Excerpt: ...al services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award�.� Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154. Trial courts proper...

Excerpt: ...l Estate 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 eq...

Excerpt: ... 709, 715. Here, counsel has stated that he needs to depose two of the cross-defendants as well as one witness. These are essential and extra time is needed due to counsel�s prior trial schedule as well as the limitation relating to the pandemic. In addition, a critical deposition is set for 9/25/20. Therefore, the requested continuance is granted. Any opposition and supporting papers must be served and filed by October 9, 2020. Any reply shall...

Excerpt: ...tive record in advance. CCP section 1094.6(c) provides, �The complete record of the proceedings shall be prepared by the local agency or its commission, board, officer, or agent which made the decision and shall be delivered to the petitioner within 190 days after he has filed a written request therefor. The local agency may recover from the petitioner its actual costs for transcribing or otherwise preparing the record.� There is no statute o...

Excerpt: ...ion, irrespective of whether leave to amend is requested or not.� McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304; City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747 Therefore, leave to amend is granted. Plaintiff shall file and serve an amended complaint by September 24, 2020. Defendant�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein for all five matters and complies with Cal...

Excerpt: ...5) 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 of the parties, c...

Excerpt: ...ion, the court notes that CCP section 473 requires a copy of the proposed pleading to be filed with the motion. No such proposed pleading is attached. Plaintiff�s Motion for Judgment on the Pleadings is granted with leave to amend. The original Answer and the First Amended Answer do not set forth any valid legal defenses to a cause of action for ejectment. �Where a demurrer is sustained or a motion for judgment on the pleadings is granted as ...

Excerpt: ...in part. � �[Code of Civil Procedure section 664.6] created a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met.� � Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1429. When enforcing a settlement agreement under section 664.6, the court has the authority to resolve factual disputes relating to the agreement, to interpret the terms of the ...

Excerpt: ...t. Telephonic appearances are required to address Ms. Mueller�s request to appoint a private professional trustee. The court wishes to discuss options: whether Thomas Mueller is willing to continue to act; if Ms. Mueller and Ms. Zahnleuter can put aside their differences to act as co-trustees; or if there are other available trustees, either professional or trustworthy lay persons, who can administer the Trust as provided in the Second Amendmen...

Excerpt: ...lacks personal knowledge); 12 (lacks personal knowledge); 13 (hearsay); 14 (hearsay); 15 (hearsay); 16 (hearsay); 20 (lacks personal knowledge); 26 (requires expert); 40 (requires expert); 48 (requires expert); 49-52 (subsequent remedial measures); 53 (legal conclusion); 54 (hearsay). The remaining objections are overruled. Plaintiff�s Objections to Evidence filed July 23, 2020, are overruled in their entirety. Standard of Review The function o...

Excerpt: ... summary judgment were originally set for hearing on April 17, 2020. Plaintiff�s oppositions were due on April 3, 2020. Although the motions were continued by the court due to the pandemic, the time for filing an opposition was not extended. The present applications were filed over ten weeks after the oppositions were due. Secondly, Plaintiff argues that she needs responses to her discovery requests. However, her discovery motions were denied o...

Excerpt: ...er or not the river creates a land-locked environment is also a factual question to be determined at trial. Accordingly, the demurrer is overruled. Defendants Jimenez, Ruiz, Dismukes Family Trust, Peck Trust, Digiordano Family Trust, and Ward�s Demurrer to the Second Amended Complaint is overruled in part and sustained with leave to amend in part. As to the arguments relating to innocence and the lack of an actual controversy, the demurrer is o...

Excerpt: ...c fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award�.� Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, ...

Excerpt: ...at issue requires that appointment and submission of the dispute to a neutral third party is required. However, Cross- Complainants have failed to allege completion or excuse relating to this requirement. While it is correct that the cross- complaint states �The Herrlingers performed all of their duties under the contract,� the Request for Judicial Notice demonstrates that this Court�s prior ruling addressed the failure of the condition pre...

