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...

Excerpt: ...rocedure 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 seek r...

Excerpt: ...clude, among others, a special hospital district for the State of California. Plaintiff Streamline was awarded three separate contracts from 2019 to 2021, which involved constructon related to exit and security doors (the "Security Door Project'), the extended care cosmetic improvements project (the "ECC Project"), and the Incline Village Community Hospital Sterile Processing Department project (the "SPD Project"). Plaintiff Streamline was the De...

Excerpt: ...d for March 17, 2022. The District's motion to continue the trial date and for a corresponding extension of the discovery cutoff dates is granted as prayed. The parties shall meet and confer in advance of the hearing to discuss agreeable trial dates. Defendant's motion for summary judgment is continued on the Court's own motion to April 28, 2023, at 10:00 a.m., in Department 6. The District's Motion for Continuance of Trial Dates In evaluating a ...

Excerpt: ...ter is before the Court on Plaintiff's request to order production of documents from Defendants pursuant to Code of Civil Procedure section 1987(c). For the reasons discussed more fully below, the motion is denied without prejudice. Plaintiff has failed to provide the required notice and to show the required “good cause.” Code of Civil Procedure section 1987 provides that where a party timely serves a notice to appear and to produce documents...

Excerpt: ...efore the Court on Plaintiff's motion to compel further responses to its requests for admissions (“RFAs”) set one, special interrogatories (“SROGS”) set one and form interrogatories set one. Plaintiff's motion is denied without prejudice for failure to comply with the mandatory separate statement requirements as described in Rules of Court, Rule 3.1345. Given the procedural deficiencies, the Court has not considered the merits of the unde...

Excerpt: ...ances are required by counsel for all parties. The matter is before the Court for a continued hearing on Plaintiff's motion for preliminary approval of class action settlement. The Court previously heard the matter on January 27, 2023, and requested supplemental briefing, declarations, and or other pleadings to address two issues, to wit: (1) the appropriateness of the proposed class administrator; and (2) Plaintiff's request to approve an amendm...

Excerpt: ... noted and overruled. The Court has inherent authority to control the proceedings before it to achieve substantial justice. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 954, 967; see also Code of Civil Procedure §§ 128, 187; Phillips v. Phillips (1953) 41 Cal.2d 869, 874.) As to the motion, Defendant has made the requisite showings that his RFAs were timely propounded, the time for response has elapsed, and no answers, documents, reque...

Excerpt: ...should be provisionally certified; (2) that Class Counsel and the Class representative are appropriate for appointment; (3) that the proposed settlement agreement is fair and reasonable; and (4) that the proposed class notice is adequate. The motion is thus granted as prayed. Plaintiff indicates in his motion that class counsel will, in connection with their motion for final approval of the settlement, submit their corresponding request for attor...

Excerpt: ...and motion for mandatory relief also filed on November 10, 2022 (the “November 10th Motion for Reconsideration”). Plaintiff filed the latter two motions during the pendency of the first and after the Court issued its tentative ruling proposing to deny the motion. For the reasons discussed more fully below, Plaintiff's motions are denied. Defendant Vail's request for separate sanctions under Code of Civil Procedure section 473(b) and 128.7, ma...

Excerpt: ...penalties in the amount of $600.00. This matter then came before this Court on Appellant's appeal of administrative fines/penalties pursuant to Government Code section 53069.4(b)(1). Appellant filed his appeal on or about August 6, 2021. Pursuant to the statute, the Court conducted a de novo review based on the contents of the local agency's file, including a written transcript of the administrative hearing. The matter was argued by counsel on Se...

Excerpt: ...d. Defendant or his counsel are ordered to pay monetary sanctions in the amount of $1,560.00. Defendant's request for the Court to take judicial notice of court minutes in the San Diego Superior Court is denied. It is undisputed that the Court may take notice of a court record under Evidence Code section 452(d). (See Wolf v. CDS Devco (2010) 185 Cal.App.4th 903, 914.) That record to be noticed must nonetheless be relevant to the issues at bar. (S...

Excerpt: ...o more than $8,000 to the proposed settlement administrator, Phoenix Settlement Administrators (“Phoenix”). Phoenix is tasked with sending class notices and generally administering this settlement. The Court is not initially satisfied for the purposes of preliminary approval that the payment to Phoenix is reasonable and appropriate at this time. Plaintiffs have not submitted a declaration from the proposed class administrator or a copy of its...

