Excerpt: ...cks 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. (2017) 15 Cal.App.5th 1190, 1204-05.) As Defendants note, there is no proof of service of the moving papers on Defendants. However, "[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or ir...

Excerpt: ...to be filed under seal would relieve them of their obligation to serve unredacted versions thereof on Petitioner. (See, e.g. Notice of Motion at 2:13-14 ["[i]f the Declarations are not sealed, Respondents will be severely prejudiced because the public and the opposing party will have unwarranted access to their financial information"].) Respondents provide no authority suggesting that a finding pursuant to Rules of Court 2.5fl is sufficient to ex...

Excerpt: ...f $37,955 plus an award of costs in the amount of $777.60 against Plaintiff Charleen Wignall-Ewing on grounds that Miroglio successfully moved to strike pursuant to the cited code section and an award of fees is therefore mandatory. Defendant further seeks an award of $11,610 in fees and costs relating to the preparation and filing of the present moton and $3,825 m relating to the preparation and filing of the reply papers relating to the present...

Excerpt: ...n, 1:18-25 and 3:8-14.) The motion is DENIED in all other respects. Defendant Bruce Miroglio moves, pursuant to Code of Civil Procedure, section 425.16, for an order striking Plaintiff's First Amended Complaint, and for an award of attorneys' fees. Defendant so moves on grounds that Plaintiff's achon against Miroglio is based on acts taken in furtherance of Miroglio's rights to petition or free speech in connecton with a public issue. "The specia...

Excerpt: ...espondents' motion is statutorily authorized. 80th sides submitted supplemental briefing. Respondents' motion for summary adjudication is not statutorily authorized. Respondents move for summary adjudication under Code of Civil Procedure section 437c. Subdivision (f)(l) lists those matters that may be summarily adjudicated. It provides: "A party may move for summary adjudication as to one or more causes of action within an action, one or more aff...

Excerpt: ...ted to provide sufficient notice to [Plaintiff]1 . . . by serving the moving papers, as revised to reflect the continued hearing date [(June 24, 2022)], on Plaintiff's counsel by no later than May 27, 2022.” (Minute Order dated May 13, 2022.) On May 26, 2022, Defendant filed a Proof of Service on Plaintiff; however, the Court is unable to determine whether or not Defendant revised the hearing date for the motion from May 13, 2022 to June 24, 20...

Excerpt: ...he following facts appear to be uncontested. From in or around 2016 until March 2017, Plaintiff, as an independent contractor, provided project management services to Defendant relating to the development of a “state of the art equestrian facility and new horseback trail riding business.” (FAC at ¶ 10.) In March 2017, Defendant employed Plaintiff full‐time in the roll of equine‐manager for said business. It appears from the Complaint and...

Excerpt: ...lk) moves the Court for an order quashing the subpoena for her deposition and staying her deposition (under Code of Civil Procedure sections 2025.410) until the Court can rule on the contemporaneously pending Motion for Protective Order to Exclude Juan M. Martinez from Depositions (Motion to Exclude). 4 A. The Court Has Jurisdiction to Hear the Motion Plaintiff argues that Plaintiff's failure to provide adequate notice of the original (November 1...

Excerpt: ...l Specialists, Inc. (BASS) to submit its claims to binding arbitration and to dismiss the Cross‐Complaint pending the outcome of said arbitration. (See Notice of Motion at 2:5‐12.) A. Factual and Procedural Background The following facts appear to be undisputed. In or about February or March of 2017, BASS employed Plaintiff, pursuant to the terms of a written employment agreement. (See Complaint at ¶3, Cross‐Complaint at ¶1.) Plaintiff pu...

Excerpt: ...ce of this motion proper notice of the Court's tentative ruling system as required by Local Rule 2.9. Plaintiff is directed to immediately provide, by telephone call AND email, the missing notice to all parties forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely r...

Excerpt: ...rmine disputes that have arisen and are likely to continue in connection with the deposition. Plaintiff also seeks orders relating to the apportionment of costs and fees associated with the continued deposition, including those of the requested referee. Finally, Plaintiff seeks, pursuant to Code of Civil Procedure sections 2023.010, et seq., and 2025.010, et seq., monetary sanctions in the amount of $4,097.50 against Defendant and his attorney of...

Excerpt: ...) disclosing to a third party any of Plaintiff's trade secrets or items of Confidential Information, Plaintiff applies for a preliminary injunction (i) enjoining Defendant from using any of Plaintiff's trade secrets or items of Confidential Information; (ii) enjoining Defendant from disclosing to a third party any of Plaintiff's trade secrets or items of Confidential Information; and (iii) compelling Defendant to make her media devices to which s...

