:15 a.m. in Courtroom 8. ...
2020.03.11 Motion to Intervene 342
Location: Merced
Judge: LaPorte, James
Hearing Date: 2020.03.11
Excerpt: ...urt (2017) 3 Cal.5th 531, 545.) Motion to Approve Settlement The motion by Plaintiff Sherry Bruns to approve settlement is continued to Wednesday, April 15, 2020 at 8:15 A.M. Plaintiff Bruns and Defendant Smart & Final are ordered to file, by April 3, 2020, allocation estimates allocating the $3,470,000.00 settlement to the Labor Code violations being released by the proposed settlement, i.e. the amount being paid for each type of claim being rel...
2020.02.10 Demurrer 372
Location: Merced
Judge: Foster, David A
Hearing Date: 2020.02.10
Excerpt: ... California law, parties to a commercial lease may agree to their own notice requirements for termination of the tenancy. In this case, the complaint alleges all the necessary facts to constitute a cause of action for unlawful detainer based on termination of a commercial lease. (See Code Civ. Proc., § 1166.) Defendant shall file her answer within five days of notice of entry of order. (Cal. Rules of Court, rule 3.1320(g); Code Civ. Proc., § 47...
2020.01.27 Motion to Compel Further Responses 883
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2020.01.27
Excerpt: ...el further response to Requests 12‐14, 19, 28, and 32 is granted with respect to document involving driver Jeffrey Cone and otherwise denied. The motion to compel further response to Requests 48‐51 are granted with regards to documents in Responding Party's possession and control and otherwise denied. The motion to compel further response to Requests 58‐59 is denied. The motion to compel further response to Requests 60‐64, 71, 73, 79‐80...
2020.01.24 Demurrers 724
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2020.01.24
Excerpt: ... discovery, but not to extrinsic evidence of facts in declarations filed by adverse parties contradicting the pleading. (See Del e. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604‐605.) Since the allegations of the First Amended complaint's ¶ 24 are not contradicted by matters of which this court takes judicial notice, and since the allegations on their face state facts sufficient to establish a cause of action and are no...
2019.9.30 Demurrer 501
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.9.30
Excerpt: ...essed to and received by crossdefendant) referenced in the cross‐complaint are not attached as exhibits to the pleading. Demurrers for uncertainty under Code of Civil Procedure section 430.10, subdivision (e) are disfavored. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery proc...
2019.9.24 Demurrer 300
Location: Merced
Judge: Hansen, Ronald
Hearing Date: 2019.9.24
Excerpt: ...c. to the first cause of action for breach of the agreement to pay full rent is SUSTAINED for failure to allege facts sufficient to constitute a cause of action, based on facts showing the affirmative defenses of (1) release and (2) accord and satisfaction. Those facts were judicially noticed from 17CL0229, 18CL0196, and the Pylon Sign Lease Agreement, and trump contrary The following tentative rulings shall become the ruling of the court unless ...
2019.9.20 Motion to Change Venue 470
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.9.20
Excerpt: ...oper remuneration. In addition to provisional relief, MID seeks damages for conversion and trespass. Before the Court this day is a defense motion to remove and transfer the action to a “neutral” county. Pursuant to CCP §394(a), any action brought by a government agency in its own locality against an entity doing business in a different county shall be removed and transferred to a neutral county – that is, a county where neither the plaint...
2019.9.20 Motion to Set Aside Default 173
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.9.20
Excerpt: ...nd notice of the entry of the default judgment was served by mail on the moving defendant on December 14, 2018. To challenge the entry of default, the motion must be filed and served within a reasonable time, but no later than six months after the entry of default. (Code Civ. Proc., § 473, subd. (b); Bae v. T.D. Serv. (2016) 245 Cal.App.4th 89, 97.) Here, defendant's motion challenging the default entered on March 16, 2018 and default judgment e...
2019.9.16 Motion for Terminating Sanctions 859
Location: Merced
Judge: Saini, Monika
Hearing Date: 2019.9.16
Excerpt: ...'s written order filed April 16, 2019 deeming admitted the truth of any matters specified in plaintiff's requests for admission is DENIED. Contrary to counsel's assertion, the Court's order did not require defendant to provide responses to plaintiff's requests for admissions. Further, to the extent plaintiff moves for a terminating sanction based on defendant's failure to pay the monetary sanctions ordered, the motion fails as a matter of law. Fa...
2019.9.12 OSC Re Why Sanctions Should Not be Imposed 686
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.9.12
Excerpt: ...ndment permitting Sergio Garcia Sanchez to be a new class representative and include a Private Attorneys General Act of 2004 (“PAGA”) claim, is (a) time‐barred from pursuing a PAGA action, (b) an attempt to add a new claim, and (c) untimely. First, the relation‐back doctrine is applicable to this representation action as the cases cited by defendant (Bartalo v. Super Ct. (1975) 51 Cal.App.3d 526 and San Diego Gas & Elec. Co. v. Super Ct. ...
2019.9.10 Demurrer 055
Location: Merced
Judge: Moranda, David
Hearing Date: 2019.9.10
Excerpt: ...a fiduciary relationship between plaintiff and the demurring defendants. Plaintiff has not cited any persuasive legal authority for the proposition that a fiduciary relationship exists between a real estate buyer and the seller's listing agent. The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. (Tribeca Companies, LLC v. First Amer...
