Excerpt: ... causes of action is also sustained as to Plaintiff Khan. Defendants' Request for Judicial Notice is GRANTED IN PART. A. Introduction Defendants Fay Servicing, LLC (Fay), and Wilmington Trust, National Association (Wilmington), (collectively Fay Defendants) demur, pursuant to Code of Civil Procedure sections 430.10, subdivision (e), 430.30, subdivision (a), and 430.50, subdivision (a), to the TAC1 . This action involves claims for violations of t...

Excerpt: ...orter fees is unnecessary. According to Throop, court reporter fees are permitted as established by statute. (See Code Civ. Proc., § 1033.5, subd. (a)(11).) The rate of $55 per day under Government Code section 69948 should apply. The Court need not reach this argument because Caymus presents evidence the parties agreed to “split 50‐50” the costs for a court reporter and thereby agreed that the rate charged was acceptable. (Miller Decl., �...

Excerpt: ... ruling system as required by Local Rule 2.9. Petitioner/counsel is directed to contact the Respondent 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 Petitioner/counsel shall appear at the hearing, in person or by CourtCall, unless it is confirmed that no party requests oral argument. Petitioner BNNV LLC petitions the Court, pursuant to Civil Code ...

Excerpt: ...and the right to sue letter that were attached as exhibits to the second amended complaint. Berry's request for judicial notice is GRANTED IN PART AND DENIED IN PART. The request is granted as to his governmental tort claims (exhibits A‐B). The request is denied as to the Commission on Teacher Credentialing letter (exhibit C), the printout from a webpage (exhibit D), and an email (exhibit E). These items are not the proper subject of judicial n...

Excerpt: ...ween April, 2017, and March, 2018. (See Complaint at Attachment 1.) Many, though not all, of these allegations supported a Request for Domestic Violence Restraining Order made by Plaintiff in the family law case captioned Napa Superior Court case number 18FL000288. (See Request for Domestic Violence Restraining Order, filed March 23, 2018 in Napa Superior Court case number 18FL000288 (RDVRO).1 ) The Court issued a Restraining Order After Hearing ...

Excerpt: ...xpert witness declaration. Specifically, Individual Defendants seek to expand the scope of opinion of their previously disclosed expert Steven Walker from information described in Defense Counsel's declaration as “customs, practice and standards relating to recruiting directors, officers and employees between competitors in the California title and escrow industry,” to include: (1) the reasonableness of plaintiff's efforts to mitigate its all...

Excerpt: ... 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 party is then subjected to a burden of production to make a prima‐facie showing. (Ibid.) Through her Complaint, Plaintiff asserts causes of action for medical professional ...

Excerpt: ...UDICE IN PART. The motion is granted as to the interrogatories and the document requests. The motion is denied without prejudice as to the request for admissions. Respondent Liberty Mutual Insurance shall serve verified code‐compliant further responses, without objections, within 10 calendar days after petitioner's deposition on January 20, 2020 (regardless of whether it occurs or is rescheduled). Respondent served initial responses stating dis...

Excerpt: ...g, in person or by CourtCall, unless it is confirmed that no party requests oral argument. Plaintiff Pacific Gas and Electric Company (PG&E) moves for an order for prejudgment possession of certain property in eminent domain under Code of Civil Procedure section 1255.410. PG&E seeks to acquire a permanent easement of 1.40 acres for the installation and maintenance of the liquid natural gas (LNG) injunction site across the real property designated...

Excerpt: ...ject Property).1 Defendant Javier Cuevas is one of the co‐owners of the Subject Property. At some point during the ride, Plaintiff unknowingly passed onto neighboring property where he rode into a single strand of barbed wire that had been strung across the trail he was on. Plaintiff suffered severe injuries as a result. The following facts are also undisputed. As of the date of the accident, Cuevas had never met Plaintiff, never spoken to Plai...

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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ..., "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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...g and prosecuting the action. Plaintiff presents evidence that it has incurred $28,182 in attorneys' fees. The Court finds that such amount is reasonable, in light of the nature of the case, and the skills and experience of Plaintiff's attorneys. The notice of motion does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9. Plaintiff's counsel is directed to contact Defendant's counsel forthwith and advise Defe...

