Excerpt: ...trued, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (See Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty should only be sustained when the complaint is so bad that the defendant cannot reasonably respond. (Ibid.) Here, the pleading is certain enough to allow defendants to understand the nature of the allegations, and the t...

Excerpt: ...rt, however, exercises its discretion to consider the motion as Alam filed a substantive opposition and there is no prejudice to him. Moreover, Farina filed a reply on June 9, with a hearing set for June 11. The reply is untimely as it must have been filed and served at least 5 court days before the hearing.2 (Ibid.) There also is no proof of service attached to the reply or any indication Alam was served with the reply. With these deficiencies, ...

Excerpt: ...he action is barred by the applicable statute of limitations. B. Legal Analysis 1. Demurrer A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc. § 425.10, subd. (a)(1).) A demurrer is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court must “construe the allegations of a complaint ...

Excerpt: ... pre‐ trial issues Shushereba (Case No. 19CV000345), Golick (Case No. 19CV000350), Loeber (Case No. 19CV000359), and Gonzales (Case No. 19CV000391). The Court stated: “There is no question that consolidation of these matters would promote judicial economy in light of the fact that all four cases involve the same tragic incident, with a significant overlap of evidence and witnesses.” The Court, however, deferred ruling on the motion to conso...

Excerpt: ...tion 945.4, and for leave to file a civil action against American Canyon Fire Protection District.3 The notice of motion does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9. Moving party/counsel is directed to contact the opposing party/ies forthwith and advise of Local Rule 2.9 and the Court's tentative ruling procedure. Notwithstanding the procedures set forth in Local Rule 2.9, the moving party/counsel ...

Excerpt: ...8. 4 A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc. §425.10, subd. (a)(1).) A demurrer is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may also consider as grounds for a demurrer any matter that is judicially noticeable under Evidence Code sections 451 or 452. (Code. Civ...

Excerpt: ...ice of notice waived. (See id. at subd. (d).) A. PROCEDURAL MATTERS Defendants Auberge Resorts LLC and Moana Corporation move, pursuant to Code of Civil Procedure section 1030, for an order requiring Plaintiff to post an undertaking in the amount of $50,000 on the grounds that Plaintiff resides outside of the state of California and there exists a reasonable possibility that Defendants will obtain a judgment in its favor and be entitled to recove...

Excerpt: ... on the grounds that the Subject Portions constitute irrelevant, false, or improper matter, or a demand for judgment requesting relief not supported by the allegations of the Complaint.4 More specifically, Defendants argue that the seven Subject Portions relate to Plaintiff's claim brought pursuant to California's Unfair Competition Law (UCL) but that the Subject Portions each, “go[] further than the UCL allows.” (Support Memo at 1:8‐9, 14�...

Excerpt: ...Human Resources Eligibility Review Committee set forth in paragraphs 53, 54, and 55 of the proposed First Amended Complaint (pFAC). Plaintiff moves, pursuant to Code of Civil procedure sections 576 and 473, for leave to file a proposed First Amended Complaint (pFAC) to add a cause of action for defamation against Defendant Pacific Gas and Electric Company (PG&E). The Court may, “at any time before or after commencement of trial, in the furthera...

Excerpt: ...ded to conceal this email from disclosure by copying an attorney and writing 11 “A/C priv” next to the subject line. She believes the email itself does not contain information protected by the attorney‐client privilege. Section 2031.285 provides a clawback procedure for handling claims that a document produced in discovery is subject to a “claim of privilege or of protection as attorney work product.” The provision instructs the receivi...

Excerpt: ...e 2.9, the moving party/counsel shall appear at the hearing, by Zoom, unless it is confirmed that no party requests oral argument. Defendant 3I Incorporated (3I) moves the Court, pursuant to Code of Civil Procedure sections 877 and 877.6, for an order finding that 3I's settlement with Plaintiffs Sandra Valva and James Valva was made in good faith and that all cross‐complaints for equitable indemnity and contribution asserted against 3I are barr...

Excerpt: ... or produce documents described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) Under such circumstances, the party noticing the deposition may seek an order compelling the deponent to appear for her deposition, provide testimony, and produce all documents requested in the notice. (Ibid.) Farina appeared for a deposition via Zoom on March 18, 2021. (Modica Reply Decl., ¶ 25.) However, applying the word “appeared” to what...

Excerpt: ... information identified in the subject interrogatories to the third‐party administrator upon request. The third‐party administrator shall not disclose any of said information to any party, including Plaintiff, except as specifically authorized pursuant to validly executed reply cards. Plaintiff moves for an order compelling Defendant Napaidence Opco, LLC dba Napa Post Acute to provide further responses to Plaintiff's Special Interrogatories, ...

