Excerpt: ... had no “notice, actual or constructive” - vague and ambiguous, lack of foundation, improper conclusion), objection no. 5 (Th e f ir s t four sentences subject to objection starting with “In 2019, I was approached by David Pettis … in Grass Valley, California,” and ending with “In exchange, any funds … toward purchase of these properties.” - hearsay), objection no. 7 (hearsay, lack of foundation). All other objections are overrule...

Excerpt: ...be d by the Judicial Council and shall inform the judgment debtor that the judgment debtor has 60 days within which to make a motion to vacate or modify the renewal. (b) Until proof of service is filed pursuant to subdivision (a), no writ may be issued, nor may any enforcement proceedings be commenced to enforce the judgment, except to the extent that the judgment would be enforceable had it not been renewed. “[T]here is no specified time perio...

Excerpt: ...urden of demonstrating that the exercise of jurisdiction would be unreasonable.” Snowney v. Harrah's Entertainment, Inc. (2005) 35 Cal.4th 1054, 1062 (quotations omitted). “Generally speaking, a civil court gains jurisdiction over a person through one of four methods. There is the old -fashioned method —residence or presence within the state's territorial boundaries. There is minimum contacts —activities conducted or effects ge ne...

Excerpt: ..., as it stands, unconnected with extraneous matters, states a cause of action.'” Hahn v. M ir d a (2007) 147 Cal.App.4th 740, 747. Ac c o r d McKenney v. Purepac Pharmaceutical Co. (2008) 162 Cal.App.4th 72, 79. As to the first cause of action, the complaint is sufficiently clear to allow the defendant to answer. “[A] plaintiff need not plead facts with specificity where the facts are within the knowledge and control of the defendant and ...

Excerpt: ...rge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” Ib id . “[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse em...

Excerpt: ...f 's complaint lacks any information about dates or frequency of incidents and accusations that would allow the court to evaluate the totality of the circumstance s. Further, defend ant's accusations of a wide -ranging and successful criminal enterprise masterminded by plaintiff would appear to be inconsistent w it h a g e d is c r im in a t io n . Fif t h Ca u s e o f Ac t io n : ove rrule d. The litany of crimes defendant accuses p la in t if f...

Excerpt: ...at issue in t h e c iv il a c t io n ; (2 ) t h e p la in t if f 's s ig n if ic a n t in t e r e s t in p r o c e e d in g e xp e d it io u s ly with the civil action, and the potential prejudice the plaintiff could suffer with respect to t he loss of evidence or fading of recollections by the passage of time; (3) the moderate burden imposed by the civil action on the defendant who will need, with the assistance of counsel, to make thoughtful de...

Excerpt: ...r their quasi -marital interest in property may not be commenced or maintained under this title [10.5].” Resolution of this issue require s the court to consider whether it will recognize the decree of divorce of the parties by the Dubai Court of First Instance in the United Arab Emirates (“UAE”). The United States is not a party to the Hague Convention on the Recognition of Divorces and Legal Separations, done at the Hague, June 1, 1970 (9...

Excerpt: ...nt, courts must apply a three -step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. ( Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182 -83; McGa rry v. Sa x (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oaksha...

Excerpt: ...mortgagor or trustor and who is potentially eligible for any fe de ral, st at e , or proprie t ary fore closure pre ve nt ion alt e rnat ive program offered by, or through, his o r he r mort gage se rvice r.” (Civil Code § 2920.5(c)(1).) As Plaintiff has alleged only that his parents were the borrowers, and the HBOR does not extend protections to the Personal Representative of the Estate of a deceased borrower, he does not have standi ng. Thus...

Excerpt: ...article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute. The statute is designed to protect defendants “from the annoyance of having unmeritorious claims against them unresolved for unreasonable periods of t im e . ” ( Muno z v. Cit y o f Tracy (2015) 238 Cal.App.4th 354, 359. ) “If o n ap p e al an o rd e r grant ing a ne w t rial is affirme d o r a jud gme nt is re ve rse d and ...

Excerpt: ...t s h e ll, p la in t if f alleges that Defendants have improperly overridden diagnosis and treatment protocols recommended by Plaintiff's medical professionals, specifically his successful chiropractic treatment, and changed them to lesser treatments that are not proper or adequat e to treat Plaintiff's condition. ( Se e Amended Complaint including ¶ ¶ 1 -10.) First, each of the claims fail on their face to state sufficient facts to constitute...

Excerpt: ...] section 1161, subdivision 2 (section 1161(2).) ( Kwok v. Be rgre n (1982) 130 Cal.App.3d 596, 599– 600, 181 Cal.Rptr. 795.) [A] three -day notice must include “the amount which is due.” (§ 1161(2).) A notice that seeks rent in excess of the amount due is invalid and will not support an unlawful detainer action. (Er n s t Enterprises, Inc. v. Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 359, 188 Cal.Rptr. 641 (Ernst ).) In additio...