Excerpt: ...ear to be uncontested. From in or around 2016 until March 2017, Plaintiff, as an independent contractor, provided project management services to Defendant relating to the development of a “state of the art equestrian facility and new horseback trail riding business.” (FAC at ¶ 10.) In March 2017, Defendant employed Plaintiff full‐time in the roll of equine‐manager for said business. It appears from the Complaint and memorandum filed in s...

Excerpt: ...e, § 3294, subd. (a).) Civil Code section 3294, subdivision (a), provides that “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” In Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 896, the Supreme Court held that punitive damages may be sought w...

Excerpt: ...GRANTS the motion to compel arbitration and stay judicial proceedings. Defendant BVK Gaming, Inc. moves for an order compelling Plaintiff to arbitrate her claims against Defendant and staying the matter pending the completion of such arbitration. Defendant failed to include in the notice of this motion proper notice of the Court's tentative ruling system as required by Local Rule 2.9. Defendant is directed to immediately provide, by telephone cal...

Excerpt: ...cipating in any deposition conducted in this action. The motion continues. “MOVANTS seek an order of protection excluding MARTINEZ from attendance or participation, in any manner—be it in person, via video/zoom/remote means, electronically or otherwise—from the deposition of any party, witness, expert, entity or otherwise. MOVANTS also seek an order that future depositions occur remotely, absent leave from the court otherwise and, furthermo...

Excerpt: ...injury to person committed to a mental institution).1 I. PROCEDURAL MATTERS A. Defendants' Request for Judicial Notice Defendants' request for judicial notice filed August 5, 2021, is DENIED. The subject matter of the request is not relevant to the Court's resolution of the issues raised through the demurrer. Defendants' request for judicial notice filed October 7, 2021 is GRANTED. Plaintiff's objections thereto are OVERRULED. Plaintiff's request...

Excerpt: ... The Court's September 4, 2020 stipulated order authorizing proceeding with declaratory relief is VACATED. The Court SETS the matter for continued hearing on Plaintiff's petition to compel arbitration on December 28, 2021, at 8:30 a.m. in Dept. A. Plaintiff is invited to submit, no later than December 10, 2021, a supplemental brief in support of her petition to compel arbitration, of no more than 10 pages in length, addressing any issues relevant...

Excerpt: ...nder. Plaintiffs are granted 10 days' leave as to the sixth, eighth, ninth and tenth causes of action. The court addresses the demurrer as to each cause of action as follows: 1. First and Second Causes of Action – Based in Contract Plaintiffs expressly concede that the demurrer is proper as to the first cause of action for breach of the implied warranty of habitability and the second cause of action for breach of the covenant of quiet enjoyment...

Excerpt: ...code‐complaint initial responses and documents to form interrogatories – employment (set two), form interrogatories – general (set two), and requests for production of documents Failure to comply with a court order to provide discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (g).) Faced with misuse of the discovery process, the Court may impose whatever sanctions are just, including issue sanction...

Excerpt: ...ating an appearance of impropriety which violates the public trust in the scrupulous administration of justice and the integrity of the bar.” (Notice of Motion at 2:3‐5.) Plaintiff further asserts that the order is necessary as GNH has “sought to gain an unfair advantage in this 9 litigation by obstructing [Plaintiff]'s access to witnesses by rushing to represent them as soon as their depositions are noticed.” (Id. at 2:9‐12.) Plaintiff...

Excerpt: ...t to state a claim under any of the purported causes of action. Specifically, Defendants argue that each cause of action asserted through Plaintiff's FAC is barred by the statute of limitations. (Support Memo at 1:8‐0.) Defendants' request for judicial notice (RJN) is GRANTED. The Court takes judicial notice of Exhibit A to the RJN, but not for the truth of the matters asserted therein. The Court further takes judicial notice of Exhibits B, C a...

Excerpt: ...n of allegations in support of the causes of action as to which the present demurrer is sustained. 3 Defendant/Respondent County of Napa (Defendant and/or County) demurs, pursuant to Code of Civil Procedure sections 430.10, 430.30, and 430.50, to the Second Amended Verified Complaint (SAC) filed by Plaintiff/Petitioner (Plaintiff) on the grounds that Plaintiff fails to allege facts sufficient to state a claim. Defendant's request for judicial not...

Excerpt: ...es no mention of the trust or the trustmanager as a contracting party. According to Erik, this means he was misjoined as an improper party. Erik fails to account for the allegations in the pleading and instead relies entirely on the agreement attached as Exhibit 1. Plaintiff Blue Bay Ventures, LLC alleges in its amended complaint that it “was under contract with Defendants to purchase the real property commonly known as 1527 Juanita, Napa, CA 9...