Excerpt: ...their contents or their proper interpretation. 1. Background Plaintiff is a corporation formed for the purpose of providing home automation services in the Verdi and Tahoe areas. Defendant is allegedly a former director, shareholder, and employee of the company. Plaintiff contends that, while Defendant was still a director, officer, and shareholder of the company, he misled customers by telling them that Plaintiff was incompetent to provide servi...

Excerpt: ...motion is denied as moot in light of Defendant's serving of substantially compliant responses after the filing of the present motion. Plaintiff's request for monetary sanctions in connection with this motion is, however, granted as prayed. Defendant or his counsel are ordered to pay monetary sanctions in the amount of $1,560.00. Defendant's request for the Court to take judicial notice of court minutes in the San Diego Superior Court is denied. I...

Excerpt: ...estern Sierra Medical Clinic. Defendant contends that Plaintiff entered into agreements to resolve the disputed issues in mediation and then in arbitration and has filed a motion to compel arbitration set to be heard on February 3, 2023. Plaintiff has filed a motion to compel further responses, which is also pending on the same date. Defendant herein seeks to stay proceedings in this matter pending the Court's determination on its motion to compe...

Excerpt: ...rt's order. The Court intends to set this matter for further evidentiary hearing on the issuance of a restraining order. Defendant will be permitted to file a written response to the petition. Counsel for the parties are to meet and confer in advance of the hearing to discuss agreeable dates for an evidentiary hearing. The parties shall also be prepared to address whether the reissuance of a temporary restraining order is appropriate during the p...

Excerpt: ...are awarded attorneys' fees in the amount of $66,668.00. Costs are awarded in the amount of $7,558.83. Plaintiffs shall submit a conforming order within seven (7) days of the Court's final ruling. No appearances are required. (1) Background This case involves a dispute between former landlords and tenants. Plaintiffs brought the present action alleging that Defendants damaged the subject real property (and its contents) during their lengthy tenan...

Excerpt: ...iles. (Evidence Code § 452(d).) Plaintiff is granted leave to amend and shall file an amended complaint within ten (10) days of this Court's order. Analysis (i) Legal Standard on Demurrer A demurrer is properly brought where defects appear on the face of the complaint or from a judicially noticeable matter. (Code of Civil Procedure §§ 430.10, 430.30, 432.10.) But “[w]hen any ground for objection to a complaint or cross‐complaint does not a...

Excerpt: ... involves employment‐related claims brought by former employee, Plaintiff Dylan Storey (“Storey”), whom Defendant claims was terminated for legitimate reasons insofar as he was an at‐will employee with no contract of employment for a definite term. Plaintiff's primary contention is that he was induced to move from Colorado with his family by virtue of Defendant Tahoe Sierra Eye & Optical's (“TSEO”) false employment promises and that h...

Excerpt: ...riefing and two supplemental declarations, including relevant attachments in support of the motion. The Court is tentatively satisfied of all of the following: (1) that the class should be provisionally certified; (2) that Class Counsel and the Class representative are appropriate for appointment; (3) that the proposed settlement agreement is fair and reasonable; (4) that the proposed class notice is adequate; (5) that the proposed cy pres recipi...

Excerpt: ... to the reasonableness/amount of the requested fees and provides the following analytic framework as a guidepost for such argument. A. Analysis “Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest[.]” (Code of Civil Procedure § 1021.5.) Our high court has defined the express criteria un...

Excerpt: ...proximately ninety (90) days will be granted. Discovery deadlines will track with the newly set trial dates as prayed. Appearances are required to set a new date for trial. The parties are to meet and confer in advance of the hearing to discuss agreeable trial dates. Motion for Continuance of Trial Dates In evaluating a motion for continuance, the Court is guided by consideration of the non‐exclusive list of factors contained in Rules of Court,...

Excerpt: ... made the requisite showings that discovery requests were timely propounded, the time for response has elapsed, and no answers, documents, requests for extensions, or other responses have been received. Defendant's motion to compel responses to the form interrogatories is thus granted as prayed. Defendant's motion to compel responses to requests for admissions is, for the reasons discussed more fully below, denied without prejudice. Defendant is ...

Excerpt: ...s as prayed in the amount of $2,860.00. (1) Background On or about August 2, 2022, Plaintiff served their special interrogatories set one, nos. 1‐74 (the “SROGS”) on Defendant. Plaintiff gave Defendant numerous extensions to answer the SROGS, which he ultimately did on or about October 14, 2022. Defendant objected to SROGS 36‐74 on the basis that the number propounded exceeded the maximum allowed under Code of Civil Procedure section 2030...