Excerpt: ...e no new facts or law to support such contentions. Sp e c if ic a lly, t h e m o v in g papers argue that the Court lacked jurisdiction to make the Order Appointing Receiver because the first Notice of Appeal was properly signed. However, this same argument was made in the 10 - 16- 23 brief at 1:27- 28 and rejected by Judge Durant. Movants also argue in the present moving papers that the judgment did not appoint a receiver, but only contemplated ...

Excerpt: ...hat (1 ) he was a member of a protected class, (2) he was performing c o m p e t e n t ly in h is p o s it io n , (3) he suffered an adverse employment action, and (4) he suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination. Guz v. Be ch t e l Na t ion a l, Inc. (2000) 24 Cal.4th 317, 355. “To qualify as a member of the protected class under FEHA [based on disability], [the plaintiff] must de...

Excerpt: ...has read and considered those briefs . Subdivision (f)(2) of section 437c provides that “a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly d iscovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. ” Here, the court has closely exa...

Excerpt: ...Evidence Plaintiff's Objection to paragraph 7 of the Declaration of Brian Shaw filed on February 9, 2023, is overruled. The court need not address the other objections as the challenged paragraphs are immaterial to the issues raised in this motion. Standard of Review The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and ...

Excerpt: ...the judgment of a court of a foreign nation when the foreign court had proper jurisdiction and enforcement does not prejudice the rights of United States citizens or violate domestic public p o lic y .” In re Stephanie M. (1994) 7 Cal.4th 295, 314, c it in g Hilt on v. Gu yot (1 8 9 5 ) 159 U.S. 113, 202– 203; Vic t r ix S.S. Co ., S.A. v. Sa le n Dr y Ca r go A.B. (2d Cir.1987) 825 F.2d 709, 713. “Ext e n s io n o r d e n ia l o f c o m it...

Excerpt: ... by January 18, 2024. Further, service by mail was required to be completed by January 13, 2024. Here, the motion appears to have been served also on January 19, 2024. Additionally, on the merits, Plaintiff contends that the prior motion for summary judgment was filed pursuant to Rule 56, not C.C.P. section 437c. However, Rule 56 is a Federal Rule of Civil Procedure, and not a California rule of civil procedure. Thus, the argument is without meri...

Excerpt: ...the first cause of action is denied. Their motion for summary adjudication of the second cause of action is granted. Summary Judgment Standard Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 167–168 summarizes the applicable standard: A defendant is entitled to a summary judgment on the basis that the “action has no merit” (Code Civ. Proc., § 437c, subd. (a)) only where the court is able to determine from the evidence presented that “th...

Excerpt: ...mmary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. " ' Le Francois v. Goel (2005) 35 cal.4th 1094, 1098 ("In this case, the individual defendants filed a new moton for summary judgment that did not satisfy...

Excerpt: ... (compelling initial interrogatory responses), 2031.300 (compelling initial document requests). A motion to compel initial discovery responses need not show good cause, meeting and conferring, or timely filing, and need not be accompanied by a separate statement. Sinaiko Healthcare Consulting. Inc. v. Pac. Healthcare Consultants (2007) 148 Cal. App. 4th 390, 404. Here, the opposition states that there was no meaningful meet and confer effort. How...

Excerpt: ...contract." Ibid. As for the third cause of action, " ' [i]f the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.' " Lewy v. Only Cremations for Pets. Inc. (2020) 57 Cal.App.5th 203, 215, Careau & Co. v. Secu...

Excerpt: ...ls to provide any facts to support such claim. There is no attachment to the form complaint providing the required details. As to the third cause of action for "other," the claim fails to state a cause of action because the complaint fails to provide any facts to support such claim. There is no attachment to the form complaint providing the required details. Also, to describe the "other" cause of action, Plaintiff states "stated in computer %.!" ...

Excerpt: ...illing and work paid for but not performed. As to the third cause of ac
Ÿon for professional negligence, the demurrer is sustained with leave to amend. The cross-complaint fails to allege the speciÞc professional services retained by cross-complainant demonstra
Ÿng that such posi
Ÿon required specialized knowledge or training that was breached. As to the fourth cause of ac
Ÿon for inten
Ÿonal inßic
Ÿon of emo
Ÿonal distress, the demurrer...

Excerpt: ...d does not seek, in the alternative, a continuance such that he may have more time to prepare a reply. Moreover, the Court's ruling is consistent with its prior ruling in relation to an identical request filed by Defendant Zipfel as to the same cause of action at issue in Wilson's motion. Accordingly, the Court exercises its discretion and accepts the late-filed Opposition. A motion for judgment on the pleadings has the same function as a general...