Excerpt: ... Amend Complaint is granted. �The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond.� Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258. �Upon a motion for summary judgment, amendments to the pleadings are readily allowed.� Id., citing Kirby v. Albert D. Seeno Construction Co. (1992) 1...

Excerpt: ...] the party with a net monetary recovery, [ii.] a defendant in whose favor a dismissal is entered, [iii.] a defendant where neither plaintiff nor defendant obtains any relief, and [iv.] a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the �prevailing party� shall be as determined by the court, and under th...

Excerpt: ...aise at his administrative hearing in which to reserve for a civil lawsuit, if all speak to the same issue-- which in this case was the wrongfulness of the discharge..� Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 889. These claims challenge the termination process itself. Therefore, they must be addressed in a mandamus action. As the first cause of action, the demurrer is overruled. The claim does not challenge the terminat...

Excerpt: ...nied. �If [Plaintiff] wished to rely upon unpleaded theories to defeat summary judgment, he was required to move to amend the complaint prior to the hearing on [Defendant�s] motion.� Leibert v. Transworld Systems (1995) 32 Cal.App.4th 1693, 1699, citing Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18. Here, Plaintiffs were on notice that their complaints were insufficiently pled for a cause of action under Govern...

Excerpt: ...i & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) �7:292. A motion for judgment on the pleadings involves the same type of procedures that apply to a general demurrer. Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App. 4th 1056, 1061; Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1064. In considering a motion for judgment on the pleadings, court...

Excerpt: ...whom the statement was made or who overheard the statement. Without these more particular facts, the court cannot determine the statements were made in the course of employment or the defendant ratified the conduct so that defendant Caltrans would be vicariously liable. Any amended complaint must be served and filed by August 3, 2020. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and comp...

Excerpt: ...caption of the motion is hereby stricken. Second, the motion is untimely. CCP section 1008 requires a motion for reconsideration to be filed within 10 days. Here, the order was entered into and notice of such order was given on January 31. The present motion was not filed until February 27. Thus, it was not timely filed. Third, on the merits, "[a] motion for reconsideration may only be brought if the party moving for reconsideration can offer 'ne...

Excerpt: ...t (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 of the part...

Excerpt: ... 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 the liability or defense is based. CCP � 425.16(b)(2). Only evidence admissible at trial m...

Excerpt: ...ions 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 (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley ...

Excerpt: ... 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 the liability or defense is based. CCP � 425.16(b)(2). Only evidence admissible at trial m...

Excerpt: ...fourth causes of action against Defendant Nye Petros, but denied as to Defendant Kacey Petros. Defendants Petros� Motion for Summary Judgment is denied. The alternative motion for summary adjudication is likewise denied. Defendant Fraser�s Motion for Summary Judgment is denied. The motion for summary adjudication is likewise denied. Requests for Judicial Notice Plaintiff�s Request for Judicial Notice filed on November 7, 2019, is granted in...

Excerpt: ...fourth causes of action against Defendant Nye Petros, but denied as to Defendant Kacey Petros. Defendants Petros� Motion for Summary Judgment is denied. The alternative motion for summary adjudication is likewise denied. Defendant Fraser�s Motion for Summary Judgment is denied. The motion for summary adjudication is likewise denied. Requests for Judicial Notice Plaintiff�s Request for Judicial Notice filed on November 7, 2019, is granted in...

Excerpt: ...for summary judgment was heard. Defendant was previously granted leave to amend its Answer to clearly address this issue. Plaintiff merely seeks clarification of the complaint to address this issue directly. Therefore, the motion for leave to amend the complaint is granted. The proposed Amended Complaint shall be filed and served by June 22, 2020. Defendant is granted leave to file a second motion for summary adjudication of the fifth cause of ac...

Excerpt: ...tionally, Plaintiff must allege a proximate causal connection with Plaintiffs� damages. Additionally, the demurrer to the cause of action for loss of consortium is sustained without leave to amend. Plaintiff failed to obtain leave of court to add such claim. Any amended complaint shall be served and filed by June 15, 2020. The court notes that no further amendments will be permitted. The Court continues to encourage all appearances to be conduc...