Excerpt: ... 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. Defendant County of Napa demurs to the pleading on the ground it does not comply with the California tort claims requirement. This is not a statutory ground for a demurrer under Code of Civil Procedure section 430.10. The Court, however, has construed the demurrer as being brought un...

Excerpt: ...If Defendants' counsel is unable to contact Plaintiff's counsel prior to the hearing, Defendants' 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. Background Defendants Kay Pacey and Kay Pacey Insurance Services, Inc. move for summary judgment pursuant to Code of Civil Procedure § 437, subdivision (c). Defendants are insura...

Excerpt: ...Demurrer of Defendant Queen of the Valley Medical Center (QVMC) is OVERRULED. QVMC shall file its answer within 10 calendar days of service of notice of entry of order. (Rules of Court, Rule 3.1320, subd. (g).) 1 Mathfallu has complied with the July 9, 2019 Order by paying the monetary sanctions, even though it was paid by a third‐party company Mathfallu controls. The Court is unaware of any authority that this is improper for purposes of compl...

Excerpt: ...thin 30 days of notice of entry of this order. (Code Civ. Proc. § 438, subd. (h)(2).) The timely filed notice of motion does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9.3 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 prio...

Excerpt: ...ntiff'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 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. Defendants Kay Pacey and Kay Pacey Insurance Services, Inc.'s motion for terminating sanctions is DEN...

Excerpt: ...ounsel shall be available at the hearing, in person or by telephone, in the event plaintiffs' counsel appears without following the procedures set forth in Local Rule 2.9. Defendant's demurrer to the first cause of action for violation of Propositions 13, 62, and 218 – California Constitution, Articles 13A, 13B, and 13C on the ground of failure to state sufficient facts is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs seek a refund of all fees defe...

Excerpt: ...ed‐for component of a specific high‐priced menu item.”) When those allegations were made, there was no law clarifying whether section 25980 banned the provision of foie gras as a bargained‐for component of a specific high‐priced menu item. And since the complaint alleges that Chef Frank was outspoken about the law and predicted it would drive sales underground, and his practices were similar to what a different chef described as a way �...

Excerpt: ...e petition was filed. This petition, however, also seeks an injunction barring future actions/decisions. On that basis, the Court believes the later evidence is relevant and properly included and the motion to limit the scope is, therefore, DENIED. That being said, the Court does not believe a granting of the motion would have had any impact on its decision on the underlying petition. [2] PETITION FOR WRIT OF MANDAMUS Tentative Ruling: Petitioner...

Excerpt: ...on 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 Plaintiff's counsel forthwith and advise plaintiff's counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Defendant'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 Plaint...

Excerpt: ...ision (a)(2), which provides for an injunction “[w]hen it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.” (Ex Parte Application, filed July 24, 2019 (Application) at 4:4.) However, the Memorandum of Points and Authorities section of the Application argues that an injunction is appropriate pursuant to Cali...

Excerpt: ...as moot. Cross‐Defendant J. Stanley Teixeira is directed to submit to this court, within seven (7) days of service of the minute order, a proposed judgment dismissing the third‐party cross‐complaint of Oscar Luna. Explanation: The third‐party cross‐complaint filed by Cross‐Complainant Oscar Luna (“Luna”) raises causes of action: (1) abuse of process, (2) intentional infliction of emotional distress, (3) negligent infliction of emo...

Excerpt: ...issions are deemed admitted by defendants. (Code Civ. Proc., § 2033.280, subd. (b).) Plaintiff's request for monetary sanctions is DENIED. The request is not codecompliant. Plaintiff did not cite in the notice of motion a specific 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 r...

Excerpt: ...horities, the Sills are seeking further responses and production responsive to request for production of document numbers 17, 23, and 29‐30. The Court believes the appropriate provision for the motion may be Code of Civil Procedure section 2025.480, but it is not clear as the Sills failed to file the Notices of Deposition and Requests for Production of Documents as an exhibit. In fact, the Sills submitted no evidence whatsoever to support their...