Excerpt: ...ions. In connection with its opposition to the motion to compel, Plaintiff also brings a request for judicial notice in a pending case in the California Supreme Court: Adolph v. Uber Technologies. For the reasons discussed more fully below, Defendant's motion to compel arbitration is granted in part and denied in part. Defendant's motion to compel arbitration of Plaintiff's individual PAGA claim is granted. Defendant's motion to dismiss the repre...

Excerpt: ...end is denied. McClain's unopposed request for judicial notice is granted in part and denied in part. A. Background The case centers on a dispute involving a 50‐foot‐wide, 435‐foot‐long gravel section of Murchie Mine Rd. to the east and west of the Stonebridge and Deer Creek Park neighborhoods (the “Easement”). There are two affected properties: one owned by the McClain Defendants (the “McClain Property”) and the other owned by th...

Excerpt: ...r and sanctions is continued on the Court's own motion to January 20, 2023, at 10:00 a.m., in Department 6. The Court is in receipt of Plaintiffs' counsel's declaration in support of its opposition to GVD's motion as well as its previous declarations of necessity (attached to GVD's moving papers). The Court is, however, still in need of additional information from Plaintiffs to assess whether the special interrogatories and requests for admission...

Excerpt: ...e, mistake, neglect, or other cause, may apply to the court … to file a cross‐complaint, to assert such cause at any time during the course of the action. The court … shall grant, upon such terms as may be just to the parties, leave … to file the cross‐complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of actions. The...

Excerpt: ...ts own files and records in that case. For the reasons discussed more fully below, the Court finds good cause to continue the impending trial under Rule 3.1332(c)‐(d). Defendant's motion is granted and a brief continuance will be granted. Discovery cut‐off and other deadlines will track with the newly set trial dates. Appearances are required to set a new date for trial. The parties are to meet and confer in advance of the hearing to discuss ...

Excerpt: ...vides in pertinent part: “The court may, upon any terms as may be just, relieve a party … from a judgment, dismissal, order, or other proceeding taken against him or her through … mistake, inadvertence, surprise, or excusable neglect.” For purposes of Section 473(b), the term “proceeding” is construed broadly and refers to effectively “[a]ll the steps or measures adopted in the prosecution or defense of an action.” (Zellerino v. B...

Excerpt: .... (1) Class Administrator The Parties have agreed to an estimated payment of no more than $7,000 to the proposed settlement administrator, Phoenix Settlement Administrators (“Phoenix”). Phoenix is tasked with sending class notices and generally administering this settlement. The Court is not initially satisfied for the purposes of preliminary approval that the payment to Phoenix is reasonable and appropriate at this time. Plaintiffs have not ...

Excerpt: ...endants' motion to strike or tax costs is granted in part and denied in part. As to Plaintiff's motion for attorneys' fees, it is granted as follows: Plaintiff is awarded attorney's fees in the amount of $949,592.62, consisting of a lodestar of $633,061.75 and a multiplier of 1.5. Plaintiff is also granted the additionally requested attorneys' fees incurred in connection with the present motion in the unadjusted amount of $8,704.50. As to Defenda...

Excerpt: ...lainant is granted leave to amend and must file her amended cross‐complaint within ten (10) days of this Court's order. Background Plaintiff in this matter is AFT Investors, LLC (“AFT”) and by verified complaint sues Defendants – Charles Smith, Tamara Smith, and Christine Felley (“Felley”) – for nonpayment of a written promissory note and for foreclosure on the deed of trust. AFT's complaint concerns three separate pieces of propert...

Excerpt: ... class notice is adequate; (5) that the proposed cy pres recipients are appropriate under Code of Civil Procedure section 384; (6) that the class administrator is appropriate and the proposed costs for such administration as reasonable; and (7) that the requested attorneys' fees and costs and class incentive payment are reasonable. The motion is thus granted as prayed. Counsel is directed to provide the Court with proposed dates for a hearing on ...

Excerpt: ...by the court].” Procedural requirements include: (1) a copy of the proposed amended pleading; (2) a separate declaration detailing the effect of the amendment, why it is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why it was not made earlier. (Ca. Rules of Court, Rule 3.1324(a)‐(b).) General guidelines governing this type of relief provide that it should be requested promptly on discovery o...

Excerpt: ...n evidentiary hearing pursuant to Probate Code section 1043 and 1046. Petitioner responded thereafter and contends that Mr. Mueller does not have standing in this matter and is therefore not entitled to the requested evidentiary hearing. The Court presently requires further briefing from the parties on the standing, right to evidentiary hearing, and other issues raised in Petitioner's response to the objection, including from Mr. Mueller and Resp...

