Excerpt: ...sed on the newly published California Court of Appeal case of Choochagi v. Barracuda Networks, Inc. (2021) 2020 Cal.App. LEXIS 1271” (Barracuda). “When an application for an order has been made to a judge, or to a court, and refused in whole or in part…any party affected by the order may…based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and m...

Excerpt: ...rovided with accurate itemized wage statements as WSE issued wage statements that did not show the name of the legal entity that is the employer. (Id., ¶¶ 9, 27.) Instead, “We Ship Express, Inc.,” an entity which is not on record as an entity with the California Secretary of State, is shown on wage statements. (Id., ¶ 27.) 11 Labor Code section 226, subdivision (a), requires employers to give employees, as a detachable part of their payche...

Excerpt: ... City of Napa (City). (See id. at ¶ 14, et seq.) City demurs, pursuant to Code of Civil Procedure section 430.10, on the grounds that the Plaintiff fails to allege facts sufficient to establish a dangerous condition of public property, and that Defendant is immune from liability pursuant to Government Code sections 830.4, and 830.8. A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc. §425.10, subd. (a)(1).) A...

Excerpt: ... the case, and has medical/health conditions that warrant the granting of preference, and on the further grounds that the granting of preference would serve the interests of justice. The evidentiary objections made by Defendant Napaidence Opco, LLC dba Napa Post Acute (Post Acute) are each OVERRULED. (Code Civ. Proc. § 36.5.) “A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall g...

Excerpt: ...y's fees pursuant to the Court's order issued on January 11, 2021.” (Motion at 1:23‐24.) Attorneys' Fees “The power of the trial court under Code of Civil Procedure section 664.6 is extremely limited. The court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement.” (Machado v. Myers (2019) 39 Cal.App.5th 779, 790.) Plaintiff expressly moves for a d...

Excerpt: ... required for disclosure a ground for disqualification of which the arbitrator was aware, including without limitation matters that could cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial.”; and, (2) “[T]he arbitrator exceeded her powers by arbitrarily remaking the parties' contract and deciding a question that was not before her and that the award cannot be corrected without a...

Excerpt: ...n is required to be furnished and an estimate of the anticipated claims rate; (3) why the time limit to object or opt‐out is reasonable; (4) why the submission of a claim form is necessary; (5) the cy pres recipient needs to be named rather than left generally to plaintiff's counsel's choice; (6) why does distribution to the cy pres recipient fill the purposes of the lawsuit or otherwise is appropriate; (7) declaration disclosing interests or i...

Excerpt: ...ear at the hearing, by Zoom, unless it is confirmed that no party requests oral argument. Defendant Divot Enterprises, LLC d/b/a/ Oakville East demurs, pursuant to Code of Civil Procedure section 430.10, subdivision (e) to the Complaint on the grounds that “plaintiff fails to state facts sufficient to constitute a cause of action for breach of contract against defendant.” (Demurrer at 2:6‐7.) The Court finds that the Notice of Demurrer suff...

Excerpt: ... the Court's tentative ruling system as required by Local Rule 2.9. Moving party/counsel is directed to contact the opposing party/ies forthwith and advise of Local Rule 2.9 and the Court's tentative ruling procedure. Because of this deficiency and notwithstanding the procedures set forth in Local Rule 2.9, the moving party/counsel shall appear at the hearing, by Zoom, unless it is confirmed that no party requests oral argument. The Proof of Serv...

Excerpt: ...Amended Cross‐Complaint by Cross‐Complainants Francis Wang, and Laura Wang (Wangs). The Court further orders a separate trial for the sixth, seventh, eighth, ninth, and tenth causes of action asserted through the First Amended Cross‐Complaint by Wangs against defendants Albert Czap (Czap), Martha Kongsgaard, and Mary Kongsgaard. Cross‐Defendant Albert Czap (Czap) moves, pursuant to Code of Civil Procedure sections 598 and 1048 for an orde...

Excerpt: ...ication of the lodestar. 1 Wyman also moves for an award of attorney's fees under Code of Civil Procedure section 1033.5. This statute deals with the awarding of costs, which can include attorney's fees authorized under a contract. Wyman did not move for an award of costs, but Civil Code section 1717 still provides the basis for the motion. 3 A. Prevailing Party Wyman is the prevailing party in this action. Civil Code section 1717 governs a fee r...

