Excerpt: ...the first cause of action for breach of contract/specific performance, second cause of action for declaratory relief, and third cause of action for breach of the covenant of good faith and fair dealing in the second amended complaint on the grounds the pleading is time barred, the 2007 Asset Purchase Agreement (“2007 APA”) expired by its own terms in 2008, plaintiff BVK Gaming, Inc.'s (“BVK”) total breach of the 2007 APA absolves any furt...

Excerpt: ...usly and inexpensively." (Acuna v. Gunderson Chevrolet, Inc. (1993) 19 Cal.App.4th 1467 (Acuna), 1472.) It appears from the holding in Acuna that the Court is without authority to consolidate the small claims matter, Case No. 19SC000272, with the Superior Court cases. (Id.) However, the Court shares moving Defendant's concerns regarding even the possibility that issues that are at the heart of the subject Superior Court cases may be conclusively ...

Excerpt: ...86 Cal.App.4th 399, 412; (2) why the time limit to object or opt‐out is reasonable; and (3) an explanation as to why English‐ only notice is sufficient. Plaintiff may file the additional material before or at the hearing. If the information is not submitted, the matter will be continued to January 15, 2020, at 8:30 a.m. in Dept. B to allow time for the additional information to be submitted. If the material is submitted and is sufficient, the...

Excerpt: ...sought against one of the defendants is the payment of a stated amount of money alleged to be wrongfully withheld, such defendant may, upon affidavit that he is a mere stakeholder with no interest in the amount or any portion thereof and that conflicting demands have been made upon him for the amount by parties to the action, upon notice to such parties, apply to the court for an order discharging him from liability and dismissing him from the ac...

Excerpt: ...PS Store mailbox number that defendants apparently are using at 39506 Daisey Mountain Road, Anthem, Arizona 95086. The People request the Court order that CRC and Soscol, as limited liability companies, not be able to appear in this action without an attorney. Although the request is not properly before the Court as part of a noticed motion, the Court will restate the law on the issue to encourage the corporate defendants to promptly find new cou...

Excerpt: ...er or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. (Code Civ. Proc. § 472, subd. (a).) Similarly, a plaintiff may amend the complaint after the date for filing an opposition to the demurrer upon stipulation by the parties. (Ibid.) Defendant Specialized Loan Servicing LLC noticed a hearing on October 18, 2019, for its pending demurrer to ...

Excerpt: ...el shall appear at the hearing, in person or by CourtCall, in the event plaintiffs' counsel appears without following the procedures set forth in Local Rule 2.9. Defendants Lil' Wave Financial, Inc. dba Superior Loan Servicing (“Loan Servicing”), Mark Capalongan, Sandra Capalongan, Jimmy Hui, Jing Feng, and Hou Sang Wong's demurrer to the first cause of action for violation of Civil Code section 2924d and second cause of action for violation ...

Excerpt: ...s (September 12, 19, 24) and its absence was both unexcused and fatal to reaching a global settlement. (Id., ¶¶ 3‐5.) As a result, Venuta claims First American violated California Rules of Court, rules 2.30(b) and 3.1380(b), requiring all persons with full authority to settle the case to personally attend the conference unless excused by the court for good cause. “The court may order a person, after written notice and an opportunity to be h...

Excerpt: ...on OSC re: Dismissal, January 15, 2020, 8:30 a.m. in Dept. B. The notice of motion does not provide notice of the Court's tentative ruling system as required by Local Rule 2.9. Respondent's counsel is directed to contact Petitioner's counsel forthwith and advise Petitioner's counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Respondent's counsel is unable to contact Petitioner's counsel prior to the hearing, Respondent's cou...

Excerpt: ...tually produced; (3) remove non‐privileged communications from the privilege log and produce same; (4) conduct the required reasonable search and diligent inquiry for responsive documents; and, (5) produce electronic materials in original form.1 (Notice of Motion at 1:12‐21.) Plaintiffs served the subject requests on June 24, 2019. On July 22, 2019, Defendants filed a demurrer to several of Plaintiffs' causes of action. On July 29, 2019, Defe...

Excerpt: ...reasonably necessary to the prosecution of the litigation. (See Levy v. Toyota Motor Sales, USA, Inc. (1992) 4 Cal.App.4th 807, 816.) Defendant concedes these issues by its failure to oppose the request. Plaintiffs also request an award of $263,850 in attorneys' fees based on a lodestar calculation of $175,900, and 1.5x enhancement. The Court finds, based on the evidence presented, that the hourly rates Plaintiff used in the lodestar calculation ...