Excerpt: ...ion, opposition filings, as well as Plaintiff's reply. Plaintiff's motion is hereby denied on procedural grounds for failure to comply with Ca. Rules of Court, Rule 3.1113, to wit: for counsel's failure to provide a compliant memorandum in support of her motions. Plaintiff's motions are also facially untimely as plead, having been filed in excess of the time authorized under Code of Civil Procedure sections 430.40(b), 435(a)(2), and Rule 3.1322, ...

Excerpt: ...y order. As discussed more fully below, Defendants' motion is granted in part and denied in part. Defendants' request for terminating sanctions in the form of a dismissal with prejudice is denied. Defendants' alternate request for an order “precluding Plaintiff from using any documents in this case including in opposition to any Motion for Summary Judgment or at trial” is also denied. Defendants' alternate request for evidentiary sanctions as...

Excerpt: ...Discussion: Plaintiff first attempted unsuccessfully to file its motion for summary judgment (“MSJ”) and supporting papers on August 18, 2022. Its supporting documents were successfully filed on the same date and include: (1) the separate statement in support of the MSJ; (2) a declaration from Plaintiff's counsel Ashley Mulhorn; (3) declaration of Plaintiff's qualified witness; (4) notice of lodging of proposed order; (5) a proposed order; an...

Excerpt: ... of Civil Procedure section 1008. Defendant Vail's request for separate sanctions under Code of Civil Procedure section 473(b) and 128.7 are both denied. Sanctions are only available under Section 473(b) if Plaintiff prevails. As to the Section 128.7 request, such a request has not here “be[en] made separately from other motions or requests ….” Vail must, if it seeks sanctions under Section 128.7, bring a separate noticed motion for that pu...

Excerpt: ...representative are appropriate for appointment; (3) that the proposed settlement agreement is fair and reasonable; (4) that the proposed class notice is adequate; and (5) that the requested attorneys' fees and costs and class incentive payment are reasonable. The Court is concerned, however, that Plaintiffs have not provided sufficient information to allow for the Court to assess the propriety of the proposed class administrator and the proposed ...

Excerpt: ... they are presently ““unable to provide an accurate judgment for the court to render against the [CHP].” Defendants seek an extension until such time “as settlement or verdict is rendered” and notes that global settlement efforts are presently underway. The Court finds good cause exists to grant Defendants' motion for additional time, but declines to give Defendants an open‐ended and indefinite extension of time in which to seek its d...

Excerpt: ...denied because the alleged defect does not appear on the face of the complaint and the documents filed in support are not properly judicially noticeable. Defendant is ordered to file its answer within statutory time. No appearances are required. 1. Standard of Review A demurrer is properly brought where defects appear on the face of the complaint or from a judicially noticeable matter. (Code of Civil Procedure §§ 430.10, 430.30, 432.10.) But �...

Excerpt: ...ially proper, and are set forth in a verified memorandum, the burden is on the objecting party to show that such costs are not properly chargeable or are unreasonable. (Nelson, supra, 72 Cal.App.4th at 130‐132.) If, however, the costs do not appear proper, if their necessity seems facially doubtful, and if the items are properly challenged, then the burden is on the party claiming the costs to establish their necessity. (Id .) “The court's fi...

Excerpt: ...with Ca. Rules of Court, Rule 3.1345; and (3) Plaintiff failed to adequately meet‐and‐confer before filing the present motion. First, the Court agrees that the motion was not timely served pursuant to Section 1005(b). Second, the Court agrees that Plaintiff's separate statement is not in compliance with Rule 3.1345, which is in and of itself a sufficient basis to deny Plaintiff's motion. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894.) O...

Excerpt: ...n for a TRO or preliminary injunction, the Court should consider whether the defendant has voluntarily discontinued the wrongful conduct. (See Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574; see also California Service Station etc. Assn. v. Union Oil Co. (1991) 232 Cal.App.3d 44, 57.) This is because “[t]o authorize the issuing of an injunction it should appear with reasonable certainty that the wrongful acts will be continued o...

Excerpt: ...ted to address the question of mootness in their respective arguments. The operative complaint for purposes of the MSJ is Plaintiff's first amended complaint filed on or about October 21, 2019 (the “FAC”). The FAC originally contained eight (8) causes of action. County Defendants demurred to the second, third, and eighth causes of action. That demurrer was sustained without leave to amend pursuant to the Court's order on March 25, 2020. There...