Excerpt: ...rther Responses to Special Interrogatories is dropped as moot. Supplemental responsive documents and a privilege log have been served since the original motion was filed. As such, the present request is moot. If Plaintiffs determine that the additional documents produced are inadequate, Plaintiffs may timely file a new motion to compel further responses, with a new separate statement demonstrating what documents were served and how such responses...

Excerpt: ...irst Amended Complaint does not allege that Defendant is not a hospital. Additionally, Defendant did not provide any documents that are judicially noticeable to establish that it is not hospital so as to preclude liability. Because this court is limited to its review of the face of the pleading, the court cannot determine as a matter of law that Defendant is not a hospital. Therefore, the Demurrer is overruled. Any Answer must be served and filed...

Excerpt: ...nts, and bank statements. Plaintiff has failed to produce any such documents or state that any such documents do not exist. As to number 30, Plaintiff must state what documents, if any, she submitted to Medi- Cal. If no other documents aside from profit and loss statements were ever provided to Medi-Cal, Plaintiff must so state. Plaintiff shall provide such responses and responsive documents, without objections, by May 4, 2020. Defendants are awa...

Excerpt: ...ep 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 289, 2...

Excerpt: ...001) 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 (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax ...

Excerpt: ...redge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047. �If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.� Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596 (if claims were pled before obtaining justifying support, via investigating and discovery, complainants could be exposed to liability for malicious prosecution). Here, Plaintiff alleges that ...

Excerpt: ...d. Plaintiff has alleged he was entitled to money. Whether he was entitled to such money, whether it be from gross receipts or net profits, is a factual question, inappropriate for demurrer. As to the third cause of action for conspiracy, the demurrer is overruled. The Second Amended Complaint alleges that these defendants conspired to damage Plaintiff by depriving him of the benefits he would receive under these contracts. There is no requiremen...

Excerpt: ...permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken.�). Thus, the claim is not adequately pled. As leave to amend was previously granted and Plaintiff has failed to remedy the issue set forth above, leave to amend is denied. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies w...

Excerpt: ...r 30, 2018, defendant would pay Plaintiffs $1,000 per day until the personal property was removed. That date was extended by a judicial officer through January 9, 2019, due to a showing of due diligence by Defendant as well as weather delays. No further extensions of the deadline were granted. The settlement agreement, including the $1,000 payment provision, shall be enforced. It is undisputed that the rock wall was not removed until December 15,...

Excerpt: ...t allege: 1. The conduct was committed by a person acting under color of state law; and 2. it deprived a person of rights, privileges, or immunities secured by the Constitution or other law of the United States. Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062. Here, Plaintiff has alleged in paragraphs 22-25 that plaintiff�s rights were violated by the conduct of the social worker who acted under color of law. The cause of acti...

Excerpt: ... that such a stay is discretionary, not mandatory. A notice of appeal does not alone stay judgment or order enforcement where they award money, and a bond or undertaking is required. Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1429. Here, Defendants seek additional time to perfect its appeal and post an undertaking. However, the court finds that Defendant has had sufficient time to analyze whether to appeal and to arrange for financing. The ...

Excerpt: ...nforcement under CCP section 664.6, no case number is even set forth. The proper method for enforcement of this document is a complaint for breach of contract. The present motion is procedurally defective. On the merits, however, the court notes that a condition precedent to the filing of any action is that the parties shall submit any disagreement to a neutral third party. The agreement further provides that if the parties cannot agree upon a ne...

Excerpt: ...zing 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 (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; H...

Excerpt: ... produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence." Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192. In this case, plaintiff and defendants Michael and Renate DeMartini submitted briefing in connection with plaintiff�s 18 September 2019 motion. All parties presented oral argumen...

Excerpt: ...zing 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 (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; H...

Excerpt: ...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 (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax...

Excerpt: ...y the stipulation filed 12/3/19, and whether the motion is now moot. Defendants Bares� Application for Good Faith Settlement is denied without prejudice. Defendant County�s Motion Contesting Good Faith Settlement is granted. Where a good-faith settlement is unopposed, counsel�s bare-bones declaration is sufficient for a good-faith determination. City of Grand Terrace v. Sup. Ct. (1987) 192 Cal.App.3d 1251, 1261; Weil & Brown, Civ. Pro. Befo...

