Excerpt: ... evidence that establishes a prima facie case that CrossDefendant Jones Covey Group owed a contractual duty to indemnify Defendant/CrossComplainant TA Operating LLC, and that Cross‐Defendant Jones Covey Group breached that contractual duty to indemnify resulting in damages of $40,129.16. This evidence shifted the burden to Cross‐Defendant Jones Covey Group to provide a Separate Statement of Disputed Fact supported by admissible evidence estab...

Excerpt: ...mative defense. The Court finds that the allegations of the third cause of action for fraud do not plead the elements of fraud with sufficient particularity. “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645.) The particularity requirement necessitates pleading facts which “show how, when, where, to whom and by what means the representati...

Excerpt: ...eferee, a process far more expedient remedy than setting the matter for trial on a preference basis. Absent cogent objection by Plaintiffs, the matter will be referred to Hon. Lesley D. Holland (Ret.). ...

Excerpt: ...ent with the ruling on the motion. Explanation: A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850...

Excerpt: ... Deed], 2 [Dates Charlotte Rust worked for Caldwell Banker, 3 [Financial Contributions to purchase of property 478 Ashwood Court, Los Banos], 4 [Mortgage Payments made for 478 Ashwood Court, Los Banos], and 5 [Disposition of Proceeds from sale of 478 Ashwood Court]. She has not The following 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 no...

Excerpt: ...o alleged violations of California Civil Code § 1941.1, the First Cause of Action expressly alleges violation of California Health and Safety Code § 17920.3 and incorporates by reference allegations in Paragraph 44 that the alleged presence of bed buys violated 25 California Code of Regulations § 40, both of which appear to expressly apply to hotels. Accordingly, the demurrer to the First Cause of Action is OVERRULED. The Demurrer by Defendant...

Excerpt: ...favor of Defendant Horizon Farms, Inc. and against Plaintiff Tierras Schlies, L.P.and its counsel. First, the opposition establishes, by credible admissible evidence, a failure by Plaintiff Tierras Schlies, L.P. and its counsel to engage in a meaningful attempt to meet and confer prior to filing the instant motion. (CCP § 2023.010(i); Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.) The reply declaration and attached documents does ...

Excerpt: ...y Estoppel or false promise, (4) Quantum Meruit, and (5) Intentional Misrepresentation, all of which are based on the alleged failure of Nan Bunker to pay $65,000 to David Verbera in accordance with the terms of the May 17, 2017 Settlement Agreement and Release executed by David Verbara, Nan Bunker, and their respective attorneys, a copy of which is attached as Exhibit A to David Verbera's cross‐ complaint filed September 22, 2018. Paragraph A ...

Excerpt: ... California v. MarcosMillan Lopez, 18CR‐04706, currently pending before a criminal department of this court. Any request for relief to this court for relief in the criminal matter must be brought in the criminal matter. Second, the Civil Department of the Merced Superior Court cannot be used to appeal an decision by the Merced Superior Court in the criminal case pending therein. Third, the Jurisdictional Complaint does not state facts comprisin...

Excerpt: ...on that such interrogatories necessitate the plaintiff to create a compilation, summary or audit is unpersuasive. The discovery requests the plaintiff to identify evidence he claims establishes his damages. A plaintiff is required to provide evidence of damages as uncertainty as to the nature, existence or cause of damages is fatal to recovery. (Griffith v. San Diego College for Women (1955) 45 Cal.2d 501, 516.) As for the plaintiff's contention ...

Excerpt: ...ntiff's Request for Production and Inspection of Documents, Set One, within ten days of notice of entry of order. In accordance with Code of Civil Procedure sections 2023.030 and 2031.300(c), the Court imposes a monetary sanction against defendant Carrie Melissa Belt in the amount of $260.00, due and payable to plaintiff twenty days from notice of entry of order. The prevailing party is directed to prepare a written order consistent with the Cour...

Excerpt: ... by 180 monthly payments of $944.00. Defendant made good on his promise to repay, at least for the better part of two years. However, in or about October of 2017, defendant stopped making his monthly payments. He did not reach out to negotiate a loan modification, or seek any other relief. Instead, he just went silent. At present, there is still $71,944.64 due and owing on the loan. This does not include accrued interest and costs associated here...