Excerpt: ...14 Cal.App.4th 612, 616.) A demurrer for uncertainty should only be sustained when the complaint is so bad that the defendant cannot reasonably respond. (Ibid.) Here, the pleading is certain enough to allow defendants to understand the nature of the allegations, and the theory of liability to fashion an appropriate response. Defendants' demurrer to the second cause of action for negligent entrustment on the ground of failure to state sufficient f...

Excerpt: ...of mandate is GRANTED IN PART. Petitioner is entitled to a peremptory writ of mandate directing Respondent NVC to set aside the July 19, 2019 decision terminating Petitioner from the Criminal Justice Training Center Basic Police Academy (Program), and to reconsider the case in light of the Court's opinion as set forth herein. Petitioner is directed to prepare, and forward to Respondents no later than May 6, 2021 for approval as to form, an order ...

Excerpt: ...Court takes judicial notice of the Department of State Hospitals‐Napa Administrative Directive titled Sexual Harassment and numbered 139, attached as Exhibit 8 to the Request for Judicial Notice. (Evidence Code §452, subd. (c).) 8 The Court denies the Request for Judicial Notice (Request) as to Exhibits 1‐4, 6, 13, and 16 on the ground that none of the subjects are relevant to the Court's resolution of the issues presented. The Court takes j...

Excerpt: ...g that the defendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substanti...

Excerpt: ... 2021, and verifications were provided on March 9, 2021. As a result, plaintiff argues defendant's responses were untimely and tantamount to no responses at all, requiring objection free responses. Plaintiff is not entitled to responses without objections to all interrogatories. Plaintiff fails to mention that defendants served “hybrid” responses consisting of answers and objections. Where the response contains both an answer and objections, ...

Excerpt: ...ss‐ defendants' antiSLAPP motion should be granted. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Crossdefendants have the initial burden of showing the challenged causes of action arise from an act in furtherance to a person's right to petition or free speech. (Id.) If cross‐defendants satisfy their initial burden, the burden shifts to cross‐complainant Karim P. Allana to show a probability of success on the merits of the challenged cau...

Excerpt: ...levant. McGill contends the requests still are relevant as to Webb's affirmative defenses, but the form interrogatories and the motion itself are directed to Webb as a cross‐ complainant, not to the answer to the underlying operative complaint or to him as a defendant. (Weixel Decl., Ex. C.) The Court understands McGill's position that the cross‐complaint may have been filed for an improper purpose and she may need to prepare the case as it w...

Excerpt: ...“manner, conditions, scope and nature of the examination.” (Code Civ. Proc., § 2032.310, subd. (b); see Weil & Brown, The Rutter Group (2020), § 8:1560.) Moreover, the notice of motion should contain a description of the tests and procedures. (Weil & Brown, supra, § 8:1561 [“Ask the doctor whom you designate as examiner to write out the name and description of the tests and procedures he or she proposes to utilize; and include these in y...

Excerpt: ...s Person(s) Most Knowledgable [sic] and Custodian(s) of Records; Request for Documents at Deposition.” (Subject Depo Notice.) (See Declaration of Amy Morse at ¶ 3, Exh. A. (Morse Decl.)) Pursuant to the Subject Deposition Notice, the deposition was scheduled for January 27, 2021. (See Ibid.) The Subject Deposition Notice was accompanied by a cover letter in which Plaintiff stated, in part, “[i]f your office and your witness are not available...

Excerpt: ...n has no merit. The motion necessarily fails. Renteria's motion for summary adjudication of the fourth cause of action for breach of contract on the ground the obligation it allegedly breached as plaintiff Bellisimo A Family Vineyard, LLC rendered it moot is GRANTED. Bellisimo alleges in November 2018, it entered into an oral agreement whereby Renteria agreed to “replant” a vineyard block and to obtain any necessary permits to perform the wor...

Excerpt: ...rovided with accurate itemized wage statements as WSE issued wage statements that did not show the name of the legal entity that is the employer. (Id., ¶¶ 9, 27.) Instead, “We Ship Express, Inc.,” an entity which is not on record as an entity with the California Secretary of State, is shown on wage statements. (Id., ¶ 27.) 11 Labor Code section 226, subdivision (a), requires employers to give employees, as a detachable part of their payche...

Excerpt: ... City of Napa (City). (See id. at ¶ 14, et seq.) City demurs, pursuant to Code of Civil Procedure section 430.10, on the grounds that the Plaintiff fails to allege facts sufficient to establish a dangerous condition of public property, and that Defendant is immune from liability pursuant to Government Code sections 830.4, and 830.8. A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc. §425.10, subd. (a)(1).) A...