Excerpt: ...ight to br-ng an independent cause of action on the underlying promissory note (aka the "One Action Rule"). (Code Civil Proc. S 726.) Code of Civil Procedure Section 726 provides "There can be but one form of action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real property, which action must be in accordance with the provisions of this chapter." This is known as the single achon rule, which mandates one ...

Excerpt: ..."Defendant was properly served with a copy of the summons and complaint." As the motion to set aside this judgment was denied, the finding has been made by prior court judgment that the eviction was proper. As such, this allegations of this cause of action are res judicata and the demurrer is sustained without leave to amend. As to the fifth cause of action for conversion of personal property, the demurrer is sustained without leave to amend. The...

Excerpt: ...which determination is sought." Plaintiff has previously been given leave to amend and has failed to state facts that the County has any interest in the real property at issue. Secondly, as to all causes of action, Plaintiff has failed to allege that he has filed a Govt Tort Claim before filing suit as required by Gov. Code SS 905, 945.4. Claims presentation are jurisdictional and mandatory. (Fidelity & Deposit Co. v. Claude Fisher, Co. (1958) 16...

Excerpt: ... Ins. co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 129 Cal.Rptr.3d 601, 258 P.3d 737 (SeaBrjght).) This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job. Commonly referred to as the Privette doctrine, the presumption originally stemmed from the followng rationales: First, hirers usually have no right to control an independent contractor's work. (Privette, at p. 693, 2...

Excerpt: ...ration of further litigation, and the settlement amount—these factors can be useful in evaluating the fairness of a PAGA settlement." Moniz v. Adecco USA (2021) 72 cal.App.5th 56, 77. Here, the court finds that the settlement is fair and reasonable. The terms of the settlement provide a proportional distribution to each aggrieved employee based on the number of at-issue pay periods worked plus an additional $5.00 each. This distribution is fair...

Excerpt: ... Ins. co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 129 Cal.Rptr.3d 601, 258 P.3d 737 (SeaBrjght).) This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job. Commonly referred to as the Privette doctrine, the presumption originally stemmed from the followng rationales: First, hirers usually have no right to control an independent contractor's work. (Privette, at p. 693, 2...

Excerpt: ...iolation of the statute. In orderto establish a claim under the FDCPA, the facts as alleged must show that Defendant was a "debt collector" as defined by the Act, that Defendants' challenged conduct constituted "debt collection," and that the debt collection actons violated a provision of the Act. (See, e.g., Heintz v. Jenkins (1995) 514 U.S. 291, 294. Here, Plaintiff has alleged all three elements in the Complaint. Defendants have cited no autho...

Excerpt: ...gment Standard A defendant may move for summary judgment where "it is contended that the action has no merit " Code of Civil Procedure S 437c, subd. (a). "A defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." at subd. (p)(2). "O...

Excerpt: ...verning general demurrers apply. "[T]he court passing upon the question of the demurrer may look to affidavits filed on behalf of plaintiff, and the plaintiff's answers to interrogatories, as well as to the plaintiff's responses to requests for admissions. E. webb corp. v. structural Materials co. (1981) 123 cal.App.3d 593, 604. In the present case, the admissions order demonstrates, among other things, the following: (1) Defendant complied with ...

Excerpt: ... trial court has broad discretion to determine whether the settlement is fair. It should consider relevant factors, such as the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the the experience and views of counsel, the presence of a governmental par...

Excerpt: ...communicate with is client. The Court notes, despite the granting of counsel's motion to withdraw, no proof of service has been filed evidencing service of that order on Plaintiff Thus, Plaintiff's counsel remains of record. The Court highlights this point due to the fact the original pending motions were served on Plaintiff's attorney of record. Moreover, this hearing date was not put forth on the Order relieving counsel. However, since no proof...

Excerpt: ...g up of affairs including sale of the real property with improvements thereon located at 12731 Loma Rica Driver, Grass Valley, California. ultimately, the single cause of action related to 12731 Loma Rica was remanded to this Court where it was adjudicated at court trial over several days. Thus, the costs being requested by Plaintiffs related to a long pending action spanning approximately nine (9) years. The fact is this cause of achon was part ...

Excerpt: ...earlier date or otherwise address it until now. 2. Plaintiff's Motion to Compel Further Responses This matter comes on calendar in relation to Plaintiff, Richard Kyle Green's, timely filed Motion to Compel Defendant, Sheila Marie Zipfel, to Provide Further Responses to Form Interrogatories, Special Interrogatories, Requests for Production of Documents and Requests for Admissions (SET ONE) (hereinafter, "Mohon"). The Court has reviewed all pleadin...