Excerpt: ...s home. However, plaintiff contends that he has a 50/50 interest therein based on (1) his own contributions and (2) defendant's oral agreement to honor a “joint” interest therein. According to plaintiff, his name was not on title for tactical reasons. Before the Court this day is a defense motion for summary judgment. There is but one cause of action properly pled, and that is promissory estoppel. The evidence before the Court is that there w...

Excerpt: ... briefing), the plaintiff did not “beat” defendants' Section 998 offer. The prevailing party on this motion 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 as required by law and the California Rules of Court. The order is to be submitted by electronic filing to Hon. Brian L. McCabe. Defe...

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. ...

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...

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...

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...

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...

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...

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...

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:...

Excerpt: ...and special interrogatories served on February 22, 2019, is GRANTED. The Court notes that while plaintiffs' counsel has inexplicably filed some responses to the discovery with the court in lieu of opposition (see Code Civ. Proc., §§ 2030.280(a) and 2031.290(a)), in reply defendant's counsel has declared under penalty of perjury that plaintiffs' discovery responses have not been provided to her. Additionally, the one set of discovery responses d...

Excerpt: ...propriate where there exists a readily available reporter's transcript of the proceedings on which defendant's appeal is taken. To the extent defendant's application seeks court approval to prepare a settled statement as to court proceedings occurring in 1984, 1986, and 2008, the time to appeal the final judgment following those proceedings expired long ago and defendant's application is therefore denied. The prevailing party is directed to prepa...

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...

Excerpt: ...The following 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 CourtCall of your ...

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 ...

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...

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 ...

Excerpt: ...stantively deficient. Service of both motions was made via electronic means on May 24, 2019, and June 6, 2019, respectively. In order for service by electronic means to be proper, the parties must expressly consent to accept service of process in that fashion. See California Rules of Court, rule 2.251. The motions are also procedurally deficient in that they appear to be made on behalf of a corporation – Defendant Coast Xpress, Inc. – by a pe...

Excerpt: ...are 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 as required by law and the California Rules of Court. The order is to be submitted by electronic filing to Hon. Brian L. McCabe. Cross‐ Defendants' Motion to Compel Cross‐Complainants to Provide Further Responses to Discovery Cross‐ Defendants' Motion to Com...

Excerpt: ... 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 appear does not satisfy the requirement of notifying the court. Plaintiff's request for information as set forth in Form Interr...

Excerpt: ...09) 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 appear does not satisfy the requirement of notifying the court. contract, (2) plaintiff's performance or excuse for nonperformance, (3) ...

Excerpt: ...egligent infliction of emotional distress under either the “bystander” or “direct” theory set forth in legal precedent. (See Dillon v. Legg (1968) 68 Cal.2d 728 and Thing v. La Chusa (1989) 48 Cal.3d 644 with regard to the “bystander” theory and Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 with regard to the “direct” theory.) In opposition, Plaintiffs have failed to provide any additional facts they might allege whic...

Excerpt: ... 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. Defendants' meet their burden of setting forth allegedly undisputed material facts (UMFs) which, if actually undisputed, would support both summary judgment, and summary adjudication of the two...

Excerpt: ...attacking a witness' credibility, it may be shown that he or she has been convicted of a felony. Evidence Code section 788. Assuming the Court decides evidence of Cross‐Complainant's prior felony conviction may be admitted, Section 788 authorizes only two methods of proof of a conviction for impeachment purposes: the first is the “examination” of the witness, and the case law has developed limitations on the method of inquiry. The witness m...

Excerpt: ...y response because he did not receive a copy of the summons and complaint until May 22, 2019. However, plaintiff filed a proof of service executed by a registered process server stating under penalty of perjury that on April 15, 2019 he served a copy of the summons and complaint on defendant at his residence by substituted service followed by mailing an additional copy of the summons and complaint to defendant. Filing a proof of service from a re...

Excerpt: ... of Issues) as well as Issue 10 (Plaintiff cannot recover punitive damages) and DENIES summary adjudication of the other Issues (2‐9) set forth in the Defendant's notice, including that the Plaintiff's claim of retaliation brought under Health and Safety Code Section 1278.5 is barred, as follows. With regard to Defendant's motion for summary adjudication of Plaintiff's causes of action for retaliation, disability discrimination, failure to enga...