Excerpt: ...n Van Leeuwen and Frans Simon Van Leeuwen and defendant signed and accepted a section 998 offer. Defendant offered to pay $100,001 in exchange for plaintiffs, in their individual and representative capacity, dismissing and releasing their claims against defendant. Importantly, the offer and lump sum payment applied not only to plaintiffs, but to all “others similarly situated.” On this basis, and assuming without deciding that section 998 app...

Excerpt: ...rd.” (Carehouse Convalescent Hosp. v. Super. Ct. (2006) 143 Cal.App.4th 1558, 1562.) However, the goodcause requirement for deposing an attorney applies when the deponent is “opposing counsel” in the litigation. (Spectra‐Physics, Inc. v. Super. Ct. (1988) 198 Cal.App.3d 1487, 1494‐95.) Blonien is not opposing counsel. It is apparent, as BVK demonstrates, that Blonien wears different hats beyond providing legal advice to the defendants. ...

Excerpt: ...ver defined portions of Cross‐Defendants' property. CrossDefendants here assert that each of these causes of action fails, as a matter of law, because Cross‐Complainants “are seeking relief through their Cross‐Complaint that would give them a prescriptive easement with exclusive use of the [subject areas of Cross‐Defendants' property].” (Support Memo. at 4:25‐26.) The party moving for summary judgment bears the burden of persuasion ...

Excerpt: ...otion as being made against the amended answer filed on August 6, 2019, not the original answer. Because the notice of motion states judgment on the pleadings is sought as to the entire amended answer, the motion may be denied if any defense is alleged. (See Fire Ins. Exch. v. Super. Ct. (2004) 116 Cal.App.4th 446, 452.) Defendant Gene Webb denied each allegation in the complaint. A general denial is effective to controvert all material allegatio...

Excerpt: ...supplemental responses provide approximations, but not precise responses. The Court agrees that, because this information is within the exclusive control of Plaintiffs, and is relevant to issues raised in the litigation, Defendants are entitled to precise answers. Plaintiffs are directed to provide, within 10 days of notice of entry of the present order, additional responses, which include specific amounts to the best of each Plaintiff's ability ...

Excerpt: ... Plaintiffs to separately respond to, discovery requests would be inefficient and unduly burdensome. The Court notes Defendants' apparent willingness to jointly propound Form Interrogatories and Discovery requests relating to damages. The Court appreciates the parties' meet and confer efforts. The Court would like to hear from the parties, through additional briefing, on whether there are other subject areas (e.g. Plaintiff's employment history a...

Excerpt: ...able 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 State Farm General Insurance Company's demurrer to the fourth cause of action for concealment and fifth cause of action for negligent misrepresentation on the ground of failure to state sufficient facts is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs Emily Cocks and Andrew Skolnick have not ...

Excerpt: ...Rules of Court, rule 3.1700(a).) To be recoverable, costs must be reasonable in amount and reasonably necessary to the conduct of litigation. (§ 1033.5, subd. (c)(1)‐(3).) If the items listed in the memorandum of costs appear proper on their face, then the verified statement is prima facie evidence of their propriety. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267; Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 2...

Excerpt: ... of Local Rule 2.9 and the Court's tentative ruling procedure. If ExxonMobile's counsel is unable to, or elects not to, contact any such counsel prior to the hearing, ExxonMobile's counsel shall be available at the hearing, in person or by telephone, in the event other counsel appears without following the procedures set forth in Local Rule 2.9. On May 13, 2019, ExxonMobile propounded written discovery on Plaintiffs. ExxonMobile asserts that Plai...

Excerpt: ... Local Rule 2.9 and the Court's tentative ruling procedure. If Chase Products, Co's counsel is unable to contact any counsel prior to the hearing, Chase Products, Co's counsel shall be available at the hearing, in person or by telephone, in the event other counsel appears without following the procedures set forth in Local Rule 2.9. [2] DEFENDANT PACKAGING SERVICE CO.'S DEMURRER TENTATIVE RULING: Defendant Packaging Service Co.'s demurrer is OVER...

Excerpt: ... demurrer are stated in the notice. (Code Civ. Proc., § 1010.) Defendants' demurrer to the first amended complaint on the ground of uncertainty [Code Civ. Proc., § 430.10, subd. (f)] is OVERRULED. Defendants' demurrer to the first cause of action for breach of the implied contract of continued employment and second cause of action for breach of the implied covenant of good faith and fair dealing on the ground of uncertainty is OVERRULED. The Co...

Excerpt: ...dants did not defend their objections in their opposition, all objections are not substantiated, and thus are overruled. (Fairmont Ins. Co. v. Super. Ct. (2000) 22 Cal.4th 245, 254.) The Court fails to see how the attorney‐client privilege or the work product doctrine apply as the interrogatory only seeks facts based on defendants' personal knowledge. A further response from each defendant is warranted because defendants did not provide the inf...

