Excerpt: ...es that, pursuant to Local Rule 6.2, "the Trial Management Conference is deemed to be the commencement of trial for all purposes…." The hearing date on the motion is less than 30 days before the January 23, 2020 Trial Management Conference in the matter, in violation of Civil Procedure Code section 437c, subdivision (a)(3). However, in light of the fact that Plaintiff fully briefed the issues presented, and that the hearing date is 31 days befo...

Excerpt: ...the first cause of action for breach of contract/specific performance, second cause of action for declaratory relief, and third cause of action for breach of the covenant of good faith and fair dealing in the second amended complaint on the grounds the pleading is time barred, the 2007 Asset Purchase Agreement (“2007 APA”) expired by its own terms in 2008, plaintiff BVK Gaming, Inc.'s (“BVK”) total breach of the 2007 APA absolves any furt...

Excerpt: ...le to contact Plaintiff's counsel prior to the hearing, 2 The Court notes that Plaintiff raised the overarching issue of whether the Feb 21 Offer might be an option agreement only at the original hearing on the motion. Despite his having failed to raise the issue through his original moving papers, the Court permitted him to file a supplemental brief on the issue. Having now failed, in effect a second time to present any argument relating to the ...

Excerpt: ...reement, between the parties was formed. On February 21, 2019, Plaintiff William Wren, and his attorney Carrie Gallagher, and Defendant Richard Berridge, in pro per, participated in a mediation aimed at settling the present action. At the end of the mediation session, the parties drafted, and then each party signed, a writing (“Feb 21 Offer”), the introduction of which provides, “William Wren, his attorney Carrie Gallagher, and Richard Berr...

Excerpt: ...tion. Having given the matter reconsideration, however, the court finds the wine storage costs would constitute special damages that were not foreseen or adequately foreseeable as part of the parties' agreement in this case. This case is distinguishable from those cited in plaintiff's motion because, unlike premises that can always be expected to be utilized upon availability by the parties themselves or rented for use by others, the same is not ...

Excerpt: ... this motion. Plaintiff's objection to the Court taking judicial notice of the probation order is deemed moot. Plaintiff's request for judicial notice of the summons in Case No. 18FL000022 (exhibit A), the notice regarding payment of support (exhibit B) in that case, the notice of limited scope representation (exhibit C) in that case, and the fact defendant “is not a stranger to obtaining legal representation” is DENIED. These materials and t...

Excerpt: ...rial by jury. (Code Civ. Proc., § 631, subd. (g).) Defendant's motion is thin in terms of detailing inadvertence. (See Mackenzie Decl., ¶ 9, Ex. B [after plaintiff's counsel informed defendant's counsel that plaintiff was waiving her right to a jury trial, defendant's counsel responded in an October 29, 2019 email: “On further consideration, [defendant] will be seeking a jury trial.”].) But the Court believes it would be an abuse of discret...

Excerpt: ...as moot. Cross‐Defendant J. Stanley Teixeira is directed to submit to this court, within seven (7) days of service of the minute order, a proposed judgment dismissing the third‐party cross‐complaint of Oscar Luna. Explanation: The third‐party cross‐complaint filed by Cross‐Complainant Oscar Luna (“Luna”) raises causes of action: (1) abuse of process, (2) intentional infliction of emotional distress, (3) negligent infliction of emo...

Excerpt: ...dants did not defend their objections in their opposition, all objections are not substantiated, and thus are overruled. (Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 254.) The Court fails to see how the attorney‐client privilege or the work product doctrine apply as the interrogatory only seeks facts based on defendants' personal knowledge. A further response from each defendant is warranted because defendants did not provide the inf...

Excerpt: ...ers, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852, citing Munoz v. Davis (1983) 141 Cal. App. 3d 420, 425.) “Generally, it is based on a duty owed to the underlying plaintiff[.]” (Id.) Defendant/cross‐complainant Bruce Tucker Construction Inc. (“BTC”) alleges Ryan and Delta Consulting and Engineering of St. Helena (“Delta”) entered into a contract to provide design services related to the construction of ...

Excerpt: ...solidation of these matters would promote judicial economy in light of the fact that all four cases involve the same tragic incident, with a significant overlap of evidence and witnesses. Because plaintiffs Theodore Shushereba and Ceclia Rose Shushereba allege defendant Pathway Home is liable on account of failures on the part of their employees who happen to be two of the decedents in the related matters, the Court would consider a future motion...

Excerpt: ...el shall be available at the hearing, in person or by telephone, in the event defendants' counsel appears without following the procedures set forth in Local Rule 2.9. Plaintiffs Joanne Strickland and Clean! The Series, LLC's motion for a preliminary injunction is GRANTED. Plaintiffs seeks an order restraining defendants Lil' Wave Financial, Inc. dba Superior Loan Servicing (“Loan Servicing”), Mark Capalongan, Sandra Capalongan, Jimmy Hui, Ji...