Excerpt: ...e Court recognizes this is not the vehicle “at issue” in the Plaintiff's complaint, it does appear that information related to the 2013 Lincoln MKZ Hybrid may be relevant to the ultimate determination of Plaintiff's damages (if any) in this action. Therefore Plaintiff's motion to compel with regard to Category 2 is GRANTED. However, Plaintiff does not demonstrate “good cause” to compel Defendant's responses to Category 4 – regarding com...

Excerpt: ...ding but not limited to the following: (1) Mattey Tucker is a necessary party in Michael Matthew Tucker, et. al. v. Thomas Anderson, et al., Merced County Superior Court Case No. 17CV‐01423, (2) the parties have stipulated to the consolidation, (3) the cases involve the same parties and are based on the same or similar claims; (4) the cases arise from the same or substantially The following tentative rulings shall become the ruling of the court...

Excerpt: ...fend claims against the principal. (See Probate Code section 24459.) However, in such a case, the agent may appear only as a guardian ad litem for the principal, after appointment by the court. Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1151–1152. Furthermore, the agent must appear in the action through an attorney. Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1829–1832. Therefore, the Court, on its own motion, strikes the Plain...

Excerpt: ...Merced Furniture, a canceled Limited Liability Company dba Lane Home Furnishings”, as it appears that Plaintiff's counsel erred in naming this entity as a defendant herein. Furthermore, the Court exercises its discretion to allow Plaintiff to file a First Amended Complaint naming as a defendant “Merced Furniture Inc. dba Lane Home Furnishings”. The First Amended Complaint shall be filed not later than ten (10) days after notice of entry of ...

Excerpt: ...summons and never had any conversation with a delivery person.” Defendant admits finding the summons in his front yard “many days later.” Plaintiff filed a proof of service executed by a registered process server stating under penalty of perjury that he personally served defendant on February 6, 2019 at 6:48 p.m. with a copy of the summons and complaint. Filing a proof of service from a registered process server that complies with statutory...

Excerpt: ...onths, Selig's conflict of interest is imputed to the entire Brunn firm, unless Brunn can show compliance with Rule 1.10(a)(2) of the California Rules of Professional Conduct, namely timely screening and written notice to the former client. Brunn fails to provide any details of the screening procedures used. Also, no written notice was given to the former client. Brunn argues that once Selig left the firm on April 11, 2019, Selig's imputed confli...

Excerpt: .... By failing to file a written opposition, defendant has not provided any explanation for his willful failure to comply with the order to provide discovery and therefore the Court concludes it is unlikely a lesser sanction would be effective. In accordance with Code of Civil Procedure section 2023.030, subdivisions (d)(1), defendant's answer is stricken. The moving party is directed to prepare a written order consistent with the Court's ruling fo...

Excerpt: ...ss of renting motor vehicles. Under federal law, a rental car company and its affiliates cannot be held vicariously liable for the negligent acts of its customers. (See 49 U.S.C. § 30106.) In this case, the complaint does not allege any non‐conclusory facts stating a cause of action for direct liability of the demurring defendants based on their negligence (such as negligent entrustment) or criminal wrongdoing. (See 49 U.S.C., § 30106, subd. ...

Excerpt: ... failing to file a written opposition, defendant has not provided any explanation for his willful failure to comply with the order to provide discovery and therefore the Court concludes it is unlikely a lesser sanction would be effective. In accordance with Code of Civil Procedure section 2023.030, subdivisions (d)(1), defendant's answer is stricken. Plaintiff shall submit a request for default and default judgment and supporting papers forthwith...

Excerpt: ..., 2018. Defendant has provided no excuse for her willful failure to comply with the court's order. Since defendant apparently has not participated in this litigation since filing her answer in June 2014, the Court concludes it is unlikely a lesser sanction would be effective. In accordance with Code of Civil Procedure section 2023.030, subdivisions (d)(1), defendant's answer is stricken. Plaintiff shall submit a request for default and default ju...

Excerpt: ... which the Court takes judicial notice, Plaintiff, a minor who sues via her guardian ad litem, filed a timely claim with the Defendant on January 8, 2018. The District rejected the Plaintiff's claim on February 8, 2018, and provided notice of its rejection of the Plaintiff's claim by certified mail to both Plaintiff and her legal counsel on February 9, 2018. As set forth in Government Code section 945.6(a)(1) ‐ Plaintiff was required to bring s...