Excerpt: .... Govt Code � 815. Thirdly, the claims fail to state facts sufficient to constitute a cause of action. The claims are also uncertain, ambiguous and unintelligible. Defendant County�s Motion to Strike Punitive Damages is granted. Punitive damages are not permissible against governmental agencies. Govt Code � 818. �Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leav...

Excerpt: ...it' basis." Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal. App. 4th 1105, 1127. Accord Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1292. In the present case, although Plaintiff has alleged the agreement is procedurally unconscionable because it was presented on a take-it-or-leave-it basis, the court finds such agreement is not unenforceable. Moreover, Plaintiff has failed to demonstrate any substantive unc...

Excerpt: ...ff will suffer if possession is denied or limited outweighs the hardship of the defendant or occupant. This order is made pursuant to CCP �1255.410. The property to be acquired is described as set forth in the Complaint. The date the condemnor is authorized to take possession of the property is effective on January 17, 2020. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies wit...

Excerpt: ...arch warrant, the demurrer is overruled. Plaintiff alleges that there were purposeful omissions from the search warrant that would affect the issuance of the search warrant. Additionally, Plaintiff has alleged such omissions were malicious. As such, these claims are sufficiently pled. As to the argument that the Third Amended Complaint fails because there is no cite to any statutory authority of the claims and immunities apply, the demurrer is ov...

Excerpt: ...ourt, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.� CCP �1048(a). The Sonoma County action is a class action relating to labor code violations. The present case alleges a breach of contract as well as claims for racketeering and interference with contr...

Excerpt: ...gh degree of probability an injury would occur, or oppression and malice, including intentional or conscious wrongdoing of a despicable or injurious nature. Because such facts are not set forth, there is no basis, as currently pled, to support punitive damages. Any amended complaint must be served and filed by January 13, 2020. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies wi...

Excerpt: ...reement were. The Second Amended Complaint states only that Plaintiff and Defendant �agreed to purchase a house together.� Plaintiff does not state what ownership interests each party were alleged to have or what duties or responsibilities each party would have under said agreement. All essential terms of the agreement must be explicitly set forth. The demurrer on the grounds that the cause of action is barred by the statute of limitations is...

Excerpt: ...laintiff must state all material terms of the contract: who the parties were to the contract, the date the contract was entered into, the performance required of each party, whether the contract was oral or written, what conduct constituted breach, and the date of the purported breach. Thirdly, as to the second cause of action for quantum meruit, Plaintiff must allege the services rendered, the dates the services were rendered, the agreement for ...

Excerpt: ...w The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and 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: (1) identify the issues framed by the pleadings to be addressed; (2) determine ...

Excerpt: ...field 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 (2008) 166 Cal.App.4th 1177, 1182-83;...

Excerpt: ...urt of competent jurisdiction�� Tenor Group v. City of Gelndale (1993) 14 Cal.App.4th 154. California law defines a cause of action �by focusing on the primary right at stake: if two actions involve the same injury to the plaintiff in the same wrong by the defendant than the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and or adds new facts sup...

Excerpt: ...t or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney�s fees. (b) The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission soug...

Excerpt: ...f the other named six defendants. On the merits, Defendant contends that the complaint is barred by the statute of limitations in CCP �366.2. Defendant asserts that decedent died on 5/21/18. This fact is outside the pleadings and cannot be considered in connection with the demurrer. Nonetheless, the court notes that the complaint was filed within one year of the purported date of death. On this record, CCP �366.2 does not bar the filing of th...

Excerpt: ...ading or claim 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 t...

Excerpt: ...r was set for trial prior to transfer. The rules related to compulsory cross-complaints and permissive cross- complaints apply to cases in the probate department and civil department. See C.C.P. sections 426.30 and 428.50; Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1088 (�The general rules of the Code of Civil Procedure do not apply when the Probate Code provides special rules. In the absence of a special rule, the general rules of ...