Excerpt: ...ivil Procedure section 473(b) on grounds of "mistake, inadvertence, surprise, or excusable neglect." " 'In order to qualify for [discretionary] relief under section 473, the moving party must act diligently in seeking relief and must submit affdavits or testimony demonstrating a reasonable cause for the default.' " Huh v. Wang (2(m) 158 Cal.App.4th 1406, 1419. "In other words, the court's 'discretion may be exercised only after the party seeking ...

Excerpt: ...ir costs on appeal. Appellate costs include attorney's fees when they are permitted by statute or law. California Rules of court, rule code Civ. Proc. SS 1034. Plaintiffs argue they are entitled to appellate attorney fees based on Code of Civil Procedure section 1036, which provides, in relevant part: In any inverse condemnation proceeding, the court rendering judgment for the plaintiff by awarding compensation, , shall determine and award or all...

Excerpt: ...the ICF cause of action for wrongful foreclosure. The H08R only provides regulatory protections for foreclosures related to a party's principal residence. See Civil Code S 2924.15. Here, Plaintiff admits that both lots were "vacant" at the time of the Notces of Default. Exhibit C to the First Amended Complaint, at 55. Moreover, Plaintiff has admitted that he resides in Ohio. See RJN Exhibits 3, 6, 8, 13-14, and 23- 25. Plaintiff has also failed t...

Excerpt: ...murrer was sustained, but that is all." Community Water Coalition v. Santa Cruz County Local Agency Formation Com (2011) 200 Cal.App.4th 1317, 1329, citing People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785—786. " 'The plaintiff may not amend the complaint to add a new cause of action without having obtained #rmission to do so, unless the new cause of action is within the scope of the order granting leave to amend.' " Ibid...

Excerpt: ... Cross-Complainant has failed to allege a speciÞc misrepresenta
Ÿon or omission that was made and the damages that stemmed therefrom. Allega
Ÿons that cross-defendant Malone sought to be a 1099 worker rather than a salaried employee do not demonstrate how Cross-Complainant was defrauded. As to the third cause of ac
Ÿon for professional negligence, the Cross-Complaint fails to allege the speciÞc professional services retained by Cross-Complai...

Excerpt: ...7 case, filed a request for judicial notice regarding Mr. Deal and orally requested the Court to strike all pleadings/ filings by Deal in both cases because Deal is allegedly a vexatious litigant who failed to obtain this Court's order of approval pursuant to Code of Civil Procedure section 391.7, subdivision (b), before making those filings. The Court issued an order to show cause why that relief should not be granted and directed the parties to...

Excerpt: ...roneously sued as RCI Property Management) ("RCI"), the Court does not believe that all the proposed amendments are futile. " 'Generally, motions for leave to amend are liberally granted. ' " Foroudi u Aerospace Corporation (2020) 57 Cal.App.5th 992, "However, 'leave to amend should not be granted where, in all probability, amendment would be futile. ' " ld. at IWI. " ' "Leave to amend should be denied only where the facts are not in dispute, and...

Excerpt: ...ivision (a), the trial court in its discretion may allow a third party to intervene in litigation pending between other parties if " '(1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the interventon outweigh any opposition by the parties presently in the action. [Citation.]' [Citation.] The p...

Excerpt: ...ch can be challenged by evidence. Objections to Evidence Defendant's Objections to the four declarations filed in support of Plaintiff's opposition are sustained to the extent such statements are submitted to contradict and/or oppose Plaintiff's admissions. Here, Plaintiff made 94 admissions in discovery. An admission is deemed true for purposes of the subject litigation, and Plaintiff cannot seek to introduce evidence to assert facts which are c...

Excerpt: ... v. County of Monterey (2008) 167 cal.App.4th 1379: In determining the amount of reasonable attorney fees to be awarded under a statutory attorney fees provision, the trial court begins by calculating the "lodestar" amount. The "lodestar" is "the number of hours reasonably expended multiplied by the reasonable hourly rate." To determine the reasonable hourly rate, the court looks to the "hourly rate prevailing in the community for similar work." ...

Excerpt: ...ds outlasts its jurisdiction to grant relief pursuant statute, its inherent power is narrower than its ability to grant relief under 473(b), and it is exercised only in exceptional circumstances. (See, e.g., Rappleyea v. Campbell (1994) 8 Cal.4th 975, 98; Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1246. In considering a request for relief from default on equitable grounds, courts apply a three-part test: "first, the defaulted par...

Excerpt: ...hat he could take advantage of me"- foundation, speculation. All other objections are overruled. The Court sustains the following objections (in whole or part) by Plaintiff to the Fitzhugh Declaration: (1) Objection 1 — foundation, conclusion, expert opinion; (2) Objection 4 — foundation, speculation; (3) Objection 7 in part, to wit: "Ms. Rith must have been able to...work." — speculation; (3) Objection 16 hearsay ; (4) Objection 17 in part...

