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: ...usly and inexpensively." (Acuna v. Gunderson Chevrolet, Inc. (1993) 19 Cal.App.4th 1467 (Acuna), 1472.) It appears from the holding in Acuna that the Court is without authority to consolidate the small claims matter, Case No. 19SC000272, with the Superior Court cases. (Id.) However, the Court shares moving Defendant's concerns regarding even the possibility that issues that are at the heart of the subject Superior Court cases may be conclusively ...

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: ...Motion introduces significant ambiguity regarding the nature of the present motion. The statute provides as follows: A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no me...

Excerpt: ... question: does the phrase "regular rate of compensation," as used in Labor Code section 226.7, mean "base rate of pay," or does that phrase have the same meaning as the phrase "regular rate of pay," as used in Labor Code section 510. This question was squarely addressed by the Court in its September 11, 2019 Order Re: Queen of the Valley Medical Center's Demurrer and Motion to Strike (Order on Demurrer). Through its papers filed in opposition to...

Excerpt: ...ce of the Court's tentative ruling system as required by Local Rule 2.9. Defendants' counsel is directed to contact Plaintiff's counsel forthwith and advise Plaintiff's counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Defendants' counsel is unable to contact Plaintiff's counsel prior to the hearing, Defendants' counsel shall appear at the hearing, in person or by CourtCall, in the event Plaintiff's counsel appears without ...

Excerpt: ...ely v. Bozanich (2003) 31 Cal.4th 1230, 1242.) Defendants assert Sill cannot prove the falsity of the published statements and cannot show actual malice as a limited purpose public figure to maintain his claims. A. Undisputed Facts Sill is a vintner. (Defendants' UMF No. 8.) Sill owns real property located at 2929 Atlas Peak Road in Napa. (Id., No. 14.) At the time of purchase, the property had 24.5 total acres, with 10 acres of vineyards. (Id., ...

Excerpt: ...86 Cal.App.4th 399, 412; (2) why the time limit to object or opt‐out is reasonable; and (3) an explanation as to why English‐ only notice is sufficient. Plaintiff may file the additional material before or at the hearing. If the information is not submitted, the matter will be continued to January 15, 2020, at 8:30 a.m. in Dept. B to allow time for the additional information to be submitted. If the material is submitted and is sufficient, the...

Excerpt: ...default judgment had been entered. (Montanez Decl., ¶¶ 1‐4.) “[T]he undisputed failure to have served process is a defense to a separate action on a judgment. Therefore, the undisputed failure to have served the summons and complaint also provides a basis for a motion to vacate a renewed judgment.” (Fidelity Creditor Serv. v. Browne (2001) 89 Cal.App.4th 195, 202.) Plaintiff argues the motion is untimely under Code of Civil Procedure sect...

Excerpt: ...ontact all counsel prior to the hearing, Petitioner's counsel shall appear at the hearing, in person or by CourtCall, in the event either Respondent's counsel or counsel for Real Party in Interest appears without following the procedures set forth in Local Rule 2.9. Petitioner moves the Court for an order taxing Real Party in Interest Syar Industries, Inc's costs by $11,087.46. The subject costs are claimed, by Real Party in Interest, to be: $10,...

Excerpt: ...10, 12, 14, 25, 34, 35, 39, 40, and 44 to Petitioner's Motion to Complete the Administrative Record. The notice of motion does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9. Petitioner's counsel is directed to contact Respondent's counsel and counsel for Real Party in Interest forthwith and advise counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Petitioner's counsel is unable to co...

Excerpt: ...tion 2923.6 because she submitted a loan modification on November 7, 2019, and defendant Select Portfolio Servicing, Inc. is improperly moving forward with a foreclosure sale on November 15, 2019, despite not having made a written determination regarding the loan modification application. (Compl., ¶¶ 14, 17‐18.) “‘[A]s a general matter, the question whether a preliminary injunction should be granted involves two interrelated factors: (1) ...

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: ...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: ..., "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: ...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: ...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: ...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: ... 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: ...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: ... 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...