Excerpt: ...int is adequate. To state a claim for a purported dangerous condition of public property under Government Code section 835, a plaintiff must allege: �the following elements: (1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in cre...

Excerpt: ...granting); and (2) a reasonable probability that plaintiffs will prevail on the merits. Baypoint Mortg. Corp. v. Crest Premium Real Estate 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. Here, Plaintiffs have not demonstrated a probability that plainti...

Excerpt: ...ent in and as part of the transaction of such business�� This statue confirms that it is the principal, not to the agent, who is responsible and who has the duty to third persons. The law is clear that in California, an agent is not liable to third persons for allegedly nonfeasance. Fisher v. General Petroleum (1954) 123 Cal.App.2d 770. Plaintiff has alleged that defendant Ohran is an agent of defendants Powdr and Boreal. As such, she has no ...

Excerpt: ...he event the failure to add such cause of action and the facts to support it were erroneously not included in the drafting of the first amended cross-complaint. The first cause of action for violation of Civil Code section 1940.2 is also stricken with leave to amend. Cross- complainant must clearly allege what conduct by the landlord which is specified under section 1940.2 has been done. As currently pled, cross-complainant only references Penal ...

Excerpt: ...r the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney�s fees. (b) The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought ...

Excerpt: ...eds the scope of the traditional role of a lender of money. Nymark v. Heart Fed. Savings & Loan (1991) 231 Cal.App.3d 1089, 1095. In order to determine whether a duty of care exists, courts balance the Biakanja factors, �among which are [ (1) ] the extent to which the transaction was intended to affect the plaintiff, [ (2) ] the foreseeability of harm to him, [ (3) ] the degree of certainty that the plaintiff suffered injury, [ (4) ] the closen...

Excerpt: ...r 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, material ...

Excerpt: ...in 10 days of the order after hearing. Here, the order after hearing was served on June 6, 2019, and the present motion was not filed until July 29, 2019. The requested relief is untimely. Further, the court notes that CCP �663 does not apply to the present case, as there was no incorrect or erroneous legal basis for the decision. Additionally, to the extent Petitioner relies on CCP �473, Petitioner has failed to demonstrate mistake, inadvert...

Excerpt: ...26, 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 (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Ca...

Excerpt: ...laint, ex parte application, declarations in support, TRO, or the Motion for Permanent Injunction. The elements generally applicable to a request for injunctive relief are as follows: (1) a balancing of the hardships (i.e., plaintiffs are likely to suffer more injury from denying of the injunction than defendants are likely to suffer from granting); and (2) a reasonable probability that plaintiffs will prevail on the merits. Baypoint Mortg. Corp....

Excerpt: ...pproached the Plaintiffs� vehicle in a very threatening manner, pounding and screaming while calling the two Plaintiff women expletives until a good Samaritan from Cal-Trans interceded.� These statements, fairly construed, set forth facts sufficient to state a cause of action for intentional tort. Defendant�s Motion to Strike the �wrongful death� box on page 1 of the complaint is sustained without leave to amend based on Plaintiff�s c...

Excerpt: ...ode section 815. As to the second cause of action (premises liability), the motion for judgment on the pleadings is granted. The counts for negligence and willful failure to warn are not permitted theories of recovery under the Government Code. The count for dangerous condition of public property fails to clearly allege sufficient facts to state a claim for relief under Government Code section 835. �Unless the complaint shows on its face that i...

Excerpt: ...es of action or issues �.� The court has the power to completely sever actions where the interests of justice require such action. City of Sacramento v. Superior Court (1962) 205 Cal.App.2d 398, 403. In the present case, there are 18 causes of action in the first amended complaint. Thirteen of the causes of action are filed by plaintiff�s Zolldan alone. Two causes of action are filed by Kemper alone. Only three causes of action are common t...

