Excerpt: ...o. (2001) 25 Cal.4th 826, 850.) A defendant meets this burden by showing that one or more elements of plaintiff's cause of action cannot be established, or that there is a complete defense thereto. (Ibid.) 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 par...

Excerpt: ..., "Defendants admit that the Plaintiff and Defendants are tenants‐in‐common." (Answer at 1:26.) Defendants now move for an order permitting them to file an amended answer. The proposed amended answer omits the foregoing statement. Other changes in the proposed amended answer are a request for jury trial, the assertion of eight new affirmative defenses, and a prayer that the Court declare that Plaintiff lacks title in and to the property, amon...

Excerpt: ...sought against one of the defendants is the payment of a stated amount of money alleged to be wrongfully withheld, such defendant may, upon affidavit that he is a mere stakeholder with no interest in the amount or any portion thereof and that conflicting demands have been made upon him for the amount by parties to the action, upon notice to such parties, apply to the court for an order discharging him from liability and dismissing him from the ac...

Excerpt: ...curred on appeal.” (Mtn. at p. 2:13‐14.) The rule does not mention costs being awarded as attorney's fees. (See Cal. Rules of Court, rule 3.1702(c)(1) [“A notice of motion to claim attorney's fees on appeal‐other than the attorney's fees on appeal claimed under (b)‐under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving an...

Excerpt: ...PS Store mailbox number that defendants apparently are using at 39506 Daisey Mountain Road, Anthem, Arizona 95086. The People request the Court order that CRC and Soscol, as limited liability companies, not be able to appear in this action without an attorney. Although the request is not properly before the Court as part of a noticed motion, the Court will restate the law on the issue to encourage the corporate defendants to promptly find new cou...

Excerpt: ...er or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. (Code Civ. Proc. § 472, subd. (a).) Similarly, a plaintiff may amend the complaint after the date for filing an opposition to the demurrer upon stipulation by the parties. (Ibid.) Defendant Specialized Loan Servicing LLC noticed a hearing on October 18, 2019, for its pending demurrer to ...

Excerpt: ...ack doctrine does not apply, and the actions as presently pled are time‐barred, then analysis of the remainder of the pleading is not necessary. If the doctrine does apply, and the two causes of action are not time‐barred, then plaintiff Stacee Cootes contends each argument defendants raised were raised and ruled upon on August 1, 2019. The moving defendants, defendants Cashel, Inc. (dba Napa Cashel) and Raja Development Co., Inc (collectivel...

Excerpt: ...el shall appear at the hearing, in person or by CourtCall, in the event plaintiffs' counsel appears without following the procedures set forth in Local Rule 2.9. Defendants Lil' Wave Financial, Inc. dba Superior Loan Servicing (“Loan Servicing”), Mark Capalongan, Sandra Capalongan, Jimmy Hui, Jing Feng, and Hou Sang Wong's demurrer to the first cause of action for violation of Civil Code section 2924d and second cause of action for violation ...

Excerpt: ...V2 Wine Group, LLC (V2), a company engaged in the marketing and sales of wine. Defendants move for an order compelling plaintiff Merryvale Vineyards LLC (Merryvale) to serve further responses to Defendant's First Request for Production of Documents Nos. 2, 3, 4, 6, 31, and 32. In order to prevail, Defendants are required to "set forth specific facts showing good cause justifying the discovery sought by the demand." (Code Civ. Proc. § 2031.310, s...

Excerpt: ...on OSC re: Dismissal, January 15, 2020, 8:30 a.m. in Dept. B. The notice of motion does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9. Respondent's counsel is directed to contact Petitioner's counsel forthwith and advise Petitioner's counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Respondent's counsel is unable to contact Petitioner's counsel prior to the hearing, Respondent's cou...

Excerpt: ...s (September 12, 19, 24) and its absence was both unexcused and fatal to reaching a global settlement. (Id., ¶¶ 3‐5.) As a result, Venuta claims First American violated California Rules of Court, rules 2.30(b) and 3.1380(b), requiring all persons with full authority to settle the case to personally attend the conference unless excused by the court for good cause. “The court may order a person, after written notice and an opportunity to be h...