Excerpt: ...n is required to be furnished and an estimate of the anticipated claims rate; (3) why the time limit to object or opt‐out is reasonable; (4) why the submission of a claim form is necessary; (5) the cy pres recipient needs to be named rather than left generally to plaintiff's counsel's choice; (6) why does distribution to the cy pres recipient fill the purposes of the lawsuit or otherwise is appropriate; (7) declaration disclosing interests or i...

Excerpt: ... permits for the property, owed Bellisimo a duty (1) to supervise all pest control operations in Bellisimo's vineyard, (2) to ensure those pest control operations in Bellisimo's vineyard were performed in a careful and effective manner, and (3) to prevent those pest control operations in Bellisimo's vineyard from being performed in a faulty, careless, or negligent manner. Bellisimo raises in its notice of motion, as the source of the statutory du...

Excerpt: ... to file a response. The Court reviewed plaintiffs' supplemental memorandum of points and authorities, plaintiffs' supplemental White declaration, defendant's supplemental reply memorandum, and defendant's supplemental Hayashida declaration and now rules as follows: A. Evidentiary Objections 1. Zeigon Declaration Defendant's six evidentiary objections to Frank Zeigon's declaration are SUSTAINED. Zeigon's declaration is based on a “review of the...

Excerpt: ...ent of presenting a tort claim.1 (See Notice of Hearing and Petition (Notice) at 1:22‐25.) The Petition is brought on the grounds that Petitioner failed to timely file his tort claim, but that such failure was excusable. (See Id. at 2:13‐22.) The Court denies the Petition because there is no indication in the record that the claim was filed late. Analysis of the petition requires a basic overview of the statutory process that a person wishing...

Excerpt: ... Complainant was required to file any opposition to the present demurrer on or before January 12, 2021. (See Code Civ. Proc. §1005, subd. (b).) No such opposition appears. However, on January 15, 2021, Cross‐Complainant filed a Verified Amended Cross‐Complaint (VACC). “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike...

Excerpt: ...tions that a proper meet and confer never took place, and that ordering additional conferring could help resolve these motions, limit the discovery requests and/or the number of objections at issues, or facilitate settlement. The parties' attorneys, Daniel Geoulla and Bridget McKinstry, are ordered to meet and confer via video conference at a mutually agreeable time on or before January 29, 2021. They shall thoroughly discuss each of the discover...

Excerpt: ...compel” initial responses to judgment debtor interrogatories (set one) and judgment debtor requests for production of documents (set one) is GRANTED. The motion stems from defendants/judgment debtors John Tudal and Cerruti Cellars, Inc.'s apparent refusal to comply with the Court's (Hon. Wood) September 30, 2020 discovery order compelling them to serve verified code‐compliant initial responses without objections. Defendants argue the debtor d...

Excerpt: ...r an order directing Respondent to show cause why the Court should not issue such writ. Petitioner further seeks a declaration, pursuant to Government code section 6259 “signifying that Respondent has violated Petitioner's rights under” Government Code section 6250 et seq. (Notice of Motion at 1:26‐2:4.) This action arises from Petitioner's request for information, submitted to Respondent pursuant to the California Public Records Act (CPRA)...

Excerpt: ...itial responses, without objections, within 15 calendar days from the date of service of notice of entry of order. Defendants' request for monetary sanctions for bringing the motion is DENIED. Howell did not oppose the motion, which means monetary sanctions are not authorized. (See Code Civ. Proc., § 2031.300, subd. (c) [providing that monetary sanctions are authorized against any party, person, or attorney who “unsuccessfully . . . opposes a ...

Excerpt: ...e date of service of notice of entry of order. The County's request for monetary sanctions for bringing the motion is DENIED. White did not oppose the motion, which means monetary sanctions are not authorized. (See Code Civ. Proc., § 2031.300, subd. (c) [providing that monetary sanctions are authorized against any party, person, or attorney who “unsuccessfully . . . opposes a motion to compel . . . .”].) Code of Civil Procedure section 2023....

Excerpt: ...session. Plaintiff instead seeks a prescriptive easement in its first cause of action. Because defendants did not address the prescriptive easement claim in their opening papers,2 or the equitable easement claims (second and third causes of action), they have not shown there has 2 In their reply, defendants attempt to correct their oversight by raising new argument as to the prescriptive easement claim and attaching new evidence. The Court has no...

Excerpt: ...appear at the hearing, by Zoom, unless it is confirmed that no party requests oral argument. Defendant Delicato Vineyards moves the Court, pursuant to Code of Civil Procedure section 1281, et seq., for an order compelling arbitration of Plaintiff Sherri Tueros' Complaint and staying any further proceedings pending that arbitration on the grounds that a written arbitration agreement covers the allegations of the Complaint. A proceeding to compel a...