Excerpt: ...solidation 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. Because plaintiffs Theodore Shushereba and Ceclia Rose Shushereba allege defendant Pathway Home is liable on account of failures on the part of their employees who happen to be two of the decedents in the related matters, the Court would consider a future motion...

Excerpt: ...ers, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852, citing Munoz v. Davis (1983) 141 Cal. App. 3d 420, 425.) “Generally, it is based on a duty owed to the underlying plaintiff[.]” (Id.) Defendant/cross‐complainant Bruce Tucker Construction Inc. (“BTC”) alleges Ryan and Delta Consulting and Engineering of St. Helena (“Delta”) entered into a contract to provide design services related to the construction of ...

Excerpt: ...el shall be available at the hearing, in person or by telephone, in the event defendants' counsel appears without following the procedures set forth in Local Rule 2.9. Plaintiffs Joanne Strickland and Clean! The Series, LLC's motion for a preliminary injunction is GRANTED. Plaintiffs seeks an order restraining defendants Lil' Wave Financial, Inc. dba Superior Loan Servicing (“Loan Servicing”), Mark Capalongan, Sandra Capalongan, Jimmy Hui, Ji...

Excerpt: ...Defendant insurance agent/broker (Samrick) and Defendant insurer (State Farm) for damages arising out of the destruction of their home by fire. The Second Amended Complaint represents Plaintiffs' third attempt to allege a cause of action for breach of fiduciary duty. 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 pl...

Excerpt: ...r Illumina, Marcus Burch, declares his legal team conducted preliminary searches of certain systems, which did not result in any hits. (Bruch Decl., ¶ 3.) He adds that his legal team also made internal inquiries with applicable personnel in the finance and sales departments, and the personnel were entirely unfamiliar with RR Health. (Id.) Thus, it does not appear Illumina possess documents responsive to the subpoena. Moreover, based on the paper...

Excerpt: ... counsel is unable to contact the opposing party prior to the hearing, defendant's counsel shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 2.9. Defendant JPMorgan Chase Bank N.A.'s motion to compel the depositions of plaintiffs Gerald L. Nunn and Judith L. Nunn under Code of Civil Procedure section 2025.410, subdivision (a), is DENIED. The c...

Excerpt: ...d cause of action for medical battery on the ground of failure to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiff Tiffany Smeikal alleges Dr. Gordon performed a medical procedure beyond her conditional consent. (Second Amended Compl., ¶ 18.) “There are three elements to a claim for medical 2 Moreover, the Court finds no evidence that service under that section was effectuated. That section authorizes service on a person o...

Excerpt: ...0.10 [setting forth the permissible grounds to object to a pleading by demurrer].) No other grounds for the demurrer are stated in the notice. (Id., § 1010.) The County cites General of Am. Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 472, for the proposition that “[t]he broad discretionary power of the trial court to deny declaratory relief may be invoked by general demurrer.” This authority, however, is premised on setting forth a ground f...

Excerpt: ...hrough their opposition, they claim that both demurrer and motion to strike are rendered moot by their filing (the SACC). (Opposition Brief at 2:7‐25.) The SACC was improperly filed, and therefore the matters raised by the present motions remain at issue. Cross‐Complainants claim they were entitled to file the SACC, without leave, pursuant to Code of Civil Procedure section 472. That section provides that, “a party may amend its pleading on...

Excerpt: ...le 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 Rodolfo Daquioag's demurrer to the first cause of action for negligence and second cause of action for premises liability on the ground of uncertainty is OVERRULED. An uncertainty demurrer is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can b...

Excerpt: ...rations filed on the party's behalf. [Citations.]” (See Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Here, the Court's order regarding the discovery responses are not subject to different interpretations as the responses admit the allegations supporting the complaint. Plaintiff's motion for judgment on the pleadings under Code of Civil Procedure section 438, subdivision (c)(1)(A), is GRANTED. (See Evans v. Californi...

Excerpt: ....5 applies to “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” (USS‐Posco Industries v. Case (2016) 244 Cal.App.4th 197, 215‐16, quoting Lab. Code, § 218.5, subd. (a).) “In such actions, ‘the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action...

Excerpt: ...of the same transaction, occurrence, or series of transactions or occurrences . . . or asserts a claim, right, or interest in the property or controversy which is the subject of the cause of action brought against [cross‐ defendant].” (Code Civ. Proc. §428.10, subs. (b).) After the first trial date in the matter is set, a party must obtain leave of court to file a cross‐complaint against a third party. (Id. at § 428.50.) “Leave may be g...

Excerpt: ...) 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.) “In ruling on the motion, the trial court views the evidence and inferences therefrom in the light most favorable to t...