Excerpt: ...he Rupprecht declaration, within 5 calendar days. Defendants' motion to set aside the preliminary injunction pursuant to section 473(b) is DENIED. Even though defendants may have demonstrated inadvertence and excusable neglect, they have not brought forth any facts demonstrating a likelihood of success on the merits or the relative harm to them to demonstrate that the preliminary injunction is improper or the facts underlying it have changed. Und...

Excerpt: ...4, 2021, respectively. All deadlines calculated from the trial date are reset to the September 30, 2021 Trial Management Conference date. (See Local Rule 6.2.) [2] PLAINTIFF'S MOTION TO SEAL RE MOTION TO COMPEL DEFENDANTS' FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET FIVE TENTATIVE RULING: The motion is DENIED, without prejudice to Defendants filing a proper motion to seal.1 As explained below in the tentative ruling on Plaintiff...

Excerpt: ...2020.010, et seq., for an order quashing, or alternatively for a protective order regarding two deposition subpoenas for production of business records served on GVM by Petitioner/Plaintiff Duncan Miller (Petitioner). GVM asserts four grounds in support of its request to quash the subject subpoenas: 1) they demand the production of privileged attorney/client records, attorney work product and attorney client‐communications; 2) they fail to prov...

Excerpt: ...and for a mandatory injunction directing that the lien be immediately released, removed, and extinguished pursuant to Connolly Dev., Inc. v. Super. Ct. (1976) 17 Cal.3d 803 is GRANTED. A. Legal Framework Lambert established a procedural safeguard for owners subject to an unjustified mechanic's lien. (Cal Sierra Constr., Inc. v. Comerica Bank (2012) 206 Cal.App.4th 841, 850.) The owner may file a motion where “the issue presented is limited to t...

Excerpt: ...A. PROCEDURAL MATTERS 1. Plaintiff's Additional Separate Statement The Court notes that the document titled “Plaintiff Donald Veverka's Separate Statement of Additional Facts in Opposition to Defendant's Motion for Summary Judgment, or in the Alternative, Summary Adjudication” filed January 14, 2021 (Additional Sep. St.), is not drawn or filed in conformity with the Code of Civil Procedure and Rules of Court. A party opposing a motion for sum...

Excerpt: ... permits for the property, owed Bellisimo a duty (1) to supervise all pest control operations in Bellisimo's vineyard, (2) to ensure those pest control operations in Bellisimo's vineyard were performed in a careful and effective manner, and (3) to prevent those pest control operations in Bellisimo's vineyard from being performed in a faulty, careless, or negligent manner. Bellisimo raises in its notice of motion, as the source of the statutory du...

Excerpt: ... to file a response. The Court reviewed plaintiffs' supplemental memorandum of points and authorities, plaintiffs' supplemental White declaration, defendant's supplemental reply memorandum, and defendant's supplemental Hayashida declaration and now rules as follows: A. Evidentiary Objections 1. Zeigon Declaration Defendant's six evidentiary objections to Frank Zeigon's declaration are SUSTAINED. Zeigon's declaration is based on a “review of the...

Excerpt: ...ng, by Zoom, unless it is confirmed that no party requests oral argument. Petitioner, People of the State of California, moves the Court, pursuant to Code of Civil Procedure section 436 subdivision (b), for an order striking the claim filed by Claimant Leilani Ellis on the grounds that Claimant lacks standing. (See Memorandum at 2:4‐5.) Upon noticed motion, the Court may “[s]trike out all or any part of any pleading not drawn or filed in conf...

Excerpt: ...Code of Civil Procedure section 430.10 subdivisions (e) and (f), to the Complaint filed by Plaintiff Zachary Thayer in this action on the grounds that both causes of action asserted therein are: (a) uncertain, ambiguous, and unintelligible and; (b) fail to allege facts sufficient to state a cause of action. A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc. § 425.10, subd. (a)(1).) A demurrer is treated as �...