Excerpt: ...issions are deemed admitted by defendants. (Code Civ. Proc., § 2033.280, subd. (b).) Plaintiff's request for monetary sanctions is DENIED. The request is not codecompliant. Plaintiff did not cite in the notice of motion a specific code section authorizing sanctions. (Code Civ. Proc., §§ 2023.030‐2023.040; see Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (Rutter Group 2018) at § 8:2000 [“The notice of motion must contain a r...

Excerpt: ...Defendant insurance agent/broker (Samrick) and Defendant insurer (State Farm) for damages arising out of the destruction of their home by fire. The Second Amended Complaint represents Plaintiffs' third attempt to allege a cause of action for breach of fiduciary duty. A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc. § 425.10, subd. (a)(1).) A demurrer is treated as “admitting all material facts properly pl...

Excerpt: ...r Illumina, Marcus Burch, declares his legal team conducted preliminary searches of certain systems, which did not result in any hits. (Bruch Decl., ¶ 3.) He adds that his legal team also made internal inquiries with applicable personnel in the finance and sales departments, and the personnel were entirely unfamiliar with RR Health. (Id.) Thus, it does not appear Illumina possess documents responsive to the subpoena. Moreover, based on the paper...

Excerpt: ...horities, the Sills are seeking further responses and production responsive to request for production of document numbers 17, 23, and 29‐30. The Court believes the appropriate provision for the motion may be Code of Civil Procedure section 2025.480, but it is not clear as the Sills failed to file the Notices of Deposition and Requests for Production of Documents as an exhibit. In fact, the Sills submitted no evidence whatsoever to support their...

Excerpt: ...e for the San Francisco County Superior Court. The Clerk is directed to transmit to the clerk of the Superior Court for San Francisco County a certified or exemplified copy of this order, together with all papers in the proceeding on file. The Defendants are directed to send notice to the parties. The case is set for a review hearing on September 18, 2019 at 8:30 a.m. in Dept. A of the Napa County Superior Court. The hearing is to confirm receipt...

Excerpt: ... and that as a result, the Court is without authority to issue sanctions pursuant to that section. In reply, Plaintiff contends that her meet and confer letter providing 23 days' notice of her intention to bring a motion for sanctions under Civil Procedure Code section 128.7, satisfied the requirements of section 128.5. Not so. The safe‐harbor provision at issue reads: If the alleged action or tactic is the making or opposing of a written motio...

Excerpt: ...e third, fourth, and fifth causes of action in the first amended verified cross‐complaint and make a request for judicial notice. A. Third Cause of Action The Belchers' demurrer to the third cause of action for quiet title/easement by necessity on the ground of failure to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND. Defendants/cross‐complainants Michael F. Nichelini and Kelly J. Nichelini, Robert Charles Lee and Terri Lynn, Nic...

Excerpt: ...the appeal of the U.S. District Court for the Central District of California's order [restricting the Defendant Attorney General of California…from enforcing California Health and Safety Code § 25982 against Plaintiffs' USDA‐approved poultry products containing foie gras] in Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris (C.D. Cal. Jan. 7, 2015) 79 F.Supp.3d 1136. On September 15, 2017, the United States Court of Appeals for the...

Excerpt: ...y as to WFM's ‘corporate policy' on retention and preservation of video because there was no such uniform policy at the time of the incident.” (Blaxter Decl. at 2:8‐11.) Plaintiff counters that “Defendant will have to produce those of its officers, directors, managing agents, employees, or agents who set policies to formally state on the record that there was no policy, and Plaintiff will have the opportunity to inquire further also on th...

Excerpt: ...loyee's job performance or opportunity for advancement in his or her career.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.) In making this determination, the terms and conditions of employment “must be interpreted liberally and with a reasonable appreciation of the realities of the workplace.” (Ibid.) The gist of Plaintiff's allegations in this case is that her assignment requests were denied in favor of a newly hired teache...

Excerpt: ... as a result of exposure to defendants' allegedly toxic products during Mr. Valva's career. Defendant Sherwin Williams Company (SWC) demurs to Plaintiffs' Complaint on the ground that it fails to state facts sufficient to sustain the fourth cause of action for fraudulent concealment. Specifically, SWC asserts that, “the Complaint contains no factual allegations of any fiduciary relationship, transaction, or even communication or contact between...

Excerpt: ...ction or proceeding.” (Code Civ. Proc. § 1032, subd. (b).) In order to recover costs, the prevailing party is required to file and serve a Memorandum of Costs. (Cal. Rules of Court, rule 3.1700(a).) To be recoverable, costs must be reasonable in amount and reasonably necessary to the conduct of litigation. (Code Civ. Proc. § 1033.5, subd. (c)(1)‐(3).) If the items listed in the Memorandum of Costs appear proper on their face, then the verif...

Excerpt: ...dant/cross‐complainant Bruce Tucker Construction Inc. (“BTC”) shall serve verified codecompliant further responses, without objections, within 20 calendar days of service of notice of entry of order. The motion is denied as to interrogatory numbers 304.1, 314.7, 321.2, 321.5, 321.9‐321.10, 323.1‐323.3, and 324.1. BTC objects to interrogatory number 304.1 on the ground of relevance because it deals with insurance policy numbers, effectiv...