Excerpt: ...ia. Four parties are involved in both: Langrebe Lath & Plastering, Inc. (LLP), a subcontractor; Davis/Reed Construction, Inc. (Davis/Reed), general contractor; L&W Supply Corporation (L&W), a materials supplier; and, Liberty Mutual Insurance Company (Liberty). Davis/Reed and Liberty bring the current motion to consolidate the two actions. LLP filed a Notice of Non‐Opposition. Only L&W opposes. “When actions involving a common question of law ...

Excerpt: ...ation and the arbitration requiring resolution of the arbitration first due to the contract between Altamura and plaintiff. Altamura contends he terminated his contractual relationship with plaintiff because plaintiff mismanaged his vineyard. (Id., ¶¶ 3‐5.) If Altamura is correct, then he had good cause to part ways with plaintiff, and plaintiff's claims against defendants for interfering with the contractual relationship will be less likely ...

Excerpt: ... Hill property. The Bakers frame the question as not “‘if' the Vineyard will be redeveloped, it is ‘when' it will be redeveloped.” But there is no guarantee, as the Bakers proffer, that they will be allocated the vineyard land. The land the Bakers seek to develop is the subject of competing claims in this partition action with the Land Trust and defendants/cross‐complainants/cross‐defendants Bruno R. Solari, Giulia S. Nelken, Anthony ...

Excerpt: ...iff/cross‐defendant Nancy Ryan shall serve verified code‐compliant further responses, without objections except those based on the attorney‐client privilege and work product doctrine, and documents within 20 calendar days of service of notice of entry of order. Ryan served initial responses to the discovery requests on February 6, 2019. A party may move to compel further responses to written interrogatories if it deems that the party's resp...

Excerpt: ...broker (Samrick) and Defendant insurer (State Farm) for damages arising out of the destruction of their home by fire. The Complaint sets out causes of action for professional negligence, negligent misrepresentation, and breach of fiduciary duty. 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.) “A demurrer test...

Excerpt: ...uth of the matters contained therein; and City of St. Helena Resolution No. 2009‐24 attached as Exhibit E to Petitioner's Request for Judicial Notice, but not for the truth of the matters contained therein. The Petition for writ of mandate is DENIED. The matter is set for OSC re: Dismissal on Thursday, May 23, 2019, 8:30 a.m., in Dept. B. A. Factual Background On November 27, 2018, the City Council of the City of St. Helena (City) adopted an or...

Excerpt: ...led for May 30, and Trial set for June 3, are vacated. This action arises out of a dispute between Plaintiffs as borrowers/mortgagors relating to residential real property, and Defendants as the purported assignees of the related promissory note and deed of trust. Plaintiffs assert four causes of action1, based on claims that the transfers and assignments of the promissory note and deed of trust – in the course of the alleged securitization of ...

Excerpt: ...tion for medical battery, third cause of action for intentional misrepresentation, and fourth cause of action for violation of Business and Professions Code section 17200 on the ground of uncertainty is OVERRULED. An uncertainty demurrer is strictly construed, even where a pleading 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,...

Excerpt: ... medical examinations. Defendant took plaintiff's deposition in October, 2018, and apparently made extensive inquiry regarding plaintiff's injuries. Plaintiff testified during deposition that he anticipated having a second shoulder surgery. Plaintiff disclosed his expert witnesses in this matter on November 28, 2018. On December 10, 2018, plaintiff moved ex‐parte for an order continuing the trial date based on the instability of plaintiff's rig...

Excerpt: ... untimely. Ryan is correct that Code of Civil Procedure section 428.50, subdivision (a), sets out the time period for the filing of a permissive cross‐complaint: “A party shall file a cross‐complaint against any of the parties who filed the complaint or cross‐complaint against him or her before or at the same time as the answer to the complaint or cross‐complaint.” Ryan, however, fails to address subdivision (c) of the statute, which ...

Excerpt: ...ew trial date for late September or early October 2019 and any other applicable dates. The Court plans on granting the motion as prayed, with all pre‐trial deadlines to be re‐set in accord with the new trial date. Pierce seeks to close all non‐expert discovery based on purported prior agreements between the parties, and to force defendants to withdraw any pending discovery requests, including deposition subpoenas directed to Pierce's employ...

Excerpt: ...hall be available at the hearing, in person or by telephone, in the event defendants' counsel appears without following the procedures set forth in Local Rule 2.9. A. Request for Judicial Notice and Evidentiary Objections Plaintiff 3030 Airport Road, LLC's request for judicial notice is GRANTED as to Airport Sponsored Assurances of the Federal Aviation Administration (exhibit A), Napa County Lease Agreement No. 6621 (exhibit B), FAA registration ...

Excerpt: ...y sanctions for bringing the motion is DENIED. Although Alejandre filed a response, he 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].) Weisberg's reference in the memorandum of points and au...