Excerpt: ...ent of presenting a tort claim.1 (See Notice of Hearing and Petition (Notice) at 1:22‐25.) The Petition is brought on the grounds that Petitioner failed to timely file his tort claim, but that such failure was excusable. (See Id. at 2:13‐22.) The Court denies the Petition because there is no indication in the record that the claim was filed late. Analysis of the petition requires a basic overview of the statutory process that a person wishing...

Excerpt: ... Complainant was required to file any opposition to the present demurrer on or before January 12, 2021. (See Code Civ. Proc. §1005, subd. (b).) No such opposition appears. However, on January 15, 2021, Cross‐Complainant filed a Verified Amended Cross‐Complaint (VACC). “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike...

Excerpt: ...tions that a proper meet and confer never took place, and that ordering additional conferring could help resolve these motions, limit the discovery requests and/or the number of objections at issues, or facilitate settlement. The parties' attorneys, Daniel Geoulla and Bridget McKinstry, are ordered to meet and confer via video conference at a mutually agreeable time on or before January 29, 2021. They shall thoroughly discuss each of the discover...

Excerpt: ...t of this notification, the clerk shall unseal and file the records. If Plaintiff does not notify the Court within 10 days of the order, the clerk shall (1) return the lodged record to the moving party if it is in paper form or (2) permanently delete the lodged record if it is in electronic form. Plaintiff Merryvale Vineyards LLC moves for an order authorizing the sealing of portions of documents associated with Merrvale's Motion to Compel Defend...

Excerpt: ...nstrues the Motion as One for an Order Declaring that the Subject Deed Restrictions are Unenforceable, and Not as a Motion to Enter Default Judgment Plaintiffs' Complaint prays the Court for a declaration that the real property commonly known as 3519 Broadway Street, in the city of American Canyon, county of Napa, California (Property) “is no longer bound by the [following] deed restrictions…and that said restrictions are hereby removed as a ...

Excerpt: ...compel” initial responses to judgment debtor interrogatories (set one) and judgment debtor requests for production of documents (set one) is GRANTED. The motion stems from defendants/judgment debtors John Tudal and Cerruti Cellars, Inc.'s apparent refusal to comply with the Court's (Hon. Wood) September 30, 2020 discovery order compelling them to serve verified code‐compliant initial responses without objections. Defendants argue the debtor d...

Excerpt: ...d Plaintiff Nicole Riedel moves, pursuant to Code of Civil Procedure sections 664.6 (Section 664.6), and 128, subd. (a)(4) (Section 128(a)(4)) for four specific forms of relief: 1. Entry of an interlocutory judgment on the terms of the parties' purported settlement agreement; 2. Appointment of a “third‐party permitting expert” to take control over the regulatory entitlements process for a construction project to be undertaken by Defendants ...

Excerpt: ... of the Venter Family Revocable Trust demur, both generally and specially, and pursuant to Code of Civil Procedure section 430.10, subds. (d), (e), and (f), to Plaintiff's First Amended Complaint (FAC), and to each cause of action asserted therein, on grounds of uncertainty, failure to allege facts sufficient to state a cause of action, and misjoinder of parties. The notice of motion does not provide notice of the Court's tentative ruling system ...

Excerpt: ...r an order directing Respondent to show cause why the Court should not issue such writ. Petitioner further seeks a declaration, pursuant to Government code section 6259 “signifying that Respondent has violated Petitioner's rights under” Government Code section 6250 et seq. (Notice of Motion at 1:26‐2:4.) This action arises from Petitioner's request for information, submitted to Respondent pursuant to the California Public Records Act (CPRA)...

Excerpt: ...itial responses, without objections, within 15 calendar days from the date of service of notice of entry of order. Defendants' request for monetary sanctions for bringing the motion is DENIED. Howell did not oppose the motion, which means monetary sanctions are not authorized. (See Code Civ. Proc., § 2031.300, subd. (c) [providing that monetary sanctions are authorized against any party, person, or attorney who “unsuccessfully . . . opposes a ...

