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: ...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: ...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: ... 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: ...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: ...., 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...