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: ...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...