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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ... 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: ... 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: ... 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: ...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...