Excerpt: ...in this action. The factors to be taken into account in the determination of whether a settlement is in “good faith” include, but are not limited to: a rough approximation of plaintiff's total recovery 2 and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than if found liable after a trial. (See Tech‐B...

Excerpt: ...y estoppel (paragraphs 40‐46); fifth/sixth cause of action for negligent misrepresentations (paragraphs 51‐55); and seventh cause of action for violations of California Civil Code section 2924.17 (paragraphs 79‐90). 1 The motion is made on the grounds that the FAC is not verified and that the subject matters are improper. “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems ...

Excerpt: ...hat it is unclear which agreement BVK seeks to compel to arbitration. (Opp. at p. 1 n.1.) It does not appear BVK directly responded to this issue in its reply. The Court expresses the same uncertainty. On one hand, it appears the 2013 agreement is at issue because BVK cited extensively to Exhibit A in its memorandum of points and authorities, albeit with one reference in a footnote (with no explanation as to its relevance), that Mean “signed th...

Excerpt: ...s December 4, 2020 order for distribution of personal property was not sufficiently clear to allow for a tidy resolution of all concerns 3 regarding the personal property in the trust that was contemplated to be divided roughly in an equal manner between the three beneficiaries. It has become further apparent that Plaintiff Duncan Miller (“Duncan”) was not fully able to comply with the December 4, 2020 order due to physical and financial defi...

Excerpt: ...this litigation and defendants are entitled to gauge her credibility in person. Plaintiff's concern that she may contract COVID‐19, after electing not to be vaccinated, as a reason for not wanting to appear for her in‐person deposition appears to not be well‐taken, as the 3 evidence presented with the reply indicates plaintiff has no qualms about travelling around New York City with limited, to no preventative measures being taken. The evid...

Excerpt: ...can be reached that would resolve the objections to be raised in the demurrer.” The parties have not met this requirement. The Culligan declaration, filed at the same time as the demurrer, indicates defendant's attorney sent a letter on June 2, 2020 – over a year before filing the demurrer – explaining why it was an error to include the trust as a party to this lawsuit. (Culligan Decl., ¶ 2.) Thereafter, a second declaration was filed stat...

Excerpt: ...not, then the court will make orders for that to occur and the new master list to be circulated. If so, the court will address the reconciliation of the various personal property lists as a master list. 3 Once the foregoing “master list” issue is resolved, the court intends to adopt the following ruling: The petition for instructions is GRANTED, in part, to provide an amended order for the finalization of the distribution of the personal prop...

Excerpt: ...dingly, of limited scope, generally dealing only with the issue of right to possession and not other claims between the parties, even if related to the property.” (Larson v. City & Cnty. of San Francisco (2011) 192 Cal.App.4th 1263, 1297.) This is not an ordinary landlord‐tenant dispute. But it is a straightforward contract interpretation case involving a force majeure (FM) provision. For all the reasons discussed below, the court concludes W...

Excerpt: ...able probability that they will prevail in their claims against Defendants. If Plaintiffs fail to do so, the stay of the action will remain in effect until, at least, November 8, 2021. Therefore, the hearings on Plaintiffs' Motion to Set Aside Order to Expunge Lis Pendens, and on Plaintiffs' Motion to Vacate Dismissal of Causes of Action with Prejudice are both CONTINUED to December 8, 2021, at 8:30 a.m. in Dept. A. 3 A. PROCEDURAL MATTERS Defend...

Excerpt: ... to, and to produce all non‐privileged documents in Defendants' possession, custody or control that are described in Merryvale's Request for Production of Documents, Set Six. A civil litigant's right to discovery is broad. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably c...

Excerpt: ...ause exists 4 because of Ms. Moize's refusal to answer certain questions and to produce certain documents during her original deposition It is beyond question that persons have a significant interest in maintaining the confidentiality of private communications with their attorneys. Such information is only “within the attorney‐client privilege,” however, if it satisfies the statutory requirements set out in Evidence Code section 950, et seq...

Excerpt: ...ord Hanna v. Little League Baseball, Inc. (2020) 53 Cal.App.5th 871.) On September 13, 2021, Plaintiff filed a motion pursuant to California Code of Civil Procedure section 391.1 in the related case number 19CV000046. Plaintiff presents no authority suggesting that the pendency of the motion in that case stays the proceedings in this case. Neither authority cited supports the proposition. There is no proof of service of the motion or related pape...

Excerpt: ...ion are SUSTAINED/GRANTED, respectively, with leave to amend retroactively granted, such that the second amended complaint shall stand as the current operative pleading. The Court notes plaintiff did not follow proper procedure, since only a first amended complaint may be filed without leave of court. (See Code Civ. Proc., § 472; see also Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 575 (“Under section 472, the right to amend a cross‐ com...