Excerpt: ...eady parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the ...

Excerpt: ...ing them Verdi was incompetent to provide services and thereby convinced customers to cease using Verdi's services and to hire Hamilton's newly-formed competing business. Verdi also alleges Hamilton poached Verdi's employees. A demurrer and motion to strike portions of the complaint was heard back in January, 2023. Defendant/cross-complainant Hamilton filed a Cross-complaint on 2/15/2023. It names Verdi Energy and Gregory Cecchi as Cross-Defendan...

Excerpt: ...for personal injury claims expired on 4/8/2023. CCP section 12a prov-des in pertinent part: "If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is nota holiday. For purposes of this section, "holiday" means all day on Saturday [and) all days that by terms of Section 12b are required to be c...

Excerpt: ...ng the appropriate penalty, and we must uphold the court's determination absent an abuse of discretion. [Citation.] We defer to the court's credibility decisions and draw all reasonable inferences in support of the court's ruling. "Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. [Citation.) A trial court must be cautious when imposing a terminating san...

Excerpt: ...ive condition existed aside from the lack of a "Certificate of Occupancy," and have also failed to set forth any specific damages. Defendant RCl's unopposed Motion to Strike is granted without leave to amend. Plaintiffs have failed to show that any acts committed by RCI were willful, reckless, or done in conscious disregard for the safety and rights of others. The burden is on the complainant to show the court that a pleading can be amended succe...

Excerpt: ...notice of hearsay allegations as being true," even where they exist in a court's record or file. (See Day v. Sharpe (1975) 50 Cal.App.3d 904, 914- 915, emphasis original Objections to Evidence Defendant Fernstrom-Lee's Objections to Evidence filed on June 7, 2023, are sustained as to: 1-9 (foundaton, personal knowledge); 23-34 (authentication). The remaining objections are overruled. Standard of Review A defendant (or cross-defendant) may move fo...

Excerpt: ...07) 148 Cal.App.4th 97, 113.) "Taking judicial notce of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning" and "[t]he hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose proper interpretation are disputable." (ld. at 365, quoting Indemnity, supra, 148.Cal. App.4th at 113- 114....

Excerpt: ...the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute. (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 354, quoting Freemont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) "Taking judicial notce of a document is not the same as ac...

Excerpt: ...rty's project and to allow project activities unaffected by the air quality issue with the EIR found by the Court of Appeal to move forward while the City revises the EIR at issue. Petitioner Community Environmental Advocates oppose the same. Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, delineates the applicable standard for the request made: CEQA "allows a trial court to leave project approvals in place. CEQA do...

Excerpt: ...o. (1996) 48 Cal.App.4th 1794, 1802.) Counsel should include additional information regarding the specific documents reviewed and the extent of discovery conducted prior to agreeing to settle the case. (2) Plaintiff has not submitted a declaration from the proposed class representative evidencing that she has agreed to act as the same and understands her responsibilities. (See Soderstedt u CB/Z Southern California, LLC (2011) 197 cal.App.4th 133,...

Excerpt: ...kin presiding. A judgment was thereafter entered in favor of Plaintiffs in the amount of $88,304.53 against Defendant Forest River, Inc. ("Forest River"). An additional $12,962.00 was awarded to Plaintiffs against both Forest River and Timothy DeMartini d.b.a. DeMartini RV Sales ("DeMartini"). Plaintiffs were determined to be the prevailing party and the amount of attorneys' fees, costs, and expenses to be awarded were deferred until such time as...

Excerpt: ...any information or input by class members. Counsel shall address how the notice of final judgment will be given to class members. (See Rules of Court 3.771(b).) Counsel is also directed to provide the Court with proposed dates fora final status hearing regarding Defendant's compliance with the settlement agreement. Plaintiff will be required to timely submit its report of compliance before the final status hearing. Counsel are directed to prepare...

Excerpt: ...iction of emotional distress occurring in connection with Plaintiff's prior employment with BMI. Plaintiff moves to strike BMI's verified answer averring that its corporate status has been suspended/forfeited since on or about January 4, 2021, as a result of its failure to comply with Franchise Tax Board ("FTB") requirements (failure to file tax returns as required). Plaintiff contends that, as a forfeited corporation, BMI is disallowed from defe...

Excerpt: ...s. The Court defers on the imposition of any monetary sanctons required under Code of Civil Procedure section 2023.020 until the hearing on any such subsequent motion. Discussion Under the Discovery Act, discovery should ordinarily be self-executing. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1434 ["It is a central precept to the Civil Discovery Act of 1986 that civil discovery be essentially self-executing" l.) And because the Legis...