Excerpt: ...rney's impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).) All other work product receives qualified protection; such material “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice.” (§ 2018.030, subd. (b).) Coito v. Superior Court (2012) 54 Cal.4...

Excerpt: ...otion admits that they were served with the summons and complaint on February 13, 2019, and in response they “moved out” of the premises rather than respond to the summons and complaint. 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 as required by law and the Califo...

Excerpt: ...App.4th 669. “An order granting summary judgment is not itself a judgment and hence is not directly appealable. Rather, an appeal lies only from the judgment entered pursuant to such order. [CCP § 437c(m); Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1570 (citing text); Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 628‐629 (citing text).” J. Appellate Review of Summary Judgment and Adjudication Or...

Excerpt: ...fy 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 CourtCall of your intent to appear does not satisfy the requirement of notifying the court. Defendant's demurrer to the complaint is OVERRULED based on insufficient notice. Unless an order sh...

Excerpt: ...settlement with Plaintiff was determined to be ‐ discharges the settling defendant (Machado) from liability to another defendant (Matos) for crossclaims of equitable contribution or comparative indemnity. “Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or...

Excerpt: ...).) Defendant served his demurrer on plaintiff by mail on March 25, 2019 and therefore did not provide the required minimum amount of notice. Defendant has not waived defective notice. The following 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...

Excerpt: ...tence, surprise, or excusable neglect." (§ 946.6(c)(1).) Department of Water & Power v. Superior Court (2000) 82 Cal. App. 4th 1288, 1291. Here Petitioner argues it was her counsel's inadvertent failure to name her in the original claim submitted to Respondent which constitutes the grounds on which her request for relief should be granted. The showing required for relief under § 946.6 because of mistake, inadvertence, surprise, or excusable...

Excerpt: ...d to Plaintiff William Emerich's attempt to file a missing persons' report related to decedent Tamara Kirby. While Defendant arguably met its burden of providing evidence showing that one or more elements of Plaintiffs' first cause of action for negligent infliction of emotional distress for negligent handling of a corpse cannot be established or that there is a complete defense to that cause of action because Defendant did not owe a legal duty t...

Excerpt: ...; 2) Failure to provide reasonable accommodation; 3) Discrimination on the basis of a disability (or perceived disability); and 4) Failure to take all steps reasonably necessary to prevent discrimination from occurring. However, in conjunction with her opposition to the Defendant's motion, Plaintiff dismissed three of her causes of action: the first, third and fourth. The only remaining cause of action at issue is the Plaintiff's second cause of ...

Excerpt: ... actual labor costs for agency staff, paralegals, electronic document preparation costs, and reasonable attorneys' fees, provided the attorneys' fees deal with record issues warranting legal expertise. However, mere compilation of staff reports, meeting agenda, minutes, meeting transcript(s), etc., other than reviewing the record to assure it complies with Code of Civil Procedure section 1094.5 would not seem to warrant the incursion of attorneys...

Excerpt: ...mary judgment, ALL of the moving undisputed facts should first be set forth in numerical order. Then, to support the requests for alternative relief, Defendant can restate the facts which support summary adjudication of each issue, by reference to the same number facts. For instance if there are ten (10) moving facts total, but only facts 2, 4, and 7 support summary adjudication of the first cause of action, only those facts should be stated. In ...

Excerpt: ...., C.E.N., made with regard to the applicable standard of care to be applied to the Plaintiff's cause of action for medical malpractice, the Court finds that there is no triable issue of material fact and Defendant is entitled to judgment as a matter of law. In addition, the Court considered the declarations of Mary Cox, R.N., B.S.N., and Christina M. Locher, and the evidence and exhibits attached thereto and filed in support of the Defendant's m...

Excerpt: ...errogatories, and request for production of documents within ten (10) days of notice of entry of order. Defendant has provided proof of service of the order on Plaintiffs by mail on January 2, 2019. By failing to oppose Defendant's motion for terminating sanctions, Plaintiffs have not met their burden of providing a satisfactory excuse for their willful failure to comply with the Court's order. (See Williams v. Russ (2008) 167 Cal.App.4th 1215, 1...