Excerpt: ...tually produced; (3) remove non‐privileged communications from the privilege log and produce same; (4) conduct the required reasonable search and diligent inquiry for responsive documents; and, (5) produce electronic materials in original form.1 (Notice of Motion at 1:12‐21.) Plaintiffs served the subject requests on June 24, 2019. On July 22, 2019, Defendants filed a demurrer to several of Plaintiffs' causes of action. On July 29, 2019, Defe...

Excerpt: ...reasonably necessary to the prosecution of the litigation. (See Levy v. Toyota Motor Sales, USA, Inc. (1992) 4 Cal.App.4th 807, 816.) Defendant concedes these issues by its failure to oppose the request. Plaintiffs also request an award of $263,850 in attorneys' fees based on a lodestar calculation of $175,900, and 1.5x enhancement. The Court finds, based on the evidence presented, that the hourly rates Plaintiff used in the lodestar calculation ...

Excerpt: ...ted Berry's November 7, 2018 governmental tort claim (exhibit B) are the proper subject of judicial notice. Plus, defendant is asking the Court to take judicial notice of the facts contained within the exhibits, which the Court cannot do. As to exhibit B, there is no indication this was Berry's governmental tort claim. Defendant's demurrer to each cause of action on the ground of uncertainty is OVERRULED. An uncertainty demurrer is strictly const...

Excerpt: ...quest for Judicial Notice is DENIED as to: the Motion to Impose Stay filed on January 8, 2019 in Bankruptcy Case Number 19‐10027, attached as Exhibit 10 to Defendants' Request; and, the Plaintiff's Ex Parte Application for Temporary Restraining Order and OSC re Preliminary Injunction; Declaration of Bruce Chadbourne; Declaration of Nicholas H. Van Parys, Esq., [Proposed] Order filed on July 23, 2019, attached as Exhibit 13 to the Request. Neith...

Excerpt: ...n Van Leeuwen and Frans Simon Van Leeuwen and defendant signed and accepted a section 998 offer. Defendant offered to pay $100,001 in exchange for plaintiffs, in their individual and representative capacity, dismissing and releasing their claims against defendant. Importantly, the offer and lump sum payment applied not only to plaintiffs, but to all “others similarly situated.” On this basis, and assuming without deciding that section 998 app...

Excerpt: ... the matter. Plaintiff is instructed to contact the Civil Filing Division at the Napa County Superior Court to pay, subject to any applicable fee waiver, the: (1) transfer fees from the Napa County Superior Court; and (2) the filing fee for the Santa Cruz County Superior Court. The clerk is directed to transmit to the clerk of the court in Santa Cruz County a certified or exemplified copy of this order, together with all papers in the proceeding ...

Excerpt: ...' Request for Judicial Notice is DENIED as to: the Motion to Impose Stay filed on January 8, 2019 in Bankruptcy Case Number 19‐10027, attached as Exhibit 10 to Defendants' Request; and, the Plaintiff's Ex Parte Application for Temporary Restraining Order and OSC re Preliminary Injunction; Declaration of Bruce Chadbourne; Declaration of Nicholas H. Van Parys, Esq., [Proposed] Order filed on July 23, 2019, attached as Exhibit 13 to the Request. N...

Excerpt: ....) The insurance policy provided replacement cost estimates for the property. (Id., ¶ 40.) Defendant was obligated to calculate the replacement cost by analyzing the costs to rebuild the structure in accordance with the expenses, estimates, and assumptions set forth in 10 CCR §§ 2695.183(a)(1)‐(a)(5), 2695.183(b)‐(e), 2695.183(g)(2), and 2695.183(k). (Id., ¶¶ 40‐43.) Defendant failed to disclose the analysis, calculations, and informat...