Excerpt: ...ed. The moton is accordingly granted as prayed. Plaintiffs are ordered to provide responses, without objections, to the form interrogatories, SROGs, and RFPs within ten (10) days of this Court's order. Plaintiffs' failure to respond as to each of the above-described discovery requests constitutes "misuse of the discovery process" within the meaning of Code of Civil Procedure section 2023.010(d) ("[f]ailing to respond or to submit to an authorized...

Excerpt: ...discovery requests were timely propounded, the time for response has elapsed, and no answers, documents, or other code-compliant responses have been received. (See McDonald Declaration, "1 3-7, Exhibit 4 thereto.) Their motion to compel is accordingly granted. Plaintiff is ordered to provide responses, without objections, to the form interrogatories, SROGs, and RFPs within ten (10) days of being served by Garda with this Court's order. As to the ...

Excerpt: ...ore specifically, she contends that she injured herself on an improperly installed covered trench drain dug and constructed by an unlicensed and unqualified handyman at the residence. Plaintiff contends that Defendant negligently created and maintained the ditch (and its covering) on the property and that the same resulted in her extensive injuries. Defendant now moves for summary judgment, or, in the alternative, summary adjudication, as to both...

Excerpt: ...val, the Court is in need of additional information as discussed and the hearing is continued on the Court's own motion to July 7, 2023, at 10m a.m., in Department 6. In connection with its motion, Plaintiff has submitted the declaration of Mary Collins ("Ms. Collins"). Ms. Collin's is the president of Defendant TTSD and her declaration is submitted for the purposes of establishing that proper notice has been sent to the Class Members. That decla...

Excerpt: ... those issues only. The parties are ordered to timely select and agree upon a third party arbitrator in accordance with Section 6 of their partnership agreement. (See CodeofCivi/ Procedure S 1281.6.) Ifthe parties are unable to select or agree upon an arbitrator as provided for in their agreement, or the method otherwise fails, the parties may seek further relief under Secton 1281.6. Discussion of .Secäon 1281.2 "On petition of a party to an arb...

Excerpt: ... accordingly, consistent with the failure of the contract cause of action and the absence of a quantum meruit claim by Plaintiffs. (Defendants' Motion, Pg. 7:3-5, italics original.) Defendants agree with the Court's finding that Plaintiff's contract claim failed, but argue that the Court's purported evaluation of the value of the lien was not based on a contract amount, but was impliedly based on a cause of action for quantum meruit, which was no...

Excerpt: ...tinued on the Court's own motion to July 28, 2023, at 1:00 p.m., in Department 6. Asto the motion to disqualify, the Court will conduct a brief evidentiary hearing at the continued hearing date. As to the moton to quash, Defendant is directed to file an opposition thereto no later than June 16, 2023. Defendant's opposition must include a Rule 3.113 compliant memorandum, including "a discussion of the statutes, cases, and textbooks cited in suppor...

Excerpt: ...tion District ("NID"). NID provides its employees and retrees with contributions to Health Reimbursement Accounts ("HRA") based on a particular formula. Where the employee/retiree's chosen health plan is less expensive than the designated plan, the difference in premiums is deposited by NID into the individual's HRA account. In Plaintiff's case, after he retired and prior to him becoming Medicare eligible, this resulted in him being compensated a...

Excerpt: ... with the motion. Golden Gate has made the requisite showings that discovery requests were timely and received, the time for response has elapsed, and no answers, documents, requests for extensions, or other adequate responses have been received. The motion is granted in its entirety (unless Plaintiffs serve substantially compliant responses to the RFAs before the hearing). Plaintiffs are both ordered to provide responses, without objections, to ...

Excerpt: ...evaluation of the fairness of the settlement, the Court notes that the number of class members has decreased from two hundred sixty (260) at the time of preliminary approval to two hundred fifty-four (254) at present. Counsel shall briefly address the reason for this decrease in class members. Counsel shall also address how the notice of final judgment will be given to class members. (See Rules of Court 3.771(b).) Finally, Counsel is directed to ...

Excerpt: ...ed, to compel Brogie's attendance at a deposition on or before May 22, 2023, and for monetary sanctions against Brogie (the "Brogie Motion"); and (2) motion to compel discovery responses, for RFAs to be deemed admitted, and for monetary sanctions against Fruition (the "Fruition Motion"). Asto both, they seek monetary sanctions. Neither Brogie nor Fruition have filed an opposition or other pleadings in response to these motions. The Martins have m...

Excerpt: ...ted, it appears Plaintiff dismissed Kessler on her own motion and without an express agreement from Kessler to waive costs as a condition thereto. The dismissals instead resulted from Plaintiff's counsel's discussion with counsel for Co-Defendant Capellanio. The Court finds Defendant Kessler is a "prevailing party" within the meaning of Code of Civil Procedure section 1032(a)(4). To the extent the Court has discretion to find Kessler is not the "...