Excerpt: ...nt Silverado Resort Investment LLC.” (See Notice of Motion at 2:6‐9.) This motion came on initially for hearing on September 4, 2020. By Minute Order of that date, the Court granted the motion in part, and ordered that “[a]ll discovery in the action is temporarily STAYED pending the hearing on Defendants' demurrers.” On December 3, 2020, the Court heard argument regarding defendants' respective demurrers. On December 15, 2020, the Court e...

Excerpt: ... Plaintiffs Raja Development Co., Inc., Cashel, Inc. and Carter Randal Callahan's evidentiary objections to exhibits 2‐3 as improper evidence being submitted on a demurrer are OVERRULED. (See ibid.) The district and the County's demurrer to the first cause of action for declaratory and injunctive relief (violation of Propositions 13, 62 and 218 – California Constitution, Articles 13A, 13B, and 13C, and Government Code section 53723) on the gr...

Excerpt: ...mmons on OSU and dismissing the action, on the grounds that the Court lacks personal jurisdiction over OSU, or, in the alternative, dismissing the action on the grounds of forum non conveniens. Factual and Procedural Background Through the complaint, Plaintiff contends that OSU breached the covenant of good faith and fair dealing implicit in their contractual relationship. That relationship is memorialized in a series of three successive contract...

Excerpt: ...uant to Code of Civil Procedure section 430.10, to the FAC on two grounds: (1) that Plaintiff fails to allege facts sufficient to establish that the subject roadway constituted a dangerous condition of public property; and (2) the City is immune from liability pursuant to Government Code sections 830.4 and 830.8. A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc. § 425.10, subd. (a)(1).) A demurrer is treated...

Excerpt: ...d deputy Steve Lombardi filed a consolidated demurrer to the third amended complaints in Golick and Loeber. Plaintiffs Marc Golick and Makena Golick (by and through her guardian ad litem Marc Golick), and plaintiffs Donald Loeber and Marie Loeber each filed separate oppositions to the consolidated demurrer. In its October 21, 2019 Order sustaining the demurrer to the first amended complaint with leave to amend, the Court ruled “[t]he county def...

Excerpt: ...t), and deputy Steve Lombardi filed a consolidated demurrer to the third amended complaints in Golick and Loeber. Plaintiffs Marc Golick and Makena Golick (by and through her guardian ad litem Marc Golick), and plaintiffs Donald Loeber and Marie Loeber each filed separate oppositions to the consolidated demurrer. In its October 21, 2019 Order sustaining the demurrer to the first amended complaint with leave to amend, the Court ruled “[t]he coun...

Excerpt: ... require bifurcating the issues raised by the TAPC and setting an evidentiary hearing on the foregoing causes of action. Through that Minute Order, the Court invited Petitioner to submit additional briefing on the following issues: (1) whether it is appropriate to bifurcate these issues; and if so, (2) whether the parties are prepared to schedule an evidentiary hearing on these causes of action. On October 23, 2020, Petitioner filed a document en...

Excerpt: ...e date of service of notice of entry of order. The County's request for monetary sanctions for bringing the motion is DENIED. White did not oppose the motion, which means monetary sanctions are not authorized. (See Code Civ. Proc., § 2031.300, subd. (c) [providing that monetary sanctions are authorized against any party, person, or attorney who “unsuccessfully . . . opposes a motion to compel . . . .”].) Code of Civil Procedure section 2023....

Excerpt: ... from the granting or denial of interim injunctive relief.'” (Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 443, quoting White v. Davis (2003) 30 Cal.4th 528, 554; see IT Corp. v. Cnty. of Imperial (1983) 35 Cal.3d 63, 72.) Hernandez demonstrates a likelihood of success on the merits of his claims. The relative balance of harms also favors Hernandez as he has shown he is likely to suffer greater injury from the denial of in...

Excerpt: ...ion for general negligence and premises liability in her complaint. The premises lability cause of action also contains counts for negligence [count one], willful failure to warn [count two], and dangerous condition of property [count three]. 2 The City's only ground for summary judgment contained in the notice of motion is that Devine cannot establish liability for a dangerous condition of public property against the City. Although not specifica...