Excerpt: ... prevent the fight, they met that duty because they reasonably supervised students and acted reasonably to prevent the fight from occurring; (3) plaintiff's claim that the district negligently hired, supervised, and/or retained its employees is unsupported by evidence; (4) plaintiff's cause of action for intentional infliction of emotional distress against defendants fails because plaintiff has no evidence to support her claim that defendants exh...

Excerpt: ...rein. The Court takes judicial notice of the rejection of the Government Claim of Jonathan Chisham, attached as Exhibit B to the RJN. The Court takes judicial notice of the unverified complaint filed in the present matter, but not for the truth of the matters asserted therein. The notice of hearing on demurrer does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9. Defendant's counsel is directed to contact P...

Excerpt: ...ted Berry's November 7, 2018 governmental tort claim (exhibit B) are the proper subject of judicial notice. Plus, defendant is asking the Court to take judicial notice of the facts contained within the exhibits, which the Court cannot do. As to exhibit B, there is no indication this was Berry's governmental tort claim. Defendant's demurrer to each cause of action on the ground of uncertainty is OVERRULED. An uncertainty demurrer is strictly const...

Excerpt: ...requiring the continuance. (Ibid.) Defendant moves, to continue the trial date in this matter, pursuant to Rules of Court Rule 3.1332, subd. (c)(6), which provides that good cause may be shown by a party's “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” Defendant asserts that, despite her diligent efforts, Plaintiff: failed to timely reply to discovery; failed to disclose ongo...

Excerpt: ...hich he filed on October 3, 2019. The Court set the current hearing to review the plan. The Court noted the expedited schedule was due to the fact the winter rains are approaching and plaintiffs' access to their property is in serious jeopardy, and the parties had an opportunity to hammer out a plan before a prior continuance. The Court deferred ruling on the bond issue until the costs of any plan were known. Webb offers a two‐step plan based o...

Excerpt: ...e causes of action against Doe defendants, named defendant Balloons Above the Valley, Ltd., a California limited liability company (BAV), and named defendant Scott Carroll. These causes of action arise out of allegations that Plaintiff Sylvia Seconi was injured in an accident involving a hot air balloon owned and operated by BAV and piloted by Carroll. On June 20, 2019, Plaintiff substituted Defendant Bob Barbarick for Doe 1. Barbarick demurs to ...

Excerpt: ...e grounds stated in the notice of motion. (See Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125‐ 26.) The Notice of Defendant's Motion to Compel Discovery from Plaintiff is silent as to the grounds for the motion. It states simply that Defendants “will move the court for an order compelling discovery from Plaintiff…in accordance with Code of Civil Procedure section 2031.” (Notice at 2:4‐5.) There is no section 2031 in the California ...

Excerpt: ...endant'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. Upon noticed motion, the Court may strike any “irrelevant, false or improper matter inserted in any pleading.” (Code Civ. Proc. § 436, subd. (a).) Among these, the Court may strike...

Excerpt: ...nder Code of Civil Procedure section 527.6. On September 15, 2017, the Court granted Hasty's motion to sever the equitable claims, including the sixth cause of action, from the legal claims. A court trial commenced on the third cause of action for declaratory relief and quiet title (Code of Civil Procedure sections 1060, 760.020, 761.020), fourth cause of action for abatement of private nuisance (Civil Code sections 3479, 3481, and 3501, and Code...

Excerpt: ...rd.” (Carehouse Convalescent Hosp. v. Super. Ct. (2006) 143 Cal.App.4th 1558, 1562.) However, the goodcause requirement for deposing an attorney applies when the deponent is “opposing counsel” in the litigation. (Spectra‐Physics, Inc. v. Super. Ct. (1988) 198 Cal.App.3d 1487, 1494‐95.) Blonien is not opposing counsel. It is apparent, as BVK demonstrates, that Blonien wears different hats beyond providing legal advice to the defendants. ...

Excerpt: ...ver defined portions of Cross‐Defendants' property. CrossDefendants here assert that each of these causes of action fails, as a matter of law, because Cross‐Complainants “are seeking relief through their Cross‐Complaint that would give them a prescriptive easement with exclusive use of the [subject areas of Cross‐Defendants' property].” (Support Memo. at 4:25‐26.) The party moving for summary judgment bears the burden of persuasion ...

