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: ...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: ...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: ...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: ....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: ...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: ...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: ...) 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: ...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: ...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: ...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...