Excerpt: ... counsel is unable to contact the opposing party prior to the hearing, defendant's counsel shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 2.9. Defendant JPMorgan Chase Bank N.A.'s motion to compel the depositions of plaintiffs Gerald L. Nunn and Judith L. Nunn under Code of Civil Procedure section 2025.410, subdivision (a), is DENIED. The c...

Excerpt: ...uding terminating sanctions consisting of an order striking the party's pleading. (Code Civ. Proc. § 2023.030, subd. (c).) If a party fails to obey an order compelling further response to interrogatories, “the court may make those orders that are just, including the imposition of…a terminating sanction….” (Code Civ. Proc. § 2023.030, subd. (d).) In lieu of, or in addition to, that sanction, the court may impose a monetary sanction….�...

Excerpt: ...s without authority to dismiss the action. On January 25, 2019, the Court entered an order sustaining Defendant Pacific Gas & Electric Co.'s demurrer without leave to amend. The Court therein announced its finding that it is without jurisdiction over the present matter. The Court set an OSC re: Dismissal for March 12, 2019. However, on January 30, 2019, Defendant filed a Notice of Stay of proceedings, pursuant to section 362, subdivision (a) of t...

Excerpt: ...ight to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032, subd. (b).)1 On February 26, 2019, the Court granted Defendant's motion for summary judgment as to all causes of action asserted by Plaintiff. Defendant is therefore the prevailing party in the action as to all counts and is entitled to costs “except as otherwise expressly provided by statute.” (Code Civ. Proc. § 1032, subd. (b).) Analysis of the present motion i...

Excerpt: ...d cause of action for medical battery on the ground of failure to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiff Tiffany Smeikal alleges Dr. Gordon performed a medical procedure beyond her conditional consent. (Second Amended Compl., ¶ 18.) “There are three elements to a claim for medical 2 Moreover, the Court finds no evidence that service under that section was effectuated. That section authorizes service on a person o...

Excerpt: ...y cannot be properly joined unless served with the summons and complaint; notice does not substitute for proper service. Until statutory requirements are satisfied, the court lacks jurisdiction over a defendant.” (Ruttenberg v. Ruttenberg, 53 Cal.App.4th 801, 808.) Once a defendant files a motion to quash, the burden is on the plaintiff to prove, by a preponderance of the evidence, the validity of the service, and the court's jurisdiction over ...

Excerpt: ...iper failed to satisfy any of the elements of Civil Code section 846 by not alleging the land was open to the public for a recreational purpose, Piper entered the premises for such a purpose, or Piper was engaged in any recreational activity. Based on the arguments going to the elements of the claim, Palmer is contending the complaint fails to state sufficient facts to state a cause of action. This is a ground for a general demurrer, but not for ...

Excerpt: ...0.10 [setting forth the permissible grounds to object to a pleading by demurrer].) No other grounds for the demurrer are stated in the notice. (Id., § 1010.) The County cites General of Am. Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 472, for the proposition that “[t]he broad discretionary power of the trial court to deny declaratory relief may be invoked by general demurrer.” This authority, however, is premised on setting forth a ground f...

Excerpt: ...le at the hearing, in person or by telephone, in the event plaintiffs' counsel appears without following the procedures set forth in Local Rule 2.9. Defendant Rodolfo Daquioag's demurrer to the first cause of action for negligence and second cause of action for premises liability on the ground of uncertainty is OVERRULED. An uncertainty demurrer is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can b...

Excerpt: ...hrough their opposition, they claim that both demurrer and motion to strike are rendered moot by their filing (the SACC). (Opposition Brief at 2:7‐25.) The SACC was improperly filed, and therefore the matters raised by the present motions remain at issue. Cross‐Complainants claim they were entitled to file the SACC, without leave, pursuant to Code of Civil Procedure section 472. That section provides that, “a party may amend its pleading on...

Excerpt: ...r Damages and Equitable Relief in the matter of Brewer v. First American Title Co. The Court finds that the fact of its filing is irrelevant to the issues presented in the present motion. Similarly, judgments entered by the Superior Court of California in and for the County of Orange do not constitute binding authority on this Court, and the Court finds that the fact of the filing of the Order Granting Final Approval of Class Action Settlement an...

Excerpt: ...ntegrity of the judicial process and prevent prejudice to the parties.” (Motion at 2:7‐13.) Rule 3.7 of the Rules of Professional Conduct provides that an attorney shall not act as an advocate in a trial in which the attorney is likely to be a witness unless: (1) the attorneys' testimony relates to an uncontested issue or matter; (2) the testimony relates to the nature and value of legal services rendered in the case; or, (3) the lawyer has o...