Excerpt: ... Defendants' motion to compel responses to all the above‐noted discovery is granted. Monetary sanctions are awarded, but are, however, reduced to $1,632.05 as discussed below. No appearances are required. Discussion of Monetary Sanctions Plaintiff's failure to respond as to each of the above‐described discovery requests constitutes “misuse of the discovery process” within the meaning of Ca. Code of Civil Procedure § 2023.010(d) (“[f]ai...

Excerpt: ...nces.” Defendants allegedly do not pay rent, utilities, taxes, or any other associated costs in connection with their tenancy at the subject property. On or about June 21, 2022, Defendants were served with a sixty‐day notice of termination of tenancy. Plaintiffs thereafter filed the present action after Defendants allegedly failed to vacate the property Plaintiffs, Spencer and Juliette Shure, acting in their capacity as trustees of the Spence...

Excerpt: ..., Wells Fargo, seeks damages in the amount of $6,435.06 for Defendant's alleged failure to remit payments on her credit card account. Defendant is self‐ represented and filed her answer to the complaint on or about May 31, 2022. On or about June 20, 2022, Plaintiff served its first set of discovery on Defendant; this discovery included “Request for Admissions – Set One” (the “Discovery”), which are the subject of the present motion. D...

Excerpt: ...by suffered “severe injury and pain.” The complaint was filed on or about August 9, 2021. On May 9, 2022, Plaintiff and/or her counsel failed to appear at the previously scheduled order to show cause (“OSC”) hearing and the Court dismissed the case without prejudice. Plaintiff now brings the present motion to set aside the dismissal pursuant to Code of Civil Procedure section 473 based on counsel's inadvertence, neglect, or mistake. (2) A...

Excerpt: ...tated below, both motions are denied. Plaintiff's objections to Rees's evidence are sustained in part and overruled in part as discussed below. (1) Background This cases arises from a personal injury dispute involving then‐four‐year‐old Plaintiff, Julian Alvarado. Plaintiff alleges he was injured when struck by a vehicle while snow‐sledding with his family while in parking lot owned by Sugar Bowl. (Complaint ¶¶ 5‐6.) On the date in qu...

Excerpt: ... below, McClain's demurrer is sustained as to all three causes of action for failure to state facts sufficient to constitute a cause of action. Leave to amend is denied. McClain's unopposed request for judicial notice is granted and the Court will take notice of its prior ruling and order entered on June 17, 2022. Standard of Review: A demurrer is properly brought where defects appear on the face of the complaint or from a judicially noticeable m...

Excerpt: ...he underlying action. (See Willdan v. Sialic Contractors Corp. (2007) 158 Cal.App.4th 47, 54 [good‐faith settlements under Section 877.6 preclude future contribution and equitable indemnity claims]; see also Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 817.) The protections sought by Oakview are legally available to cross‐defendants who settle with either a plaintiff or a cross‐complainant. (KAOM, Inc. v. Superior Court (1995...

Excerpt: ...imely as plead, having been filed in excess of the time authorized under Code of Civil Procedure §§ 430.40(b), 435(a)(2), and Rule 3.1322, and submitted without a declaration to explain any delay or extension authorized or otherwise agreed upon by the parties. Plaintiff has also failed to provide the required meet‐and‐confer declaration. (Code of Civil Procedure § 430.41(a) [before filing a demurrer, “the demurring party shall meet and c...

Excerpt: ...ke may be directed against an entire pleading, or, as here, to one allegation in a single cause of action. (Code of Civil procedure § 435(b).) The motion can be used to strike irrelevant matter. (See American Aeronautics Corp. v. Grand Central Aircraft Co. (1957) 155 Cal.App.2d 69, 84.) In assessing the propriety of this motion, the Court considers only matters that appear on the face of the pleadings or that can otherwise be judicially noticed....

Excerpt: ...ow, the perfecting of the above‐noted appeal does not preclude the Court's consideration of Plaintiff's motion. Plaintiff's request for a preliminary injunction is, however, denied. Defendants' appeal of the denial of the motion to compel does not preclude the Court's consideration of Plaintiff's request for a preliminary injunction. Defendants filed an appeal of the Court's prior denial of their motion to compel arbitration in this matter. Def...

Excerpt: ...endant also demurs separately and specifically to Plaintiff's claims for punitive damages. For the reasons discussed more fully below, Defendant's demurrer is sustained as to the third cause of action for intentional infliction of emotional distress on the grounds that the complaint fails to state facts sufficient to state a cause of action. Defendant's demurrer is denied as to the defamation and negligence causes of actions. It is also denied in...