Excerpt: ...e for the San Francisco County Superior Court. The Clerk is directed to transmit to the clerk of the Superior Court for San Francisco County a certified or exemplified copy of this order, together with all papers in the proceeding on file. The Defendants are directed to send notice to the parties. The case is set for a review hearing on September 18, 2019 at 8:30 a.m. in Dept. A of the Napa County Superior Court. The hearing is to confirm receipt...

Excerpt: ...e third, fourth, and fifth causes of action in the first amended verified cross‐complaint and make a request for judicial notice. A. Third Cause of Action The Belchers' demurrer to the third cause of action for quiet title/easement by necessity on the ground of failure to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND. Defendants/cross‐complainants Michael F. Nichelini and Kelly J. Nichelini, Robert Charles Lee and Terri Lynn, Nic...

Excerpt: ... and that as a result, the Court is without authority to issue sanctions pursuant to that section. In reply, Plaintiff contends that her meet and confer letter providing 23 days' notice of her intention to bring a motion for sanctions under Civil Procedure Code section 128.7, satisfied the requirements of section 128.5. Not so. The safe‐harbor provision at issue reads: If the alleged action or tactic is the making or opposing of a written motio...

Excerpt: ...the appeal of the U.S. District Court for the Central District of California's order [restricting the Defendant Attorney General of California…from enforcing California Health and Safety Code § 25982 against Plaintiffs' USDA‐approved poultry products containing foie gras] in Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris (C.D. Cal. Jan. 7, 2015) 79 F.Supp.3d 1136. On September 15, 2017, the United States Court of Appeals for the...

Excerpt: ...y as to WFM's ‘corporate policy' on retention and preservation of video because there was no such uniform policy at the time of the incident.” (Blaxter Decl. at 2:8‐11.) Plaintiff counters that “Defendant will have to produce those of its officers, directors, managing agents, employees, or agents who set policies to formally state on the record that there was no policy, and Plaintiff will have the opportunity to inquire further also on th...

Excerpt: ... upon any party misusing the discovery process, including terminating sanctions consisting of an order striking the party's pleading. (Code Civ. Proc. § 2023.030, subd. (c).) If a party fails to obey an order compelling further response to interrogatories, “the court may make those orders that are just, including the imposition of…a terminating sanction….” (Code Civ. Proc. § 2023.030, subd. (d).) In lieu of, or in addition to, that sanc...

Excerpt: ...loyee's job performance or opportunity for advancement in his or her career.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.) In making this determination, the terms and conditions of employment “must be interpreted liberally and with a reasonable appreciation of the realities of the workplace.” (Ibid.) The gist of Plaintiff's allegations in this case is that her assignment requests were denied in favor of a newly hired teache...

Excerpt: ... as a result of exposure to defendants' allegedly toxic products during Mr. Valva's career. Defendant Sherwin Williams Company (SWC) demurs to Plaintiffs' Complaint on the ground that it fails to state facts sufficient to sustain the fourth cause of action for fraudulent concealment. Specifically, SWC asserts that, “the Complaint contains no factual allegations of any fiduciary relationship, transaction, or even communication or contact between...

Excerpt: ...ction or proceeding.” (Code Civ. Proc. § 1032, subd. (b).) In order to recover costs, the prevailing party is required to file and serve a Memorandum of Costs. (Cal. Rules of Court, rule 3.1700(a).) To be recoverable, costs must be reasonable in amount and reasonably necessary to the conduct of litigation. (Code Civ. Proc. § 1033.5, subd. (c)(1)‐(3).) If the items listed in the Memorandum of Costs appear proper on their face, then the verif...

Excerpt: ...dant/cross‐complainant Bruce Tucker Construction Inc. (“BTC”) shall serve verified codecompliant further responses, without objections, within 20 calendar days of service of notice of entry of order. The motion is denied as to interrogatory numbers 304.1, 314.7, 321.2, 321.5, 321.9‐321.10, 323.1‐323.3, and 324.1. BTC objects to interrogatory number 304.1 on the ground of relevance because it deals with insurance policy numbers, effectiv...