Excerpt: ...annot establish the elements of any of the causes of action contained in the first amended complaint. This is not a valid ground for summary judgment. (See Code Civ. Proc., § 437c, subd. (a) [a motion for summary judgment asks the Court to determine the entire action has no merit and to terminate the action without the necessity of a trial].) Defendants also did not advance any evidence in their separate statement as to why the entire action has...

Excerpt: ...QA), directing respondent County of Napa (County) to set aside and vacate its certification of the Final Environmental Impact Report (EIR) and project approvals for the Napa Syar Quarry Expansion Project. Upon review of the moving papers, the Court tentatively agrees with Petitioner on two grounds: (1) the EIR fails to provide sufficient evidentiary support for the County's decision to use the five‐year averaged operations baseline for measurin...

Excerpt: ...apa County Assessor, Napa County Auditor‐Controller, and Napa County Treasurer‐Tax Collector, contending there are no triable issues of material fact pertaining to their Complaint, in which Plaintiffs allege causes of action for (1) refund of property taxes, (2) declaratory relief, (3) denial of constitutional rights, (4) denial of procedural due process, and (5) writ of administrative mandamus. Preliminarily, as noted by Defendants, Plaintif...

Excerpt: ....5 applies to “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” (USS‐Posco Industries v. Case (2016) 244 Cal.App.4th 197, 215‐16, quoting Lab. Code, § 218.5, subd. (a).) “In such actions, ‘the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action...

Excerpt: ...rations filed on the party's behalf. [Citations.]” (See Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Here, the Court's order regarding the discovery responses are not subject to different interpretations as the responses admit the allegations supporting the complaint. Plaintiff's motion for judgment on the pleadings under Code of Civil Procedure section 438, subdivision (c)(1)(A), is GRANTED. (See Evans v. Californi...

Excerpt: ...r monetary sanctions for bringing its motion is DENIED. The request is not code‐compliant. Plaintiff did not cite in the notice of motion any code section authorizing sanctions. (Code Civ. Proc., §§ 2023.030‐ 2023.040; see Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (Rutter Group 2018) at § 8:2000 [“The notice of motion must contain a request for sanctions and must: . . . Cite the authority for such sanctions.”].) Any r...

Excerpt: ...rther responses to FLP's form interrogatories (FI) – general (set one) numbers 2.5, 8.4, 8.6‐8.8, 9.1‐9.2, 10.2, 12.2‐12.3 and 50.1‐50.6, FI – employment (set one) numbers 200.4, 201.1‐201.2, 204.3, 210.2‐210.4, 210.6, and 212.2‐212.3, and special interrogatories (SI) (set one) numbers 4‐14, 16‐21, 23‐25, and 27‐28.1 Plaintiff Vannessa Scott‐Allen opposes. A. Separate Statement Motions to compel further responses to in...

Excerpt: ...of the same transaction, occurrence, or series of transactions or occurrences . . . or asserts a claim, right, or interest in the property or controversy which is the subject of the cause of action brought against [cross‐ defendant].” (Code Civ. Proc. §428.10, subs. (b).) After the first trial date in the matter is set, a party must obtain leave of court to file a cross‐complaint against a third party. (Id. at § 428.50.) “Leave may be g...

Excerpt: ...pel arbitration and stay proceedings. That petition was based on an arbitration agreement with a class action waiver between Plaintiff and Defendant. On December 21, 2018, Plaintiff filed a First Amended Complaint asserting only one cause of action under California Labor Code, section 2698, et seq. (PAGA claim). Thereafter, Defendants renewed their petition to compel arbitration and stay proceedings. As an initial matter, Defendants contend that ...

Excerpt: ...) The moving party also bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. (Id. at p. 850‐51.) If the party carries this burden, there is a shift and the opposing party is then subjected to a burden of production to make a prima facie showing. (Ibid.) “In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to t...

Excerpt: ...ia. Four parties are involved in both: Langrebe Lath & Plastering, Inc. (LLP), a subcontractor; Davis/Reed Construction, Inc. (Davis/Reed), general contractor; L&W Supply Corporation (L&W), a materials supplier; and, Liberty Mutual Insurance Company (Liberty). Davis/Reed and Liberty bring the current motion to consolidate the two actions. LLP filed a Notice of Non‐Opposition. Only L&W opposes. “When actions involving a common question of law ...

Excerpt: ...in 20 calendar days of service of notice of entry of order. The City's request for monetary sanctions is DENIED. Devine did not oppose the motion, which means monetary sanctions are not warranted. (See Code Civ. Proc., §§ 2030.290, subd. (c) [providing that monetary sanctions are warranted against any party, person, or attorney who “unsuccessfully . . . opposes a motion to compel . . . .”]; 2031.300, subd. (c) [same].) The City raises for t...

Excerpt: ...ation and the arbitration requiring resolution of the arbitration first due to the contract between Altamura and plaintiff. Altamura contends he terminated his contractual relationship with plaintiff because plaintiff mismanaged his vineyard. (Id., ¶¶ 3‐5.) If Altamura is correct, then he had good cause to part ways with plaintiff, and plaintiff's claims against defendants for interfering with the contractual relationship will be less likely ...