Excerpt: ...time. Numerous cases hold that severe sanctions (i.e., evidence or terminating sanctions) for failure to comply with a Court order are allowed only where the failure was willful. See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327. Defendant's moving pleadings fail to demonstrate to the Court that Plaint...

Excerpt: ...ion, Set Two, to Kelli (Cook) Mahoney and Request for Monetary Sanctions 4. Defendant Caltrans' Motion to Compel Further Responses to Requests for Production, Set Two, to Kevin A. Cook, and Request for Monetary Sanctions 5. Defendant Caltrans' Motion to Compel Further Responses to Requests for Admission, Set One, to Kelli (Cook) Mahoney and Request for Monetary Sanctions 6. Defendant Caltrans' Motion to Compel Further Responses to Requests for Ad...

Excerpt: ...ses – directed at the Plaintiff's fault and comparative fault for the accident in question – and Defendant Arturo Dehoyos III has admitted liability for the accident. By doing so, he has admitted that he has no facts to support the first three affirmative defenses asserted in his Answer, and therefore he has provided sufficient response to the Plaintiff's Form Interrogatory 15.1 – which specifically asks for facts, witnesses and documents w...

Excerpt: ...guilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Plaintiffs' moving Separate Statement of Undisputed Material Facts at Fact Nos. 8, 13, 24 and 33 states as follows: “(Defendant) Luna can state no facts to support his denials of material allegations and [a]ffirmative [d]efenses.” The following 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...

Excerpt: ...ess 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 appear does not satisfy the requirement of notifying the cour...

Excerpt: ...ce, demonstrate that Plaintiffs' eighth cause of action for slander is based on protected activity undertaken during an enforcement stop and the Plaintiffs' subsequent detention. Given the lack of any opposition, Plaintiffs have failed to demonstrate that they have a reasonable probability of prevailing on their claim that Officer Butler's (and/or any of the other responding officers') speech during the enforcement stop and subsequent detention a...

Excerpt: ...o the Defendants' motion, the Court finds that Defendants do provide sufficient “good cause” to support an order allowing an additional/second independent medical examination by licensed physician and board‐certified neurosurgeon Thomas Hoyt, M.D. on a date and time to be determined, pursuant to Code of Civil Procedure section 2032.310 et seq. Defendants' request for an award of monetary sanctions is DENIED, as the Plaintiff contested wheth...

Excerpt: ...ant's request for terminating sanctions without prejudice at this time. Numerous cases hold that severe sanctions (i.e., evidence or terminating sanctions) for failure to comply with a Court order are allowed only where the failure was willful. See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327. Defenda...

Excerpt: ...Court and can begin the process of transferring the case to Santa Clara County Superior Court. Plaintiff may also lodge another fee waiver application with the Superior Court clerk here in Merced County which can be considered by the Santa Clara County Superior Court upon its receipt of the transferred case. Plaintiff should consult the Civil Clerk's office with regard to instructions for how to lodge a fee waiver application here so that it may ...

Excerpt: ...ant has provided his proposed answer, and that Section 473.5 does not require it be verified, contrary to Plaintiff's argument in opposition to the motion. Additionally, the Court notes that arguments with regard to the effect of Defendant's purported personal guarantee on the deficiency amount are premature. Last, while the Court may impose conditions to remedy any “unfairness” to the Plaintiff engendered by vacating the default and default ...

Excerpt: ...notice of motion and be repeated, verbatim, in the separate statement of undisputed material fact.” (See e.g. California Rules of Court, rule 3.1350(b).) Defendant's moving separate statement of undisputed material fact fails to set forth, verbatim, any of the issues and/or causes of action upon which he sought alternative relief. Code of Civil Procedure section 437c, subdivision (c) provides that a motion for summary judgment shall be granted ...

Excerpt: ... there is no triable issue of material fact and Defendant is entitled to judgment as a matter of law. Defendant has proven his defense to the Plaintiff's cause of action – that he met the applicable standard of care at all times The following 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 ...

Excerpt: ...Compromise entered on February 6, 2019, does note that payment is to be made “no later than February 22, 2019” the language in the Court's order cannot amend or modify a material provision of the parties' Stipulation for Settlement. Further, the Court notes the Petition for Approval of Minor's Compromise was unopposed and it was counsel for Plaintiffs who sought “additional orders” related to the timing of the payments and who indicated, ...