2019.9.9 Motion for Terminating Sanction 859
Location: Merced
Judge: Foster, David A
Hearing Date: 2019.9.9
Excerpt: ...id not require defendant to provide responses to plaintiff's requests for admissions. Further, to the extent plaintiff moves for a terminating sanction based on defendant's failure to pay the monetary sanctions ordered, the motion fails as a matter of law. Failure to pay discovery sanctions does not justify a terminating sanction. Sanctions orders are enforceable as money judgments therefore the remedy to enforce payment of monetary sanctions is ...
2019.9.6 Motion for New Trial, to Vacate Judgment, for Sanctions, to Strike 617
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.9.6
Excerpt: ... § 657).) Plaintiff's arguments do not support claims of error based on the explicit grounds contained in Code of Civil Procedure section 657. Plaintiff's seventeen (17) purported “grounds” are actually arguments that Plaintiff has already made in support of its objections to the Court's Statement of Decision. Thus, Plaintiff has failed to raise any new issue of fact or law not already fully considered by the Court because each issue raised ...
2019.9.5 Motion for Summary Judgment 369
Location: Merced
Judge: Foster, David A
Hearing Date: 2019.9.5
Excerpt: ...on of showing one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action, and therefore the burden shifts to plaintiff to show the existence of one or more triable issues of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff has not met his burden. As an initial matter, the Court notes that the complaint does not contain any charging allegations against Brittany Mc...
2019.8.30 Demurrer 929
Location: Merced
Judge: Proietti, Donald J
Hearing Date: 2019.8.30
Excerpt: ...tated to identify the basis for indemnity whether by contract or tort. Here, the pleading at paragraph 8 and 9 allege tortious acts of fraud attributable to cross‐defendant, but fail to allege any facts to support a joint legal obligation to plaintiff or that cross‐defendant owed a duty to plaintiff that might provide a basis for equitable indemnity. Further, no facts have been stated to support a claim for contractual indemnity. See Prince v...
2019.8.28 Motion to Compel Oral Deposition and Sanctions 939
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.8.28
Excerpt: ...less the parties agree to a later date. Counsel shall meet and confer regarding available dates for the depositions. If counsel cannot resolve deposition scheduling issues after a good faith attempt to resolve informally without court intervention, the Court will entertain a motion on shortened time for a protective order regarding scheduling as well as for monetary sanctions. It is further noted that Plaintiff's counsel is currently not in conta...
2019.8.28 Motion for Attorney Fees 819
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.8.28
Excerpt: ...d finalization of representation; fees and costs as indicated on the Memorandum of Costs; and the amount of the appraisal and the appraiser to appear for the trial. The prevailing party is directed to prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, rule 3.1312, and to provide notice thereof to the opposing party/counsel as required by law and the California Rules of Cour...
2019.8.22 Motion to Set Aside Default, Judgment 813
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.8.22
Excerpt: ...surprise because Mr. Wright was in discussions to purchase the property with a third party that is not a party to the action. The court finds the assertion that Plaintiffs participated in fraudulent negotiations to lack sufficient basis to grant the motion. The prevailing party is directed to prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, rule 3.1312, and to provide not...
2019.8.20 Motion to Compel Physical and Mental Exams 792
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.8.20
Excerpt: ...xamination of a party to the action where the physical or mental condition of that party is at issue. Various subdivisions describe the terms on which ‘a' physical or mental examination ‘conducted under this section' is to be carried out, but no language specifically limits the number of examinations to only one. Such a limit cannot be implied from the use of the nonrestrictive singular article ‘a.' In fact, the statutory language clearly c...
2019.7.26 Demurrer 625
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.7.26
Excerpt: ... adequately addressed the “opposition” in their reply, so the Court will consider the Plaintiff's late “opposition”. The Court notes that even where a demurrer is sustained for failure to state facts sufficient to constitute a cause of action, leave to amend the complaint is routinely granted. Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent:...
2019.7.15 Motion to Vacate Renewal of Judgment 614
Location: Merced
Judge: Foster, David A
Hearing Date: 2019.7.15
Excerpt: ...han the sixteen court days plus five calendar days required by Code of Civil Procedure section 1005, subdivision (b)), plaintiff implicitly waived defective notice by filing an opposition brief addressing the merits of the motion. The Court concludes defendant has not met his burden of proving a defense to the underlying judgment that would support vacating the renewal of judgment. (Code Civ. Proc., § 683.170, subd. (a).) A judgment debtor may c...
2019.7.8 Motion to Vacate Renewal of Judgment 614
Location: Merced
Judge: Foster, David A
Hearing Date: 2019.7.8
Excerpt: ...st give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call of your intent to appear does not satisfy the requirement of notifying the court. for service by mail (i.e., less than the sixteen court days plus five calendar days required by Code of Civil Procedure section 1005, subdivision ...
2019.7.3 Motion for Summary Judgment, Adjudication 487
Location: Merced
Judge: McCabe, Brian L
Hearing Date: 2019.7.3
Excerpt: ...tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725‐4240 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call of your intent to app...
2019.7.2 Motion to Compel Further Responses, Request for Monetary Sanctions 211
Location: Merced
Judge: Proietti, Donald J
Hearing Date: 2019.7.2
Excerpt: ...29, 31, 32, 33, 50, 51, 52, and 55 as well as Special Interrogatories, Set One, Nos. 18‐29. The Court notes that Petitioner has already provided a supplemental response to Request for Admission, Set One, No. 73 and the corresponding Form Interrogatory, Set One, No. 17.1. Petitioner's exercise of her right to privacy must give way in the face of the Court's duty to ascertain the truth of the allegations made in the contest here. As noted by the ...

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