Excerpt: ...ntegrated enterprise issues (before the discrimination, retaliation, and fraud liability, and damages issues), liability and compensatory damages, and punitive damages pursuant to Code of Civil Procedure sections 598 and 1048, subdivision (b), and request to preclude the admission of evidence of defendants' profits, wealth, or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds defen...

Excerpt: ... Hill property. The Bakers frame the question as not “‘if' the Vineyard will be redeveloped, it is ‘when' it will be redeveloped.” But there is no guarantee, as the Bakers proffer, that they will be allocated the vineyard land. The land the Bakers seek to develop is the subject of competing claims in this partition action with the Land Trust and defendants/cross‐complainants/cross‐defendants Bruno R. Solari, Giulia S. Nelken, Anthony ...

Excerpt: ...r law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213‐ 14.) In reviewing...

Excerpt: ...iff/cross‐defendant Nancy Ryan shall serve verified code‐compliant further responses, without objections except those based on the attorney‐client privilege and work product doctrine, and documents within 20 calendar days of service of notice of entry of order. Ryan served initial responses to the discovery requests on February 6, 2019. A party may move to compel further responses to written interrogatories if it deems that the party's resp...

Excerpt: ...d costs and expenses in the amount of $38,039.59, for a total award of $266,234.59, following settlement of claims brought under the Song‐Beverly Consumer Warranty Act, Civil Code sections 1790, et seq. Plaintiffs and Defendant are in accord that Plaintiffs are entitled to costs and expenses including attorneys' fees, based on: a) actual time expended; which, b) the Court determines to have been reasonably incurred in connection with the action...

Excerpt: ...entered against Defendant Berridge Wine Company, LLC on March 12, 2019, is hereby set aside. Clerk to give notice. The Court may, upon noticed motion of either party, set aside a void judgment. (Code Civ. Proc. §473, subs. (d)). The Court may also set aside a void default judgement on its own motion. (Security Pac. Nat'l Bank v. Lyon (1980) 105 CA3d Supp. 8, 13.) When a judgment is void, the Court must set it aside. (County of Ventura v. Tillett...

Excerpt: ... and the letter from Dr. Steven Gross. (Code Civ. Proc., § 2025.420; Webster Decl., ¶¶ 4‐5, Supp. Webster Decl., Ex. B [stating Ryan has an orthopedic condition requiring surgery, and will need to recover before being able to travel].) The Court realizes professional courtesies may have broken down in this case, which may have thwarted resolving this during the meet‐and‐confer process, but before the Court is a 78‐year‐old woman unde...

Excerpt: ...broker (Samrick) and Defendant insurer (State Farm) for damages arising out of the destruction of their home by fire. The Complaint sets out causes of action for professional negligence, negligent misrepresentation, and breach of fiduciary duty. A demurrer is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer test...

Excerpt: ...uth of the matters contained therein; and City of St. Helena Resolution No. 2009‐24 attached as Exhibit E to Petitioner's Request for Judicial Notice, but not for the truth of the matters contained therein. The Petition for writ of mandate is DENIED. The matter is set for OSC re: Dismissal on Thursday, May 23, 2019, 8:30 a.m., in Dept. B. A. Factual Background On November 27, 2018, the City Council of the City of St. Helena (City) adopted an or...

Excerpt: ...s that he would be testifying “regarding the surveyed location of the access road and easement, as well as possibly the topographical survey of the drainage area at issue in the complaint.” While Defendants certainly made clear throughout this litigation that they dispute Plaintiffs' claim that the easement at issue in this case is interrupted by a triangular encroachment, both sides have consistently referred to the 1978 survey as the operat...

Excerpt: ...d. SUSTAINED WITH LEAVE TO AMEND as to the Seventh cause of action for intentional infliction of emotional distress. A cause of action for intentional infliction of emotional distress requires (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. Heller v. P...

Excerpt: ...tion for medical battery, third cause of action for intentional misrepresentation, and fourth cause of action for violation of Business and Professions Code section 17200 on the ground of uncertainty is OVERRULED. An uncertainty demurrer is strictly construed, even where a pleading is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612,...

Excerpt: ...ablishing that plaintiff is entitled to the relief sought. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255. In establishing a claim for punitive damages, plaintiff must show by “clear and convincing” evidence that the defendant is guilty of oppression, fraud or malice. Civil Code § 3294(a). Plaintiffs fail to do so here, and fail to demonstrate how they may amend their Complaint to properly state a punitive damages claim. Accordin...

Excerpt: ...e, however, involved a dispute over the petitioner's claim to an easement. No easement is at issue in this case. Plaintiff does not allege that Defendant has presented any right to possession or title to Plaintiff's property. Plaintiff's first amended complaint asserts that “Defendant's conduct will eventually interfere with Plaintiff's possession of the Scott Property through the imposition of a servient easement in favor of Defendants across ...