Excerpt: ...uding terminating sanctions consisting of an order striking the party's pleading. (Code Civ. Proc. § 2023.030, subd. (c).) If a party fails to obey an order compelling further response to interrogatories, “the court may make those orders that are just, including the imposition of…a terminating sanction….” (Code Civ. Proc. § 2023.030, subd. (d).) In lieu of, or in addition to, that sanction, the court may impose a monetary sanction….�...

Excerpt: ...ight to recover costs in any action or proceeding.” (Code Civ. Proc. § 1032, subd. (b).)1 On February 26, 2019, the Court granted Defendant's motion for summary judgment as to all causes of action asserted by Plaintiff. Defendant is therefore the prevailing party in the action as to all counts and is entitled to costs “except as otherwise expressly provided by statute.” (Code Civ. Proc. § 1032, subd. (b).) Analysis of the present motion i...

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...r law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213‐ 14.) In reviewing...

Excerpt: ...ntegrated enterprise issues (before the discrimination, retaliation, and fraud liability, and damages issues), liability and compensatory damages, and punitive damages pursuant to Code of Civil Procedure sections 598 and 1048, subdivision (b), and request to preclude the admission of evidence of defendants' profits, wealth, or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds defen...

Excerpt: ...entered against Defendant Berridge Wine Company, LLC on March 12, 2019, is hereby set aside. Clerk to give notice. The Court may, upon noticed motion of either party, set aside a void judgment. (Code Civ. Proc. §473, subs. (d)). The Court may also set aside a void default judgement on its own motion. (Security Pac. Nat'l Bank v. Lyon (1980) 105 CA3d Supp. 8, 13.) When a judgment is void, the Court must set it aside. (County of Ventura v. Tillett...

Excerpt: ...d costs and expenses in the amount of $38,039.59, for a total award of $266,234.59, following settlement of claims brought under the Song‐Beverly Consumer Warranty Act, Civil Code sections 1790, et seq. Plaintiffs and Defendant are in accord that Plaintiffs are entitled to costs and expenses including attorneys' fees, based on: a) actual time expended; which, b) the Court determines to have been reasonably incurred in connection with the action...

Excerpt: ...s that he would be testifying “regarding the surveyed location of the access road and easement, as well as possibly the topographical survey of the drainage area at issue in the complaint.” While Defendants certainly made clear throughout this litigation that they dispute Plaintiffs' claim that the easement at issue in this case is interrupted by a triangular encroachment, both sides have consistently referred to the 1978 survey as the operat...

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...

Excerpt: ...th of the exam. Specifically, plaintiff argues Dr. Sarah Hall's time estimate is not consistent with the completion time the product manufacturers proscribe, an effective examination does not require a full administration of all of Dr. Hall's proscribed exams, and a two‐day sixteen‐hour exam is overly burdensome and a misuse of the discovery process. The Court takes each contention in turn. First, the product manufactures' proscribed time doe...

Excerpt: ... officer, from attending the depositions. (Code Civ. Proc., § 2025.420, subd. (b)(12); see Willoughby v. Super. Ct. (1985) 172 Cal.App.3d 890, 892 [parties have the right to attend depositions].) Even if the Court was authorized to issue such a protective order, defendants have not demonstrated good cause to overcome plaintiff's right to have Mark Holderbein, Chief Operating Officer, present at the depositions. Although another officer could att...

Excerpt: ... Republic General Insurance Corporation's Memorandum of Points and Authorities in Support of Motion for Leave to File Complaint in Intervention.” Second, the Court (Hon. Stone) granted XL Catlin's request to file a complaint‐inintervention on August 21, 2018, which was brought against defendants GS Trucking, G.S. Nahal Trucking, LLC, Swaranjit Kaur, Bay Area Trans, U.S.A. Trucking, Inc., Hakirat Singh Sran, and Kavr Rovin. XL Catlin dismissed...