Excerpt: ...against defendants are uncertain, ambiguous and/or unintelligible.”4 (See Demurrer at 3:26‐28, 4:3‐6, and 4:12‐15.) The notice of motion does not provide notice of 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. Notwithstanding the procedures set forth in Local Rule 2.9, t...

Excerpt: ...d 2.551, for an order sealing the redacted portions of the following documents: 1. Plaintiffs' Response to Defendant's Second Supplemental Opposition to Plaintiffs' Motion to Disqualify Robert Crockett and Crockett Associates as Counsel for Defendant (Subject Response); 2. Declaration of Brett Lay in Support of Plaintiffs' Motion to Disqualify (Subject Lay Declaration); 3. Exhibits and attached to the Declaration of Jonathan M. Jenkins in Opposit...

Excerpt: ... the Dickens declaration (¶ 5 at p. 2:1‐3 and Ex. D) and Dr. Whitfield's four evidentiary objections to the Shuman declaration and three evidentiary objections to the Pregerson declaration are OVERRULED as not code‐ compliant. (See Cal. Rules of Court, rule 3.1354(c) [“A party submitting written objections to 2 evidence must submit with the objections a proposed order.”].) Moreover, the Court has not considered the Dickens reply declarat...

Excerpt: ...m 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. 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. Terlato's request for judicial notice is GRANTED. The Court takes judicial notice o...

Excerpt: ...ey of record, monetary sanctions in the amount of $1,460 within 10 days of notice of entry of the present order. Plaintiff On Deck Capital, Inc. moves, pursuant to Code of Civil Procedure section 2033.280 for an order deeming admitted and conclusively established the truth of all matters specified in Plaintiff's Request for Admissions, Set One, on the grounds that the party to whom the requests were directed, failed to serve timely verified respo...

Excerpt: ...nts between P&J and Jarhett Blonien from October 12, 2017, through October 10, 2018. P&J objected on the grounds of attorney‐client privilege and attorney‐work product doctrine. It is unclear how many documents are at issue as well as how the privileges apply considering the various parties involved and the potential privileges between them. A privilege log providing a description of the documents at issue will better permit a judicial evalua...

Excerpt: ...uest for monetary sanctions for bringing its motion is DENIED. Lopez did not oppose the motion, which means monetary sanctions are not authorized. (See Code Civ. Proc., § 2030.290, 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 2023.030, subdivision (a), states the Court may impose monetary sanc...

Excerpt: ...verified code‐compliant further responses, without objections other than those made based on the attorney‐client privilege and work product doctrine, and documents within 20 calendar days of service of notice of entry of order. (Korea Data Systems Co. v. Super. Ct. (1997) 51 Cal.App.4th 1513, 1516.) JNS and Grant shall provide a privilege log for any documents withheld under the attorney‐client privilege or attorney work product doctrine. (...

Excerpt: ...cts, serve judicial economy, and protect against double recovery by Plaintiff. Defendants request for judicial notice is GRANTED. The Court takes judicial notice of the subject matters of the request, but not for the truth of the matters asserted therein. 11 It appears to the Court that there are questions of fact that are not only at issue in both this action and the determination of the validity of the Sixth Amendment in the 1035 Action, but ar...

Excerpt: ...eventh cause of action for aiding and abetting on the ground defendants did not cause the damage Simpson complains of in her complaint, and eighth cause of action for quiet title on the ground defendants have quit claimed the implied easement and are instead operating by virtue of the 1910 easement. Simpson opposes. A. Standing/Real Party In Interest On July 23, 2021, the Court continued the matter after defendants' reply raised for the first tim...

Excerpt: ...rt's tentative ruling procedure. 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. Plaintiff Donald Veverka moves the Court for an order striking Defendant's Memorandum of Costs in its entirety on the grounds that an employer is not entitled to costs where a jury finds that the Plaintiff employee engaged in protect...

Excerpt: ...ting, and as such, there is no reason why DFS Flooring should be dragged into arbitration. The argument is not well‐taken considering that since the opposition was filed, Wright Contracting filed a cross‐complaint naming DFS Flooring as a cross‐defendant in the first cause of action for breach of contract and seventh cause of action for contribution. Although DFS Flooring agrees to arbitrate its claim against Odd Fellows, it objects to bein...

Excerpt: ...d the circumstances in which an independent contractor's employee (or third party) may recover in tort from the party hiring the contractor. Defendants are correct that generally a person who hires an independent contractor is not liable for the torts of the independent contractor. (See Torres v. Reardon (1992) 3 Cal.App.4th 831, 838.) “At common law, a person who hired an independent contractor generally was not liable to third parties for inj...