Excerpt: ...efendant argues PG&E is an indispensable party to this action in that its absence will subject defendant to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations, and PG&E is an alleged active participant in whose absence complete relief cannot be afforded to the existing parties. The Court agrees. PG&E is a necessary party. (Code Civ. Proc., § 389.) Plaintiffs seek to hold defendant responsible for all damages ...

Excerpt: ...counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Capital One's counsel is unable to contact Cross‐Complainant's counsel prior to the hearing, Capital One's counsel shall be available at the hearing, in person or by telephone, in the event Cross Complainant's counsel appears without following the procedures set forth in Local Rule 2.9. Capital One demurrers to the Cross‐Complaint on the ground that the single cause of a...

Excerpt: ...he notice period. (Code Civ. Proc. § 1010.6, subd. (a)(4)(B).) By the Court's calculation, July 16, 2019 was the last day for service, by electronic mail, of a motion for summary judgment set for hearing on October 1, 2019. Service of the present motion was made July 18, 2019. “The court lacks jurisdiction to rule on a motion that has not been properly noticed for hearing on the date in question.” (Diaz v. Prof. Community Management, Inc. (2...

Excerpt: ...tion Proposal (2008 Proposal) as required under Labor Code section 3864. NGI further presents evidence that the indemnification provision was not included in any of the service reports, work orders, or invoice documents. Thus, according to NGI, there was no agreement to indemnify cross‐ complainant Konecranes, Inc. (Konecranes). Konecranes, however, submits evidence that the 2008 Proposal included Konecranes' terms and conditions, which contain...

Excerpt: ... relief (implied partnership); fourth cause of action for breach of contract to make a will; fifth cause of action for promissory estoppel; sixth cause of action for fraudulent misrepresentation; and seventh cause of action for promissory fraud is OVERRULED. 1 The Demurrer does not specify any ground of demurrer to the eighth cause of action. Arguments as to the propriety of such demurrer are therefore not properly before the Court. (Cal. Rules o...

Excerpt: ...ain requested additional responses. Huff served second amended responses in November, 2018. Plaintiff contends that Huff's responses to some fifteen form interrogatories remain incomplete, insufficient, non‐responsive, and evasive, and that objections thereto lack merit. In responding to interrogatories a party may provide answers, objections, or election to allow inspection and copying of records. (Code Civ. Proc. § 2030.210, subd. (a).) Each...

Excerpt: ...such authority. Defendant Alyssa Samrick's (Samrick) Demurrer to the Third Cause of Action for Breach of Fiduciary Duty on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS' LEAVE TO AMEND. Defendant State Farm General Insurance Company's (State Farm) Demurrer to the Third Cause of Action for Breach of Fiduciary Duty for failure to state facts sufficient to constitute a cause of action is SU...

Excerpt: ....4th 612, 616.) A demurrer for uncertainty should only be sustained when the complaint is so bad that the defendant cannot reasonably respond. (Id.) Here, the pleading is certain enough to allow NGI to understand the nature of the allegations, and the theory of liability in order to fashion an appropriate response. NGI's demurrer to the first cause of action for express indemnity on the ground the claim fails to indicate whether the purported agr...

Excerpt: ...ating to and based on those declarations. The Court may disregard new matters included in reply papers as inappropriate on the ground that such inclusion deprives the opposing party of the chance to respond or rebut. (Savient Pharmaceuticals, Inc. v. Dept. of Health Services (2007) 146 Cal.App.4th 1457, 1472.) As fully discussed below, Defendants not only could have raised these issues and included the additional materials in their moving papers,...

Excerpt: ... estimate about his primary job duties and responsibilities are exaggerated and not accurate as to preparing food for sale to customers, keeping the bakery sanitary, and ensuring delivery of customers' food. (Defendant's Response to Plaintiff's UMF, Nos. 4‐6, 8‐9.) Defendant also submits evidence that Brown's duties as an Executive Chef included various management and administrative responsibilities. (Defendant's UMF, Nos. 1‐5.) Thus, there...