Excerpt: ...erving Jurisdiction on the Issue of Attorneys' Fees, signed November 27, 2018, and entered November 28, 2018, is hereby vacated. Defendant's request for $7,425.00 in attorneys' fees for the cost of preparing its motion for an award of attorneys' fees (below), made in the Opposition Memorandum, is DENIED. The request is not made through a noticed motion. Moreover, Defendant fails to assert which sanction power(s) it would have the Court exercise. ...

Excerpt: ...al request to continue the trial date out far enough to file a summary judgment motion. The Court also allowed defendant to file a reply to the opposition. The reopening of discovery appears appropriate due to the production of documents that occurred on February 1, 2019, and the possible failure to exhaust the discovery process via the production of internal email communications. Defense counsel represents that it now believes this matter can be...

Excerpt: ...nquestionably a form of personal injury. (See Schwab v. Rondel Homes (1991) 53 Cal.3d 428, 432 [plaintiffs' emotional distress claim covered by Code of Civil Procedure section 425.10].) Swank's claim for emotional distress is not “incidental” to the causes of action in her complaint as one of the reasons she filed her pleading is due to the alleged emotional distress she suffered from the death of her dog. (See id. [an emotional distress clai...

Excerpt: ...dd an Indispensable Party is GRANTED. Plaintiff's Motion for Leave to File Sixth Amended Complaint to Add an Indispensable Party is DENIED. 1. PLAINTIFF'S REQUESTS FOR JUDICIAL NOTICE Plaintiff's Request for Judicial Notice is GRANTED in part. The Court takes judicial notice of: (a) Verified Complaint for Trespass, Foreceable Detainer, prescriptive Easement and Nuisance Abatement filed in this matter January 29, 2014, but not for the truth of the...

Excerpt: ...solve the dispute. Through the Complaint in this matter Plaintiffs allege that Defendant failed to make certain disclosures to Plaintiffs relating to Defendants sale to Plaintiffs of residential real property. The Complaint asserts six causes of action relating to the same set of general allegations. The nature and scope of the allegations set forth in the Complaint are typical for this type of case. Through the present motion, Plaintiffs assert ...

Excerpt: ...efendant's Request for Judicial Notice is GRANTED in part. The Court agrees that California Evidence Code section 452, subsections (c) and (h) permit the taking of judicial notice of the records and files of the California Agricultural Labor Relations Board (ALRB). (Medix Ambulance Service, Inc. v. Super. Ct. (2002) 97 Cal.App.4th 109, 114, Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1749‐ 1750.) The Court takes judicial notice of the followin...

Excerpt: ...e Plaintiff's Request for Judicial Notice is GRANTED. The Court takes judicial notice of the Complaint filed by Plaintiff Francis Wang in this matter, but not for the truth of the matters alleged therein. C. Background This case involves a dispute between neighboring property owners over rights to a strip of land along the boundary of their respective properties. Plaintiff alleges to have lived on property commonly known as 460 Stonecrest Drive f...

Excerpt: ...endant has engaged in certain business transactions with Third‐Party Grant Reynolds. Reynolds acknowledges that he holds a lien on certain of Defendant's property. In an effort to explore these relationships, on or about November 14, 2018, Plaintiff applied to the Superior Court in and for the County of San Diego for an order of examination of Mr. Reynolds. Mr. Reynolds objected. In an apparent effort to focus its resources, Plaintiff withdrew ...

Excerpt: ...ant/cross‐complainant Angelena Checchi's recent discovery responses and document production. If Checchi believes there is a lack of duty or that the allegations are deficient, she may utilize the appropriate code provision to challenge the amended pleading. The liberality of permitting amendment of a pleading outweighs Checchi's asserted prejudice of delay in proceeding to trial and incurring additional fees. RD Winery shall file its proposed f...