Excerpt: ...f the existence of the petition in the Sonoma County case. For the reasons discussed more fully below, Defendant's motion for change of venue is granted and the case is hereby transferred to Sonoma County. Defendant's request for attorney's fees and costs under Code of Civil Procedure § 369b(b) is denied as not timely raised in her initial moving papers. The request for fees was raised only in Defendant's reply brief and Plaintiff has not been p...

Excerpt: ...comply with Ca. Rules of Court, Rule 3.1113, to wit: for counsel's failure to provide a compliant memorandum in support of her motions. Plaintiff's motions are also facially untimely as plead, having been filed in excess of the time authorized under Code of Civil Procedure §§ 430.40(b), 435(a)(2), and Rule 3.1322, and submitted without a declaration to explain any delay or extension authorized or otherwise agreed upon by the parties. Plaintiff ...

Excerpt: ...discovery referee be appointed for party and party‐ representative depositions, again with costs to be shared equally; or, as a second alternative, (3) that a referee be appointed solely for the purposes of conducting Plaintiff's deposition, even if costs must be borne exclusively by Plaintiff. For the reasons stated more fully below, Plaintiff's motion is denied as the requested relief does not appear presently to be “necessary” within the...

Excerpt: ... to 2018. For the reasons stated more fully below, the motion is denied. Defendant has failed to show that there is a violation or even a threatened violation of the relevant Rules of Professional Conduct. Court's Authority to Disqualify Counsel There is no dispute in the law that the Court has the authority to disqualify counsel. (Code of Civil Procedure § 128(a)(5); Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 113 [cou...

Excerpt: ...�Willful Failure to Warn” is hereby stricken. Plaintiff is granted leave to amend and shall file its amended pleadings within ten (10) days of the Court's order. Analysis A motion to strike may be directed against an entire pleading, or, as here, to one allegation in a single cause of action. (Code of Civil procedure § 435(b).) The motion can be used to strike irrelevant matter. (See American Aeronautics Corp. v. Grand Central Aircraft Co. (19...

Excerpt: ...ended cross‐complaint is to be filed within ten (10) days of the Court's order. Hayes's request to take judicial notice of the complaint is granted as to the document's existence, but not for the truth of its contents. Basic Standard of Review The Court's approach to a demurrer on a cross‐complaint is the same as for a demurrer to a complaint. It is raised only if the defects appear on the face of the cross‐complaint or from a judicially no...

Excerpt: ...f Civil Procedure § 382 has two minimum requirements to sustain a class action: (1) an “ascertainable” class; and (2) a well‐defined “community of interest” in questions of law and fact. (Dunk, supra, 48 Cal.App.4th at 1806; see also Sav‐On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) As to the first element, for a class to be “ascertainable,” it must be sufficiently numerous such that it would be impractical ...

Excerpt: ...) for monetary sanctions in the amount of $3,410.00 to be split evenly between Mr. Mann and Ms. Thandi. Contempt Orders: In reviewing Plaintiff's request for contempt orders the Court is guided by Code of Civil Procedure section 1209 et seq. Plaintiff bases his present request on Mr. Mann's and Ms. Thandi's failure to comply with this Court's discovery ordered dated May 20, 2022 (the “Discovery Order”). Such is properly designated an allegati...

Excerpt: ...request for admissions admitted is denied; his related motion for monetary sanctions is, however, granted with modification as discussed more fully below. As to Plaintiff's motion to compel responses to the form interrogatories, the Court notes that as of the posting of this tentative, it has not received any notification that compliant responses have been served by Defendant. Plaintiff's motion to compel is granted and Defendant is ordered withi...

Excerpt: ...the above‐referenced motions. The Court further notes that Plaintiff is self‐represented, his counsel having been relieved by order of the Court on or about February 18, 2022. Defendants have made the requisite showings that discovery requests were timely propounded, the time for response has elapsed, and no answers, documents, requests for extensions, or other responses have been received. All of Defendants' motions are thus granted. Monetar...

Excerpt: ...easons for the same at the hearing. (See Stern v. Superior Court (2003) 105 Cal.App.4th 223.) The parties dispute the validity of the original loan, performance of the original loan, as well as title to the property pledged as security. The interests of justice would be best served by resolving all of these issues on the merits. (See e.g., Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085 [recognizing the “strong policy against di...