Excerpt: ...sted in its ex parte application – including Plaintiff's request for leave to amend its complaint, an order shortening time for a hearing on a motion for preliminary injunction, and a temporary restraining order pending hearing on the motion for a preliminary injunction. However, Defendants failed to provide the Court with a proof of service for their “Response”, and therefore the Court cannot ascertain whether Plaintiff has received a copy...

Excerpt: ... v. Santa Clara County Bd. Of Supervisors (2010) 48 Cal.4th 32, 42; Stueve Bros. Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 321. Where a plaintiff alleges a cause of action which includes facts indicating the possibility that a statute of limitations applies, the plaintiff must also “plead around” the defense by alleging specific facts that would avoid the apparent defense. “Where plaintiff relies on a theory of … equitable tol...

Excerpt: ...anced on Defendant JP Morgan Chase's behalf. While the arbitrator awarded both Defendants costs against Plaintiff, the Court finds no provision in the statute for one Defendant seeking an award of costs “on behalf of” or “advanced for” another. Defendant JP Morgan Chase could have, and should have, filed its own Memorandum of Costs. With regard to the other claimed costs, the Court notes that Defendant Kalel Inc.'s electronic filing fees ...

Excerpt: ...e plaintiff's injuries, taking into consideration the facts and circumstances of the particular case. (Tech‐ Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499.) Taking into account all of the applicable Tech‐Bilt factors ‐ including a rough approximation of plaintiff's total potential recovery; the settling defendant's proportionate liability; the amount paid in settlement; a recognition that a settling party should pay ...

Excerpt: ...ur intent to appear does not satisfy the requirement of notifying the court. Defendant's Motion to Strike Portions of Plaintiff's First Amended Complaint Defendant's Motion to Strike Portions of Plaintiff's First Amended Complaint is DENIED. Although the challenged portions of the complaint may not be strictly necessary, Defendant admits they are not false or misleading and their inclusion does not prejudice the Defendant in any way. Further Defe...

Excerpt: ...The truth of any matters specified in Plaintiff's Requests for Admission, Set One, therefore are DEEMED ADMITTED. In accordance with Code of Civil Procedure sections 2023.030(a) and 2033.280(c), the Court imposes a mandatory monetary sanction against Defendant Humberto Urquizo in the amount of $260 due and payable to Plaintiff Kelstin Group, Inc., via its attorney Terry A. Duree, twenty (20) days from notice of entry of the Court's order. The pre...

Excerpt: ... and pay for transporting the vehicle to the inspection. Defendant shall be allowed to replace the water pump belt as well as make any other temporary repair necessary for defendant's inspection of the vehicle, including road testing. The following 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. ...

Excerpt: ...poration's lack of representation by counsel is a curable defect (see CLD Constr., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1149‐50), the motion is granted with leave to file an amended answer or substitution of counsel within 20 days of notice of entry of order. If defendant, represented by an attorney, does not file an amended answer or a substitution of counsel within 20 days of notice of entry of order, plaintiff may thereafte...

Excerpt: ...plaint contains inconsistent allegations, the complaint alleges sufficient facts in paragraphs 19, 46, 48, 50, 51, 52, 53, 57, 73, 75 and 76 to assert a claim for negligence based, inter alia, on the breach of a duty arising under Section 3378(b) of Title 15 of the California Code of Regulations and the alleged failure to protect the decedent from identified “enemies.” The complaint also alleges County defendants knew that the decedent was a ...

Excerpt: ...(c)(1)(A).) In this case, the answer filed by defendant pro se on August 30, 2018 includes a general denial. A general denial is sufficient to state a defense when the complaint, as it is here, is unverified. (Code Civ. Proc., § 431.30, subd. (d), (f).) In addition, plaintiffs have not cited any legal authority to support their contention that a plaintiff is entitled judgment on the The following tentative rulings shall become the ruling of the ...

Excerpt: ...ion” electronically filed on November 15, 2018 appears to be incomplete. The first page lists Exhibits A through J as attached to the document but only the first 18 pages of the document were received by the court. The 18 pages include a portion of Exhibit A but no part of Exhibits B through J. 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 o...