Excerpt: ...led for May 30, and Trial set for June 3, are vacated. This action arises out of a dispute between Plaintiffs as borrowers/mortgagors relating to residential real property, and Defendants as the purported assignees of the related promissory note and deed of trust. Plaintiffs assert four causes of action1, based on claims that the transfers and assignments of the promissory note and deed of trust – in the course of the alleged securitization of ...

Excerpt: ...rygium excision with autograft on Plaintiff's right eye. Plaintiff now claims that he is experiencing complications, including double vision. At the time of the surgery, Plaintiff was incarcerated at the California Substance Abuse Treatment Facility and State Prison, Corcoran (“CSATF”). On January 8, 2018, this Court heard five motions in this matter: 1) Plaintiff's Motion for Appointment of Counsel, which was denied; 2) Plaintiff's Motion fo...

Excerpt: ...endants to file a reply.1 Cootes thereafter filed her second supplemental opposition along with a request for judicial notice. Cootes attached to the second supplemental opposition a proposed first amended complaint. Defendants filed their reply and an objection to the request for judicial notice. The Court subsequently granted Cootes' request to file a sur reply as well as a response to the objection to her request for judicial notice. The Court...

Excerpt: ...h, fifth, and sixth causes of action on the ground that the Court previously issued a tentative ruling in a different action is overruled. A tentative ruling is not a ruling. Plaintiffs dismissed the prior action before the Court ruled on the demurrer. Demurrer to the first cause of action (breach of contract) is sustained with leave to amend. The claim alleges that “Defendants failed to perform its duties” and “cancelled Plaintiff's loan m...

Excerpt: ... medical examinations. Defendant took plaintiff's deposition in October, 2018, and apparently made extensive inquiry regarding plaintiff's injuries. Plaintiff testified during deposition that he anticipated having a second shoulder surgery. Plaintiff disclosed his expert witnesses in this matter on November 28, 2018. On December 10, 2018, plaintiff moved ex‐parte for an order continuing the trial date based on the instability of plaintiff's rig...

Excerpt: ...th of the exam. Specifically, plaintiff argues Dr. Sarah Hall's time estimate is not consistent with the completion time the product manufacturers proscribe, an effective examination does not require a full administration of all of Dr. Hall's proscribed exams, and a two‐day sixteen‐hour exam is overly burdensome and a misuse of the discovery process. The Court takes each contention in turn. First, the product manufactures' proscribed time doe...

Excerpt: ... untimely. Ryan is correct that Code of Civil Procedure section 428.50, subdivision (a), sets out the time period for the filing of a permissive cross‐complaint: “A party shall file a cross‐complaint against any of the parties who filed the complaint or cross‐complaint against him or her before or at the same time as the answer to the complaint or cross‐complaint.” Ryan, however, fails to address subdivision (c) of the statute, which ...

Excerpt: ... officer, from attending the depositions. (Code Civ. Proc., § 2025.420, subd. (b)(12); see Willoughby v. Super. Ct. (1985) 172 Cal.App.3d 890, 892 [parties have the right to attend depositions].) Even if the Court was authorized to issue such a protective order, defendants have not demonstrated good cause to overcome plaintiff's right to have Mark Holderbein, Chief Operating Officer, present at the depositions. Although another officer could att...

Excerpt: ... Republic General Insurance Corporation's Memorandum of Points and Authorities in Support of Motion for Leave to File Complaint in Intervention.” Second, the Court (Hon. Stone) granted XL Catlin's request to file a complaint‐inintervention on August 21, 2018, which was brought against defendants GS Trucking, G.S. Nahal Trucking, LLC, Swaranjit Kaur, Bay Area Trans, U.S.A. Trucking, Inc., Hakirat Singh Sran, and Kavr Rovin. XL Catlin dismissed...

Excerpt: ...ew trial date for late September or early October 2019 and any other applicable dates. The Court plans on granting the motion as prayed, with all pre‐trial deadlines to be re‐set in accord with the new trial date. Pierce seeks to close all non‐expert discovery based on purported prior agreements between the parties, and to force defendants to withdraw any pending discovery requests, including deposition subpoenas directed to Pierce's employ...

Excerpt: ...y sanctions for bringing the motion is DENIED. Although Alejandre filed a response, he did not oppose the motion, which means monetary sanctions are not warranted. (See Code Civ. Proc., §§ 2030.290, subd. (c) [providing that monetary sanctions are warranted against any party, person, or attorney who “unsuccessfully . . . opposes a motion to compel . . . .”], 2031.300, subd (c) [same].) Weisberg's reference in the memorandum of points and au...

Excerpt: ...hall be available at the hearing, in person or by telephone, in the event defendants' counsel appears without following the procedures set forth in Local Rule 2.9. A. Request for Judicial Notice and Evidentiary Objections Plaintiff 3030 Airport Road, LLC's request for judicial notice is GRANTED as to Airport Sponsored Assurances of the Federal Aviation Administration (exhibit A), Napa County Lease Agreement No. 6621 (exhibit B), FAA registration ...