Excerpt: ...pp. Decl., ¶ 4.) The request for a privilege log is granted as there is no indication defendant produced a supplemental privilege log. (Sakaguchi Decl., ¶ 11.) Defendant shall provide a supplemental privilege log if it believes that certain files are privileged. (Code Civ. Proc., § 2031.240, subd. (b); Hernandez v. Super. Ct. (2003) 112 Cal.App.4th 285, 291‐92.) Defendant shall serve its privilege log within 10 calendar days of service of no...

Excerpt: ...dicial Notice is GRANTED in its entirety. 3. Plaintiffs' Procedural Objections to Defendants' Motion for Summary Adjudication Plaintiffs' procedural objections are OVERRULED. Plaintiffs argue that the Court should deny Defendants' Motion for Summary Adjudication because of asserted defects in Defendants' Notice of Motion and Separate Statement of Undisputed Facts. Specifically, Plaintiffs assert that certain language is not repeated in the two do...

Excerpt: ...pies. The Court's February 1, 2019 Minute Order stated, “Plaintiff has not complied with Local Rule 3.3. Plaintiff is directed to provide courtesy copies of e‐filed documents not later than February 8, 2019.” Plaintiff failed to provide courtesy copies. Plaintiff's counsel is cautioned that any further violation of Local Rule 3.3, or failure to comply with the Court's Orders in this matter will result in sanctions. A. Factual Background Pla...

Excerpt: ...nded opposition brief) and prior to the hearing on the Court's motion re: Dismissal, any issues relating to whether the class‐action may be properly maintained in light of the present ruling relating to the named‐plaintiff. A. Defendant's Request for Judicial Notice The Request for Judicial Notice by Defendant Queen of the Valley Medical Center (QVMC) is GRANTED as to (a) DLSE Counsel H. Thomas Cadell's June 3, 1991 opinion letter, (b) Wage O...

Excerpt: ...hough plaintiffs again failed to satisfy California Rule of Court, rule 3.1324, by stating in the supporting declaration where the new allegations are proposed to be added by page, paragraph, and line number, the Court overlooks the deficiency because exhibit B to the Jones declaration is highlighted to allow the Court to determine where the additional allegations were added. Plaintiffs shall file their proposed first amended complaint by Februar...

Excerpt: ...Terminating Sanctions (Exhibit E), and Notice of Entry of Judgment on Verdict (Exhibit F) in Case No. 26‐ 56249; and (2) case information from the Court's website (Exhibit G), complaint (Exhibit H), and May 7, 2014 Order (Exhibit J) in Case No. 26‐62431; and May 23, 2018 Minute Order (Exhibit M) in this case. For the pleadings, the Court does not take judicial notice of the truth of the matters asserted therein. The request is denied as to ex...

Excerpt: ...ment Quieting Title entered September 16, 2005 in Napa County Superior Court Case No. 26‐29788. (2) DEFENDANTS' REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION TENTATIVE RULING: Defendants' Request for Judicial Notice is GRANTED. The Court takes judicial notice of the Fifth Amended Verified Complaint for Prescriptive Easement and Nuisance of Plaintiff Kathleen McBride filed March 27, 201...

Excerpt: ...e claims on which the attachment is based are claims on which an attachment may issue; (2) plaintiff has established the probable validity of the claims on which the attachment is based; (3) the attachment is sought for no purpose other than the recovery on the claims on which the attachment is based.; and (4) the amount to be secured by the attachment is greater than zero. ...

Excerpt: ...pursuant to Civil Code section 3295. Preliminarily, the court voices its disappointment that counsel for both parties have filed these motions to be heard on the first day of trial, despite trial having been continued previously and despite knowing about the current trial date for the last four months. All of the issues raised in these motions have been patent to counsel for quite some time. Waiting this long to bring these issues to the court's ...

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: ...ct Plaintiff's counsel forthwith and advise Plaintiff's counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Defendant'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. Defendant's Motion to Compel Further Responses to For...

Excerpt: ...ilure to serve timely responses to requests for admissions necessitated a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c).) Brock failed to serve timely responses to the requests. However, Code of Civil Procedure section 2023.040 requires the moving party to support its motion with a memorandum of points and authorities. TRC, in its memorandum of points and authorities, supported its request for monetary sanctions w...