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

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

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

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

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

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

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

Excerpt: ...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: ...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: ...le to contact Plaintiff's counsel prior to the hearing, 2 The Court notes that Plaintiff raised the overarching issue of whether the Feb 21 Offer might be an option agreement only at the original hearing on the motion. Despite his having failed to raise the issue through his original moving papers, the Court permitted him to file a supplemental brief on the issue. Having now failed, in effect a second time to present any argument relating to the ...

Excerpt: ... this motion. Plaintiff's objection to the Court taking judicial notice of the probation order is deemed moot. Plaintiff's request for judicial notice of the summons in Case No. 18FL000022 (exhibit A), the notice regarding payment of support (exhibit B) in that case, the notice of limited scope representation (exhibit C) in that case, and the fact defendant “is not a stranger to obtaining legal representation” is DENIED. These materials and t...

Excerpt: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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...