Excerpt: ...erving Jurisdiction on the Issue of Attorneys' Fees, signed November 27, 2018, and entered November 28, 2018, is hereby vacated. Defendant's request for $7,425.00 in attorneys' fees for the cost of preparing its motion for an award of attorneys' fees (below), made in the Opposition Memorandum, is DENIED. The request is not made through a noticed motion. Moreover, Defendant fails to assert which sanction power(s) it would have the Court exercise. ...

Excerpt: ...al request to continue the trial date out far enough to file a summary judgment motion. The Court also allowed defendant to file a reply to the opposition. The reopening of discovery appears appropriate due to the production of documents that occurred on February 1, 2019, and the possible failure to exhaust the discovery process via the production of internal email communications. Defense counsel represents that it now believes this matter can be...

Excerpt: ...dd an Indispensable Party is GRANTED. Plaintiff's Motion for Leave to File Sixth Amended Complaint to Add an Indispensable Party is DENIED. 1. PLAINTIFF'S REQUESTS FOR JUDICIAL NOTICE Plaintiff's Request for Judicial Notice is GRANTED in part. The Court takes judicial notice of: (a) Verified Complaint for Trespass, Foreceable Detainer, prescriptive Easement and Nuisance Abatement filed in this matter January 29, 2014, but not for the truth of the...

Excerpt: ...nquestionably a form of personal injury. (See Schwab v. Rondel Homes (1991) 53 Cal.3d 428, 432 [plaintiffs' emotional distress claim covered by Code of Civil Procedure section 425.10].) Swank's claim for emotional distress is not “incidental” to the causes of action in her complaint as one of the reasons she filed her pleading is due to the alleged emotional distress she suffered from the death of her dog. (See id. [an emotional distress clai...

Excerpt: ...solve the dispute. Through the Complaint in this matter Plaintiffs allege that Defendant failed to make certain disclosures to Plaintiffs relating to Defendants sale to Plaintiffs of residential real property. The Complaint asserts six causes of action relating to the same set of general allegations. The nature and scope of the allegations set forth in the Complaint are typical for this type of case. Through the present motion, Plaintiffs assert ...

Excerpt: ...efendant's Request for Judicial Notice is GRANTED in part. The Court agrees that California Evidence Code section 452, subsections (c) and (h) permit the taking of judicial notice of the records and files of the California Agricultural Labor Relations Board (ALRB). (Medix Ambulance Service, Inc. v. Super. Ct. (2002) 97 Cal.App.4th 109, 114, Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1749‐ 1750.) The Court takes judicial notice of the followin...

Excerpt: ...e Plaintiff's Request for Judicial Notice is GRANTED. The Court takes judicial notice of the Complaint filed by Plaintiff Francis Wang in this matter, but not for the truth of the matters alleged therein. C. Background This case involves a dispute between neighboring property owners over rights to a strip of land along the boundary of their respective properties. Plaintiff alleges to have lived on property commonly known as 460 Stonecrest Drive f...

Excerpt: ...endant has engaged in certain business transactions with Third‐Party Grant Reynolds. Reynolds acknowledges that he holds a lien on certain of Defendant's property. In an effort to explore these relationships, on or about November 14, 2018, Plaintiff applied to the Superior Court in and for the County of San Diego for an order of examination of Mr. Reynolds. Mr. Reynolds objected. In an apparent effort to focus its resources, Plaintiff withdrew ...

Excerpt: ...r's recommendations or, in the alternative, motion to correct and remedy the errors in these proceedings by instructing the Partition Referee he should recommend an allocation of water and recommend the scope of access as part of the partition proceedings is DENIED. This is an untimely motion for reconsideration not supported with any new or different facts, circumstances, or law. (Code Civ. Proc., § 1008.) The untimeliness of the motion notwith...

Excerpt: ...ant/cross‐complainant Angelena Checchi's recent discovery responses and document production. If Checchi believes there is a lack of duty or that the allegations are deficient, she may utilize the appropriate code provision to challenge the amended pleading. The liberality of permitting amendment of a pleading outweighs Checchi's asserted prejudice of delay in proceeding to trial and incurring additional fees. RD Winery shall file its proposed f...

Excerpt: ...pp. Decl., ¶ 4.) The request for a privilege log is granted as there is no indication defendant produced a supplemental privilege log. (Sakaguchi Decl., ¶ 11.) Defendant shall provide a supplemental privilege log if it believes that certain files are privileged. (Code Civ. Proc., § 2031.240, subd. (b); Hernandez v. Super. Ct. (2003) 112 Cal.App.4th 285, 291‐92.) Defendant shall serve its privilege log within 10 calendar days of service of no...

Excerpt: ...dicial Notice is GRANTED in its entirety. 3. Plaintiffs' Procedural Objections to Defendants' Motion for Summary Adjudication Plaintiffs' procedural objections are OVERRULED. Plaintiffs argue that the Court should deny Defendants' Motion for Summary Adjudication because of asserted defects in Defendants' Notice of Motion and Separate Statement of Undisputed Facts. Specifically, Plaintiffs assert that certain language is not repeated in the two do...

