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: ...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: ...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: ...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: ...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: ...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: ...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: ...reement, between the parties was formed. On February 21, 2019, Plaintiff William Wren, and his attorney Carrie Gallagher, and Defendant Richard Berridge, in pro per, participated in a mediation aimed at settling the present action. At the end of the mediation session, the parties drafted, and then each party signed, a writing (“Feb 21 Offer”), the introduction of which provides, “William Wren, his attorney Carrie Gallagher, and Richard Berr...

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

Excerpt: ... 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: ...rial by jury. (Code Civ. Proc., § 631, subd. (g).) Defendant's motion is thin in terms of detailing inadvertence. (See Mackenzie Decl., ¶ 9, Ex. B [after plaintiff's counsel informed defendant's counsel that plaintiff was waiving her right to a jury trial, defendant's counsel responded in an October 29, 2019 email: “On further consideration, [defendant] will be seeking a jury trial.”].) But the Court believes it would be an abuse of discret...

Excerpt: ...curred on appeal.” (Mtn. at p. 2:13‐14.) The rule does not mention costs being awarded as attorney's fees. (See Cal. Rules of Court, rule 3.1702(c)(1) [“A notice of motion to claim attorney's fees on appeal‐other than the attorney's fees on appeal claimed under (b)‐under a statute or contract requiring the court to determine entitlement to the fees, the amount of the fees, or both, must be served and filed within the time for serving an...

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: ...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: ...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: ...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: ...quest for Judicial Notice is DENIED as to: the Motion to Impose Stay filed on January 8, 2019 in Bankruptcy Case Number 19‐10027, attached as Exhibit 10 to Defendants' Request; and, the Plaintiff's Ex Parte Application for Temporary Restraining Order and OSC re Preliminary Injunction; Declaration of Bruce Chadbourne; Declaration of Nicholas H. Van Parys, Esq., [Proposed] Order filed on July 23, 2019, attached as Exhibit 13 to the Request. Neith...

Excerpt: ...ted Berry's November 7, 2018 governmental tort claim (exhibit B) are the proper subject of judicial notice. Plus, defendant is asking the Court to take judicial notice of the facts contained within the exhibits, which the Court cannot do. As to exhibit B, there is no indication this was Berry's governmental tort claim. Defendant's demurrer to each cause of action on the ground of uncertainty is OVERRULED. An uncertainty demurrer is strictly const...

Excerpt: ...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: ... the matter. Plaintiff is instructed to contact the Civil Filing Division at the Napa County Superior Court to pay, subject to any applicable fee waiver, the: (1) transfer fees from the Napa County Superior Court; and (2) the filing fee for the Santa Cruz County Superior Court. The clerk is directed to transmit to the clerk of the court in Santa Cruz County a certified or exemplified copy of this order, together with all papers in the proceeding ...

Excerpt: ....) The insurance policy provided replacement cost estimates for the property. (Id., ¶ 40.) Defendant was obligated to calculate the replacement cost by analyzing the costs to rebuild the structure in accordance with the expenses, estimates, and assumptions set forth in 10 CCR §§ 2695.183(a)(1)‐(a)(5), 2695.183(b)‐(e), 2695.183(g)(2), and 2695.183(k). (Id., ¶¶ 40‐43.) Defendant failed to disclose the analysis, calculations, and informat...

Excerpt: ...' Request 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. N...

Excerpt: ... prevent the fight, they met that duty because they reasonably supervised students and acted reasonably to prevent the fight from occurring; (3) plaintiff's claim that the district negligently hired, supervised, and/or retained its employees is unsupported by evidence; (4) plaintiff's cause of action for intentional infliction of emotional distress against defendants fails because plaintiff has no evidence to support her claim that defendants exh...

Excerpt: ...rein. The Court takes judicial notice of the rejection of the Government Claim of Jonathan Chisham, attached as Exhibit B to the RJN. The Court takes judicial notice of the unverified complaint filed in the present matter, but not for the truth of the matters asserted therein. The notice of hearing on demurrer 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 P...

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: ...requiring the continuance. (Ibid.) Defendant moves, to continue the trial date in this matter, pursuant to Rules of Court Rule 3.1332, subd. (c)(6), which provides that good cause may be shown by a party's “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” Defendant asserts that, despite her diligent efforts, Plaintiff: failed to timely reply to discovery; failed to disclose ongo...

Excerpt: ...hich he filed on October 3, 2019. The Court set the current hearing to review the plan. The Court noted the expedited schedule was due to the fact the winter rains are approaching and plaintiffs' access to their property is in serious jeopardy, and the parties had an opportunity to hammer out a plan before a prior continuance. The Court deferred ruling on the bond issue until the costs of any plan were known. Webb offers a two‐step plan based o...

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: ...nder Code of Civil Procedure section 527.6. On September 15, 2017, the Court granted Hasty's motion to sever the equitable claims, including the sixth cause of action, from the legal claims. A court trial commenced on the third cause of action for declaratory relief and quiet title (Code of Civil Procedure sections 1060, 760.020, 761.020), fourth cause of action for abatement of private nuisance (Civil Code sections 3479, 3481, and 3501, and Code...

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: ...counsel of Local Rule 2.9 and the Court's tentative ruling procedure. If Capital One's counsel is unable to contact Cross‐Complainant's counsel prior to the hearing, Capital One's counsel shall be available at the hearing, in person or by telephone, in the event Cross Complainant's counsel appears without following the procedures set forth in Local Rule 2.9. Capital One demurrers to the Cross‐Complaint on the ground that the single cause of a...

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: ...ty to submit new evidence with a reply brief. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.) The decision whether to admit such evidence is within the trial court's discretion. (Id.) The Court finds that the evidence and legal argument sections of Petitioner's reply brief subject to the present motion are new, and improperly submitted. For this reason, the Court orders the following stricken from the record: A) Section II of the Reply...