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...

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 ...

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...

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...

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...

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...).) 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: ... 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: ...; 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: ...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 ...