Excerpt: ...Medical Center and underwent spinal surgery performed by Scott Berta, MD. Defendant Daniel Masluk, MD was responsible for administering anesthetic during the procedure. Dr. Masluk elected to use a Bard InfusOR pump supplied by QVMC to administer anesthesia to Plaintiff. During the surgery, a technician monitoring Plaintiff noticed EMG activity in Plaintiff's right hand and left deltoid. Dr. Bard stopped the surgery. A nurse went to Plaintiff's si...

Excerpt: ... student is liable for all damages the minor causes. Likewise, under Civil Code section 1714.1, the minor's “willful misconduct” resulting in an injury to another person is imputed to the minor's parent and the parent is jointly and severally liable with the minor for any resulting damages. There are triable issues of material fact as to whether defendant Tameiya Sadler committed willful misconduct, whether she acted in self‐defense, whethe...

Excerpt: ...e, § 452, subd. (d); Day v. Sharp (1975) 50 Cal.App.3d 904, 914.) Pursuant to Code of Civil Procedure section 581, subdivisions (f)(3) and (m), the Motion is GRANTED only as to Rockzilla, LLC. The Verified First Amended Cross‐Complaint of C. Randall Callahan and Raja Development Inc. (FACC) was only stricken as to Rockzilla, LLC. Rockzilla's Motion to Strike, filed March 2, 2018, was limited to the claims against Rockzilla. (See Motion, 5:8‐...

Excerpt: ...s a substantial interest in the action as a whole. [¶] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.'” (Fox v. Super. Ct. (2018) 21 Cal.App.5th 529, 533.) Although the motion is unopposed, the accompanying attorney declaration does not explain plaintiffs' medical issues to show “a preference is necessary to prevent prejudicing [their] interest[s] in the 2 Con...

Excerpt: ...r such heavy use. (Id.) Squires believes Hellman is ruining the road to such an extent that no one in the area will be able to access their properties. Consequently, Squires argues the proposed amendment seeking to add new causes of action for quiet title and declaratory relief, along with new cross‐defendants, is unrelated to the controversy in the original complaint.1 According to Squires, by seeking to add new claims and crossdefendants, Hel...

Excerpt: ...f's request for monetary sanctions is DENIED. Defendant did not oppose the motion, which means monetary sanctions are not warranted. (See id., § 2030.290, subd. (c) [providing that monetary sanctions are warranted against any party, person, or attorney who “unsuccessfully . . . opposes a motion to compel . . . .”].) ...

Excerpt: ...ed on claims administrator's website) (Cal. Rules of Court, rule 3.771(b)); (4) an explanation as to why English‐only notice is sufficient; (5) a discussion of how the parties will handle uncashed checks; and (6) why reliance on addresses alone, some of which are up to five years old for class members, will provide sufficient notice. The Court is concerned about the possibility of non‐returned mailings from stale addresses, especially when th...

Excerpt: ... Ex. B, ¶ 25.) Notice of entry of judgment was filed on April 30, 2018, in defendant's favor. Because defendant is the prevailing party, the Court turns to the application of the lodestar. Courts use the lodestar method for determining the amount of attorney's fees to be awarded to the prevailing party. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131‐32.) The lodestar is arrived at by multiplying the number of hours reasonably expended by couns...

Excerpt: ...yond the loss date of February 21, 2017, when a large tree fell and damaged a guest cottage on her property. The production of documents from Airbnb after the date of loss are reasonably calculated to lead to the discovery of admissible evidence as set forth in defendant's opposition. ...

Excerpt: ... with the precepts set forth in People v. Harbolt (1997) 61 Cal.App.4th 123, 126‐27 [discussing the limited purposes for which a court may take judicial notice of a court record: “Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached‐in the documents such as orders, statements of decision, and judgments but c...