Excerpt: ...asserted against entity defendants Oakmont Investments LLC and the Miller Alaska Trust. The demurrer is sustained with 10 days' leave to amend as to the eleventh cause of action for waste. In all other respects, the demurrer is OVERRULED. A. Factual Background Defendants John L. Miller (Miller), Oakmont Investments, LLC (Oakmont) and the Miller Alaska Trust (Alaska Trust) (collectively Miller Defendants) demur to the First Amended Complaint filed...

Excerpt: ...efanie Johnson on the grounds that “the first, second, third, fourth, sixth, and seventh purported causes of action contained therein: (1) fails to state facts sufficient to constitute a cause of action against 2 Defendant and (2) is uncertain, ambiguous and unintelligible as to the Defendant.” (Notice of Demurrer at 2:1‐4.)1 Through his initial reply brief, Defendant argued that “[n]othing in Plaintiff's Opposition to Defendant's Demurre...

Excerpt: .... Since jurisdiction is statewide, the venue rules serve to narrow geographically the place for trial.” (Weil & Brown, Cal. Practice Guide: Civil Proc. Before Trial (Rutter Group 2020) at § 3:450; see Cholakian & Associates v. Super. Ct. (2015) 236 Cal.App.4th 361, 373.) Defendant does not seek to transfer venue to another county in California, but to transfer the case to New York. The venue statutes, therefore, are inapplicable. Because the g...

Excerpt: ...tration is, in essence, a suit in equity to compel specific performance of a contract. (California Teachers Assn. v. Governing Bd. (1984) 161 Cal.App.3d 393, 399.) On a motion to compel arbitration, supported by prima facie evidence of a written agreement to arbitrate the underlying controversy, the court must determine whether the agreement exists and, if any defense to its enforcement is raised, whether the agreement is enforceable. (Rosenthal ...

Excerpt: ...session. Plaintiff instead seeks a prescriptive easement in its first cause of action. Because defendants did not address the prescriptive easement claim in their opening papers,2 or the equitable easement claims (second and third causes of action), they have not shown there has 2 In their reply, defendants attempt to correct their oversight by raising new argument as to the prescriptive easement claim and attaching new evidence. The Court has no...

Excerpt: ...appear at the hearing, by Zoom, unless it is confirmed that no party requests oral argument. Defendant Delicato Vineyards moves the Court, pursuant to Code of Civil Procedure section 1281, et seq., for an order compelling arbitration of Plaintiff Sherri Tueros' Complaint and staying any further proceedings pending that arbitration on the grounds that a written arbitration agreement covers the allegations of the Complaint. A proceeding to compel a...

Excerpt: ...s Application for Preliminary Injunction, filed in this matter on October 6, 2020; c. The Opposition to Silverado Napa Holding, LLC's Application for Preliminary Injunction, filed in this matter on October 6, 2020, by Defendants Tim Wall and TKW Resort Holdings, LLC. The Clerk is further directed to file in the record of this matter, each of Exhibits A, B, and C to the [Proposed] Order Granting Amended Motion to File Records Under Seal lodged Oct...

Excerpt: ...nt dismissing this entire action with prejudice, including the whole of the document denominated “verified First Amended Complaint” (FAC) on the grounds that the FAC adds a new plaintiff, Greener Future, 2 without leave of Court, and on the further grounds that plaintiff Colton Callahan failed to file an amended complaint within the time provided by the Court through its October 8, 2020 order sustaining Defendant's demurrer to the original co...

Excerpt: ...0, subdivision (d). If Defendant files and serves supplemental papers, Plaintiff may then file and serve, no later than November 25, 2020, supplemental opposition papers. Defendant may then file and serve a supplemental reply no later than December 4, 2020. Defendant Oregon State University (OSU), appearing specially, moves the Court “for an order quashing the service of summons on OSU and dismissing the action, or alternatively, to dismiss thi...

Excerpt: ...roperty. As plaintiffs succinctly frame it: “the fact that [Webb's] hillside is unstable and could fail at any time, the fact that it failed in the past, the fact that it has moved, has caused damage, and is obstructing the shoulder of Plaintiff's [sic] driveway access, and the fact that if it continues to move it will damage, obstruct and/or destroy the only access into the property, and the fact that Plaintiffs are now confronted with a secon...