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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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...