Excerpt: ...equest for an order directing Plaintiff to immediately pay him $21,000.00 in connection with his unrelated decedent estate matter is denied as it is in excess of the Court's jurisdiction in an unlawful detainer matter. The Court also notes its concerns as to whether the summary nature of unlawful detainer proceedings would allow for damages based on theft of personal property. (See Ca. Code of Civil Procedure § 1174.) The Court has jurisdiction ...

Excerpt: ...�), Nyaco, and Summit Restaurant and Bar (“Summit”); and (2) Defendant Summit's motion for joinder in the same. For the reasons stated below, Sugar Bowl's motion for summary judgment is granted as to Plaintiff's operative complaint as well as all of the derivative cross‐complaints against it. Plaintiff's evidentiary objections are overruled in part and sustained in part. Summit's motion for joinder is denied. (1) Background This cases arise...

Excerpt: ...ain by calculation[.]” And, further, they do not dispute the date of breach or the applicable rate of interest (10%) as contained in Section 3289. Defendant's sole contention in their opposition is that accretion of pre‐ judgment interest should effectively be tolled for a fourteen and one‐half month period, between February 1, 2021, when trial was set and April 19, 2022, when jury trial commenced, due to trial delays attributable to the CO...

Excerpt: ...hreshold matter, Plaintiff claims in his opposition that the public interest exception is applicable to the present case. The Court is not persuaded. To briefly restate the doctrine, Anti‐SLAPP protections are not available for cases involving: (1) enforcement actions brought in the name of the People of the State of California; (2) actions brought solely in the public interest or on behalf of the general public; and (3) actions involving comme...

Excerpt: ...nts to a pleading. Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047; “‘“[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments 'relate to the same general set of facts….”'” Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761. Here, although the trial is set in eight weeks, there is no prejudice to Defendant, as discovery has not yet closed. In addition, the Court finds that ...

Excerpt: ...art. It is granted as to Paragraphs 20 and 21, Exhibit ‘B,' and the map contained on Page 5, Lines 1‐17 of the FAC. Said portions of the FAC are hereby stricken. The balance of the motion to strike is denied. Plaintiffs are granted leave to amend. The second amended complaint must be filed no later than June 27, 2022. McClain's Demurrer: As presently plead, the FAC seeks an easement for public use over private lands in contravention of Ca. Ci...

Excerpt: ...etc. Trust (1985) 168 Cal.App.3d 818, 824, 214; Vega v. JPMorgan Chase Bank, N.A. (E.D.Cal. 2009) 654 F.Supp.2d 1104. See also generally Bernhardt, Cal. Mortgage and Deed of Trust Practice (Cont. Ed. Bar 4th ed. 2009) §§7.22‐7.34, 7.63‐7.66. “‘The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities ...

Excerpt: ...defendant's motion for attorney's fees and costs....'” Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1365. Here, the Court finds the anti‐slapp motion to strike to be meritorious. Defendants have made a prima facie showing that defendants' acts fall within the scope of the statute. Each of plaintiff's causes of action arises from actions made in or made in connection with prior litigation. As such, as to each cause of action, the required pri...

Excerpt: ...��step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether 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; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th...

Excerpt: ...ompanionship and society. This cause of action extends to protect children from unwarranted state interference with the relationships with their parents. But, courts have declined to extend such protection in the absence of a permanent, physical loss of association of an immediate family member as a result of unlawful state action. Benitez v. Gresham‐Barlow School Dist. 2012 WL3878419. Here, Plaintiff does not allege a permanent loss of parenta...

Excerpt: ... of Action for Prescriptive Easement: As to Truckee's demurrer to the Cross‐Complaint's first cause of action, it articulates three bases for its demurrer: (1) failure to state a cause of action on which relief can be granted; (2) as to the Entity Defendants only, that they lack legal capacity to sue; and (3) for uncertainty. With respect to the claim that there is a failure to state a cause of action on which relief can be granted against Plai...

Excerpt: ...87, the HOA is suing the roofing company for various causes of action, including negligence, breach of warranty and indemnity. After examining both complaints and the present cross‐complaint, this court cannot determine as a matter of law on the face of the pleadings that the roofing repairs contracted for in case 85687 included repairs to the roof in Plaintiff Volz's unit in case 85883. As this court cannot determine by examining the pleadings...

Excerpt: ... engage in a two‐step process. First, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity (i.e., that the acts of which plaintiff complains were taken in furtherance of defendant's right of petition or free speech). If such a showing has been made, the court then determines whether plaintiff has demonstrated a probability of prevailing on the claim. Equilon ...