Excerpt: ...pies. The Court's February 1, 2019 Minute Order stated, “Plaintiff has not complied with Local Rule 3.3. Plaintiff is directed to provide courtesy copies of e‐filed documents not later than February 8, 2019.” Plaintiff failed to provide courtesy copies. Plaintiff's counsel is cautioned that any further violation of Local Rule 3.3, or failure to comply with the Court's Orders in this matter will result in sanctions. A. Factual Background Pla...

Excerpt: ...nded opposition brief) and prior to the hearing on the Court's motion re: Dismissal, any issues relating to whether the class‐action may be properly maintained in light of the present ruling relating to the named‐plaintiff. A. Defendant's Request for Judicial Notice The Request for Judicial Notice by Defendant Queen of the Valley Medical Center (QVMC) is GRANTED as to (a) DLSE Counsel H. Thomas Cadell's June 3, 1991 opinion letter, (b) Wage O...

Excerpt: ...hough plaintiffs again failed to satisfy California Rule of Court, rule 3.1324, by stating in the supporting declaration where the new allegations are proposed to be added by page, paragraph, and line number, the Court overlooks the deficiency because exhibit B to the Jones declaration is highlighted to allow the Court to determine where the additional allegations were added. Plaintiffs shall file their proposed first amended complaint by Februar...

Excerpt: ...Terminating Sanctions (Exhibit E), and Notice of Entry of Judgment on Verdict (Exhibit F) in Case No. 26‐ 56249; and (2) case information from the Court's website (Exhibit G), complaint (Exhibit H), and May 7, 2014 Order (Exhibit J) in Case No. 26‐62431; and May 23, 2018 Minute Order (Exhibit M) in this case. For the pleadings, the Court does not take judicial notice of the truth of the matters asserted therein. The request is denied as to ex...

Excerpt: ...pursuant to Civil Code section 3295. Preliminarily, the court voices its disappointment that counsel for both parties have filed these motions to be heard on the first day of trial, despite trial having been continued previously and despite knowing about the current trial date for the last four months. All of the issues raised in these motions have been patent to counsel for quite some time. Waiting this long to bring these issues to the court's ...

Excerpt: ...e claims on which the attachment is based are claims on which an attachment may issue; (2) plaintiff has established the probable validity of the claims on which the attachment is based; (3) the attachment is sought for no purpose other than the recovery on the claims on which the attachment is based.; and (4) the amount to be secured by the attachment is greater than zero. ...

Excerpt: ...ment Quieting Title entered September 16, 2005 in Napa County Superior Court Case No. 26‐29788. (2) DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION TENTATIVE RULING: Defendants' Request for Judicial Notice is GRANTED. The Court takes judicial notice of the Fifth Amended Verified Complaint for Prescriptive Easement and Nuisance of Plaintiff Kathleen McBride filed March 27, 201...

Excerpt: ...ilure to serve timely responses to requests for admissions necessitated a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c).) Brock failed to serve timely responses to the requests. However, Code of Civil Procedure section 2023.040 requires the moving party to support its motion with a memorandum of points and authorities. TRC, in its memorandum of points and authorities, supported its request for monetary sanctions w...

Excerpt: ...1, and 63‐68, request for admissions numbers 4‐5, 7, 10, 12‐15, 17‐20, 22, 30, 34, and 36, and request for production of documents numbers 5‐9, 14, 17, 19‐20, and 24‐28 is DENIED.2 The Court will not reach the merits because a review of the declarations reveals the meet‐and‐confer process was not exhausted prior to the filing of this motion. Defendant JPMorgan Chase Bank N.A. agreed to supplement various responses following a me...

Excerpt: ...ct Plaintiff's counsel forthwith and advise Plaintiff's counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Defendant's counsel is unable to contact Plaintiff's counsel prior to the hearing, Defendant's counsel shall be available at the hearing, in person or by telephone, in the event Plaintiff's counsel appears without following the procedures set forth in Local Rule 2.9. Defendant's Motion to Compel Further Responses to For...

Excerpt: ... unable to contact Defendant's counsel prior to the hearing, Plaintiff's counsel shall be available at the hearing, in person or by telephone, in the event Defendant's counsel appears without following the procedures set forth in Local Rule 2.9. Plaintiff's Motion for Order Compelling Further Responses to Request for Identification, Inspection and Production Nos. 5 and 9 is GRANTED in part. Defendant Tina L. Huff (Huff) shall serve verified code ...

Excerpt: ...ty to submit new evidence with a reply brief. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.) The decision whether to admit such evidence is within the trial court's discretion. (Id.) The Court finds that the evidence and legal argument sections of Petitioner's reply brief subject to the present motion are new, and improperly submitted. For this reason, the Court orders the following stricken from the record: A) Section II of the Reply...