Excerpt: ...roperty. As plaintiffs succinctly frame it: “the fact that [Webb's] hillside is unstable and could fail at any time, the fact that it failed in the past, the fact that it has moved, has caused damage, and is obstructing the shoulder of Plaintiff's [sic] driveway access, and the fact that if it continues to move it will damage, obstruct and/or destroy the only access into the property, and the fact that Plaintiffs are now confronted with a secon...

Excerpt: ...0, subdivision (d). If Defendant files and serves supplemental papers, Plaintiff may then file and serve, no later than November 25, 2020, supplemental opposition papers. Defendant may then file and serve a supplemental reply no later than December 4, 2020. Defendant Oregon State University (OSU), appearing specially, moves the Court “for an order quashing the service of summons on OSU and dismissing the action, or alternatively, to dismiss thi...

Excerpt: ...ctively codifies the delayed discovery rule in connection with actions for fraud, providing that a cause of action for fraud ‘is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.'” (Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35.) Plaintiffs adequately allege delayed discovery stemming from the purported fraud. Plaintiffs purchased the new 2012 GMC Sierra 1500 on Ap...

Excerpt: ... justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proce...

Excerpt: ... (e) and (f), to the first, second, fourth and fifth causes of action asserted through the First Amended Cross‐Complaint (FACC) filed by Defendant and Cross‐Complainant JKT Associates, Inc. (JKT), on the grounds that each fails to state facts sufficient to constitute a cause of action and each is uncertain, ambiguous, and unintelligible. The Glavins' request for judicial notice is GRANTED. The Court takes judicial notice of the Complaint file...

Excerpt: ...ct of California. The notice of motion does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9. Moving party/counsel is directed to contact the opposing party/ies forthwith and advise of Local Rule 2.9 and the Court's tentative ruling procedure. Notwithstanding the procedures set forth in Local Rule 2.9, the moving party/counsel shall appear at the hearing, by Zoom, unless it is confirmed that no party request...

Excerpt: ...ormation would have been a motion to compel. (See Code Civ. Proc. §2025.480.) 6 Code of Civil Procedure section 340.5 contains a three‐year limitations period after death or oneyear period after discovery of the injury causing death in which to file suit. Defendant argues section 340.5 bars the action. The argument fails. Decedent passed away on September 22, 2017. Plaintiffs filed their complaint on September 21, 2018, followed by the first a...

Excerpt: ...5,000, which exceeds the limited civil jurisdictional amount. Although defendant 3030 Airport Road, LLC strongly disagrees and questions the veracity of the evidence, the County explains why it took so long to seek reclassification due to attorney oversight. The Court is cognizant of defendant's purported prejudice in not being able to prepare a fair market value defense, but any such prejudice can be remedied by re‐ opening discovery on this l...

Excerpt: ...ily fails. Defendant's motion for summary adjudication as to the first cause of action for disability discrimination – wrongful disciplinary action (Gov. Code, §§ 12926, 12940, et seq.) and third cause of action for disability discrimination – wrongful termination (Gov. Code, §§ 12926, 12940, et seq.) on the ground Klaus cannot establish a prima facie case of disability discrimination [Issues No. 1, 5] is DENIED. “To establish a prima f...

Excerpt: ...spirit of antitrust laws, which plaintiff Robert Jordan does not allege. Defendants correctly cite the law on the issue: “When a plaintiff who claims to have suffered injury from a direct competitor's ‘unfair' act or practice invokes section 17200, the word ‘unfair' in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable...

Excerpt: ...ct to any and all procedural and substantive defenses available to DSH‐Napa. The Court sets the matter for an OSC re: Status hearing on December 11, 2020, 8:30 a.m. in Dept. B. A. Procedural Background Petitioner seeks a “writ of mandate…directed to Respondent [Erik Shearer] in his official capacity with Napa Valley College, in order to redress an improper and unfair expulsion from the Psychiatric Technician Program.” (Petition at 1:19‐...

Excerpt: ...tober 29, 2020. Persons with authority to settle the matter are ordered to attend the Mandatory Settlement Conference. The parties may seek alternative dates by requesting oral argument pursuant to Local Rule 2.9. However, pursuant to Code of Civil Procedure section 36, subdivision f, the trial shall be set on or before January 21, 2021. Defendant and Cross‐ Complainants Rohit Patel and Mridula Patel (Defendants) move, pursuant to Code of Civil...

Excerpt: ...he requested relief. Plaintiff fails to set forth, in the Notice of Motion, the grounds on which she brings the present motion. (See Code Civ. Proc. §1010 [“the notice of a motion, other than for a new trial, must state…the grounds upon which it will be made”]; see also Rules of Court, Rule 3.1110 [“[a] notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order”];...