Excerpt: ...ng." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884, italics added.) Accordingly, "an amended complaint supersedes all prior complaints" and "furnishes the sole basis for the cause of action ...." (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.) "[Tlhe original complaint ceases to have any effect either as a pleading or as a basis for judgment." (ld. at 1131, italics added; Anmoco, Inc. v. Boholken (1...

Excerpt: ..., Plaintiff's motion is denied in its entirety. Background Plaintiff alleges that on or about April 7, 2021, she was walking on or near South Auburn and Neal Street in Grass Valley. She tripped on or near a raised portion of the sidewalk adjoining an embedded television cable box and was injured as a result. Plaintiff sues GV and Comcast (owner of the cable box) alleging negligence and premises liability causes of action. Asto Grass Valley, Plain...

Excerpt: ...'s October 7, 2022, order is denied. Plaintiff's motion to continue the trial dates approximately ninety (90) days is granted. The currently set trial, pre-trial conference, and mandatory settlement conference dates are vacated. The Court intends to reset new dates for the same at the hearing and the parties shall meet and confer in advance to discuss agreeable dates. Discussion Background Plaintiff originally filed her complaint on January 26, 2...

Excerpt: ... Heger's appeal and the Third District Court of Appeal's ("Third District") issuance of a remittitur. The parties shall immediately notify the Court upon the resolution of the appeal and issuance of a remittitur. Discussion Heger previously brought a motion to compel arbitration in this matter. That motion was denied by Judge Pro Tem Bradrick on or about February 25, 2022. Heger thereafter filed a notice of appeal with this Court on August 23, 20...

Excerpt: ...laims. Her complaint alleges causes of action ("COA") for: (1) discrimination under the Fair Employment Housing Act ("FEHA"); (2) failure to accommodate in violation of the FEHA; (3) failure to engage in the interactive process under the FEHA; (4) "failure to prevent" in violation of the FEHA; (5) retaliation in violation of the FEHA; and (6) wrongful termination under the FEHA. The District now moves for summary judgment, or, in the alternative,...

Excerpt: ...nty's parking lot while leaving work at the Wayne Brown Correctional Facility ("WBCF") in Nevada City. Plaintiff asserts a single cause of action for a dangerous condition on public property and asserts that the "dangerous condition" was due to the presence of snow and/or ice in the parking lot. Defendant brings its motion for summary judgment challenging the sole cause of action. Defendant argues that the claim fails for six separate and distinc...

Excerpt: ...ment submitted by Plaintiff on April 18, 2023, Plaintiff requests that the action be "dismissed on the merits with prejudice and without costs to any party" subject to the Court's continuing jurisdiction with respect to the administration and enforcement of the agreement. This request appears to be contrary to Rule of Court 3.769(h), which states in pertinent part: If the court approves the settlement agreement after the final approval hearing, t...

Excerpt: ... The Court intends to set new dates and the parties shall meet and confer before the hearing to discuss agreeable dates. Discussion In evaluating a motion for continuance, the Court is guided by consideration of the non-exclusive list of factors contained in Rules of Court, Rule 3.1332. (See also Oliveros u County of Los Angeles (2004) 120 Cal.App.4th 1389, 1394 [abuse of discretion for court to grant continuance without considering Rule 3.1332 f...

Excerpt: ... civil dispute first filed on December 2, 2019, surrounding an unsecured installment note from 2013. The terms of said note include a loan by Defendant to Plaintiff in the amount of $20,000. As security for this loan, Plaintiff transferred title of real property to Defendant with the understanding that Defendant would thereafter transfer title back once the loan was repaid. Plaintiff contends he tendered full payment in 2019 and demanded Defendan...

Excerpt: ... by counsel for all parties. Defendants shall show cause why they should not be held in contempt for their prior failure to appear. Discussion Background Plaintiff's home was destroyed in a fire in April 2014 and he subsequently entered into a series of contracts with Domus Construction and Design Inc. ("Domus") for the purposes of reconstructing his home. Domus began work in spring 2014 and abandoned the work atthe end of 2021. Plaintiff paid th...

Excerpt: ...indemnity-type claims. For the reasons discussed more fully below, the motion is denied. Trial dates are confirmed as previously set. Discussion Code of Civil Procedure section 428.50 is the operative statute for present purposes. It provides that a permissive cross-complaint may be filed "at any time before the court has set a date for trial" or else with leave of court "in the interest of justice at any time during the course of the action." (l...