Excerpt: ... Stone's banking records, which are private records, are not directly relevant to any cause of action or defense. Simply determining that decedent withdrew or transferred funds will not show where, when, what kind, or how much illicit drugs were purchased. Furthermore, there are less intrusive means to discover the nature and extent of decedent's drug usage. Plaintiffs may depose the “known drugs users” with whom decedent had frequent contact...

Excerpt: ...etc. Trust (1985) 168 Cal.App.3d 818, 824, 214; Vega v. JPMorgan Chase Bank, N.A. (E.D.Cal. 2009) 654 F.Supp.2d 1104. See also generally Bernhardt, Cal. Mortgage and Deed of Trust Practice (Cont. Ed. Bar 4th ed. 2009) §§7.22‐7.34, 7.63‐7.66. “‘The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities ...

Excerpt: ...ompanionship and society. This cause of action extends to protect children from unwarranted state interference with the relationships with their parents. But, courts have declined to extend such protection in the absence of a permanent, physical loss of association of an immediate family member as a result of unlawful state action. Benitez v. Gresham‐Barlow School Dist. 2012 WL3878419. Here, Plaintiff does not allege a permanent loss of parenta...

Excerpt: ... engage in a two‐step process. First, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity (i.e., that the acts of which plaintiff complains were taken in furtherance of defendant's right of petition or free speech). If such a showing has been made, the court then determines whether plaintiff has demonstrated a probability of prevailing on the claim. Equilon ...

Excerpt: ...��step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether 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; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th...

Excerpt: ...��step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether 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; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th...

Excerpt: ...r lost profits due to a deprivation of his fair share. See Jara v. Suprema Meats (2004) 121 Cal.App.4th 1238, 1258. Further, a demurrer is improper to challenge the sufficiency of an attorney. Moreover, Gonsalves is allowed to appear both individually and derivatively. Lastely, paragraph 30 alleges that Engberg himself, not just PPSC, used WR Associates' supplies. As to the second cause of action for declaratory relief, the cross‐complaint suff...

Excerpt: ... for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three‐step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether 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 (20...

Excerpt: ...le an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three‐step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, m...

Excerpt: ... named defendant is deceased. While the memorandum of points and authorities references a probate case, there is no request for judicial notice of that case or copies of any Order for Probate. Further, there is no declaration in support of the motion. The motion is procedurally and substantively defective and is, therefore, denied. ...

Excerpt: ...nds, Defendant Victoria Yeager has no standing to assert any defenses or arguments on behalf of Defendant Charles Yeager. Such arguments may be made on behalf of the executor of his estate. However, it does not appear his estate has appeared in this action yet. Further, if Defendant Victoria Yeager is attempting to appear in her capacity as an executor, she is required to have counsel. Moreover, CCP section 377.41 provides, �On motion, the cour...

Excerpt: ...laim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence o...

Excerpt: ...h plaintiff complains were taken in furtherance of defendant�s right of petition or free speech). If such a showing has been made, the court then determines whether plaintiff has demonstrated a probability of prevailing on the claim. Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66. In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which th...

Excerpt: ... comply with the requirements of Section 405.22 (see �405.23); claimant failed to establish the probable validity of a real property claim by a preponderance of the evidence (see �405.32); claimant is secured by an undertaking (see �405.33); and, claimant failed to file an undertaking ordered by the court (see �405.34). Kirkeby v. Sup. Ct. (2004) 33 Cal. 4th 642, 648. When a motion to expunge a lis pendens is filed, the burden is on the o...

Excerpt: ...ith the required specificity. As to the fifth cause of action for constructive fraud, the demurrer is sustained without leave to amend. Cross- complainants have failed to allege a confidential or fiduciary relationship. As to the twelfth cause of action for IIED, the demurrer is overruled. The facts set forth in the fraud claims are sufficient to allege extreme and outrageous conduct. As to the 13th cause of action for a civil RICO claim, the dem...

Excerpt: ... court were to deem such deposition to have previously occurred, the court finds good cause to allow an additional deposition on the new issues in the present case and, specifically, as to whom is the successor in interest is as to decedent Robert Cosick. As to the arguments relating to the right to privacy regarding estate planning documents, the court does find that such estate planning documents are generally protected by the privacy privilege...

Excerpt: ...012) �12:246. An attorney's declaration based upon hearsay is sufficient proof of the client's health condition. Ibid. at ��12:247 - 12:247.5. Judges have discretion to grant preferential trial settings where there is competent, clear and convincing evidence that a party suffers from a terminal illness and there is substantial doubt as to survival beyond six months. CCP �36(d); Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) ...