Excerpt: ...'l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795; Evid. Code. § 647.) The Court finds defendant's supporting declaration states insufficient facts to overcome the presumption of valid service. As plaintiff's filing of the first amended and supplemental complaint on January 18, 2019 presumably has reopened defendant's default, Surjit Gill shall file a responsive pleading to the amended complaint within the time required by California law...

Excerpt: ...ules that it is not. (Ibid.) While the Court concludes that defendant's motion is frivolous (see Newland v. Superior Court, supra), plaintiff's request for sanctions pursuant to Code of Civil Procedure section 128.5 is DENIED on the ground that section 128.5 does not apply to discovery motions. (Code Civ. Proc., § 128.5, subd. (e).) The prevailing party is directed to prepare a written order consistent with the Court's ruling for the Court's sig...

Excerpt: ...Defendant's memorandum of points and authorities raises several arguments, including: (a) the affirmative defense of consent, (b) the affirmative defense of assumption of risk, (c) plaintiffs' lack of evidence to support elements of breach of duty, intentional conduct, intent to defraud, breach of an express or implied warranty, and (d) insufficient evidence to support a punitive damages claim. The Court also notes defendant's separate The follow...

Excerpt: ...ation on the face of the complaint that the fifth cause of action is based on privileged communications. The Court therefore is not persuaded that the fifth cause of action contains “improper matter” or is “not drawn or filed in conformity with the laws of the state.” (Code Civ. Proc., § 436.) The unopposed motion to strike the prayer for relief at page 12, lines 6 through 12 of the complaint is GRANTED in part, without leave to amend. T...

Excerpt: ...nts shall file a responsive pleading within 15 days of notice of entry of order. ...

Excerpt: ...ubject to attachment therefore includes tangible personal property, business equipment, vehicles or vessels, business inventory, identifiable cash proceeds, deposit accounts, property in a safe‐deposit box, chattel, instruments, negotiable documents of title, and final money judgments. (See Code Civ. Proc., §§ 488.300‐488.485.) Therefore, the Court GRANTS plaintiff's application for a right to attach order and order for issuance of a writ o...

Excerpt: ...and Several Liability” is OVERRULED. The complaint alleges facts sufficient to show reasonable doubt as to which of the two named defendants are liable for plaintiff Roxana Stobaugh's injuries. It is unnecessary for the Court to determine also whether the complaint alleges sufficient facts showing a valid claim for joint and several liability. If the complaint states a cause of action under any legal theory, regardless of the title under which ...

Excerpt: ...2, 966‐967.) The Court must construe the complaint “liberally … with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The general demurrer by cross‐defendants Frank Duclo, Paula Duclo, and Frank Duclo, Jr. to the first cause of action for breach of contract in the first amended cross‐complaint The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to ...

Excerpt: ...th a copy of the summons and complaint by substitute service in 2015, did not learn of the lawsuit until June 27, 2018, and defendant's lack of actual notice of the lawsuit was not the result of evasion of service. 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 a...

Excerpt: ...law. The declarations of Dr. Friedlich and Dr. Blake present undisputed expert opinion that the medical care provided by defendant's employees fell within the applicable standard of care and did not proximately cause plaintiffs' alleged injuries. By not providing conflicting expert evidence to oppose the motion, plaintiffs have failed to meet their burden of showing a triable issue of material fact. (See Munro v. Regents of Univ. of Calif. (1989)...

Excerpt: ...ordance with Code of Civil Procedure section 2033.280, subdivision (c), the Court imposes a monetary sanction against defendant Cynthia Ann Soria in the amount of $260.00 due and payable to plaintiff twenty days from notice of entry of order. 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 ...

Excerpt: ...ission. In accordance with Code of Civil Procedure section 2033.280, subdivision (c), the Court imposes a monetary sanction against defendant Hector Perez Carranza in the amount of $260.00 due and payable to plaintiff twenty days from notice of entry of order. 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 ...

Excerpt: ... 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 appear does not satisfy the requirement of notifying the ...

Excerpt: ...ies 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. the answer are not so uncertain, ambiguous, and unintelligible that plaintiff is not reasonably apprised of the defense asserted by defendant. Further, an objection that the comp...