Excerpt: ...s request for monetary sanctions is granted as prayed in the amount of (See Code of Civil Procedure SS 2030.300(d), 2031.300(c).) Discussion Rule ofCourt, Rule 3.1345 requires that any motion to compel further responses to RFAs or interrogatories "must be accompanied by a separate statement." (ld. at subd. The contents of the separate statement must "provide all the information necessary to understand each discovery request and all the responses ...

Excerpt: ...ss and for his continued failure to comply with the Court's prior discovery orders. Defendants' moton for judgment on the pleadings is moot in light of the Court's granting of Defendants' other motion. Defendants also request the Court take judicial notice of two matters pursuant to Evidence Code secton 452 subdivisions (c) and (d), to wit: (1) Defendants' June 10, 2022, motion to deem RFAs admitted, along with Defendants' accompanying declaratio...

Excerpt: ... motion or on motion of the defendant if to do so appears to the court appropriate under the c:ircumstances of the case." (ld. at subd. (a).) Any such dismissal "shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council." As is relevant here, such dismissal may occur after either "[s]ervice is not made within two years after the achon is commenced against the defendant" or "[t]he ac...

Excerpt: ...iff's Special Interrogatories, Set One, Nos. 75-80 within thirty (30) days of notice of the Court's order. In connection with its own motion, Plaintiff is awarded attorneys' fees and costs as prayed in the amount of $2,685.00. In connection with Defendant's unsuccessful motion for protective order, Plaintiff is awarded an additional $2,450.00 in attorney's fees. Analysis Defendant's Motion for Protective Order is Denied as Untimely Code of Civil ...

Excerpt: ...3) Forest River or its authorized repair facility failed to repair the RV to conform to warranty within a reasonable number of attempts." Def. Mot., 2: 5-9. Plaintiffs argue that they presented substantial evidence for a jury to find a defect covered by Forest River's written warranty and of DeMartini RV Sales' ("DeMartini") failure to repair the RV to conform to the warranty within a reasonable number of attempts. Pl. Opp., 3:1-2, 4:10-11. Also ...

Excerpt: ...l Procedure section 527.5. Section 527.6(s) provides in pertinent part: "The prevailing party in an action brought pursuant to this section may be awarded court costs and attorney's fees, if any." "[T]he decision whether to award attorney fees to a prevailing party—plaintiff or defendant—under section 527.6[(s)] is a matter committed to the discretion of the trial court." (Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802.) Defendant may see...

Excerpt: ...fifteen (15) calendar days before the scheduled case management conference, each party shall file with the court and serve on all other parties a completed case management conference statement"), italics added.) No appearances are required. Discussion Application for Writ of Possession Code of Civil Procedure sections 512.010 et seq. govern applications for writs of possession. Secton 512.030 requires that, prior to the hearing on a writ of posse...

Excerpt: ...amount of $42,219.69, court costs of $502.50, less credits of $400.00 for sums already paid by Defendant. Plaintiff does not seek attorney's fees and none are awarded. Discussion Statutory enforcement of settlement agreements is provided for under Code of Civil Procedure secton 664.6. The statute contains a number of requirements. If the agreement fails to meet these, it is not enforceable by this mechanism. Those requirements are, as relevant fo...

Excerpt: .... As to all motions, Defendant seeks imposition of monetary sanctions. For the reasons discussed more fully below, the following motions are granted as prayed: Defendant's motion to deem RFA set one admitted, Defendant's motion to deem RFA set two admitted, and Defendant's motion to com#l Plaintiff's responses to form interrogatories set three. Plaintiff shall provide verified responses to form interrogatories set three within ten (10) days of th...

Excerpt: ...lieved. The motions to compel against Justne Martin and Michael Martin are granted. 80th parties are ordered to provide further response to SROG Nos. 17, 41, 45, 48, 50, 55, 56, 57, 58, 69, 70, 71, and 72. Michael Martin is additionally ordered to provide further response to RFP No. 1. Such additional responses shall be provided within thirty (30) days of the Court's order. Fruition and Brogie shall prepare and submit a proposed order within seve...

Excerpt: ...is mechanism. Those requirements are, as are relevant for present purposes: (1) pending litigation at the tme of both the agreement and the tme of enforcement (see Sayta v. Chu (2017) 17 Cal.App.5th 960, 957 [trial court loses jurisdiction to enforce if complaint is dismissed without a proper request to retain jurisdiction]); (2) parties have stipulated to the agreement orally before the court or in writing and the same contains all of the materi...

Excerpt: ...ded attorneys' fees in the reduced amount of $1,632.05. Defendants shall prepare and submit a proposed order within seven (7) days of this Court's ruling becoming final. Plaintiff filed her own separate motion to compel further responses on February 17, 2023, but the same has not yet been calendared for hearing. The hearing on Plaintiff's motion is hereby set for April 7, 2023, at 10m a.m., in Department 6. Opposition and reply briefs, if any, ar...