Excerpt: ...ode section 815. As to the second cause of action (premises liability), the motion for judgment on the pleadings is granted. The counts for negligence and willful failure to warn are not permitted theories of recovery under the Government Code. The count for dangerous condition of public property fails to clearly allege sufficient facts to state a claim for relief under Government Code section 835. �Unless the complaint shows on its face that i...

Excerpt: ...tutory language of CCP �430.40 is permissive, not mandatory. Thus, the court will address the merits of the demurrer. As to the first cause of action for conversion, the demurrer is sustained with leave to amend. As set forth in PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395, 397: money cannot be the subject of a cause of action for conversion unless there is an identifiable sum, and ...

Excerpt: ...rounds quoted below: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such ...

Excerpt: ... of amendment.� Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852. The first cause of action for general negligence does not set forth a clear statutory basis. Thus, as currently pled, the claim appears to be barred by Govt. Code �815(a) as no statutory liability is set forth. The opposition plausibly argues that liability is based on Govt. Code �835. Thus, leave to amend is granted to clarify the complaint. Any amend...

Excerpt: ...ne, in advance of his trip. See CCP �473. The prevailing party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order. This is the Court�s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court�s law and motion secretary at (530) 265-1380...

Excerpt: ...action of premises located in Nevada County. As such, this court does have subject matter jurisdiction over property located within the county. Therefore, the petition for writ of mandate is denied. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order. This is the Court�s tentative r...

Excerpt: ...due diligence. The only declaration in support of the motion provides that the process was unable to serve the Defendant at two locations. That declaration does not demonstrate the dates, times, or number of attempts made to serve. In addition, while the declaration also provides that two skip traces were done, the results of such skip traces were not provided to the court to show that Defendant is unable to be located. Plaintiff must demonstrate...

Excerpt: ...phs 8 and 9 of the Judgment .�� The stipulation and order further states, at paragraph 3, that: �The parties agree not to contest any application that is consistent with this stipulation and the parties waive any rights of appeal with respect to any order or other determination of the court that is made pursuant to paragraph 2 . . . .� There was no appeal from the judgment or amended judgment, a modification application was filed by plain...

Excerpt: ...ce does not state whom was served with the motion. Secondly, "[a] motion for reconsideration may only be brought if the party moving for reconsideration can offer 'new or different facts, circumstances, or law' which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence." Forrest v. State Of Cal. Dep...

Excerpt: ...n agreement. In addition, Plaintiff must allege facts to demonstrate that the claim is not barred by the applicable statutes of limitation. Any amended complaint shall be served and filed by July 29, 2019. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order. This is the Court�s tent...

Excerpt: ...ers are denied. Code of Civil Procedure Section 657 permits a full or partial new trial on various grounds quoted below: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a findi...

Excerpt: ...ence." Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP �1008 tightened diligence requirements). Here, Petitioners have failed to demonstrate that the purported new or different facts related to the adoption of the Code of Conduct could not, with reasonable diligence, have been discovered and produced at the ti...

Excerpt: ... June 12, 2019 (ten days after May 28, with five additional days for mail service). The instant motion was not filed until June 14, 2019. Thirdly, while Plaintiff�s counsel alleges attorney mistake, Plaintiff�s counsel does not rely on CCP �473. Rather, the motion is based solely on CCP �1008. "A motion for reconsideration [under s CCP �1008] may only be brought if the party moving for reconsideration can offer 'new or different...

Excerpt: ...tion is denied. As for clarification, this court�s 5-8-19 was quite clear. However, to be more expansive: No funds that are located in Mr. Bell�s client trust account shall be distributed until the property at Little Valley Road is also sold and the court is made aware of all funds that are to be distributed. If there are any business loans that are recorded against the real property at Little Valley Road, such loans shall be paid from escrow...

Excerpt: .... 6), and 9 (Ex. 13) are also sustained: these exhibits are irrelevant in the context of this motion. Defendant�s Objection 11 (Ex. 16) is sustained: this exhibit lacks authentication and is irrelevant. Defendant�s remaining objections are moot given the court�s ruling regarding liability, below. The court declines to admit and consider Exhibit 1 attached to the 12 June 2019 Decl. of Plaintiff as part of Plaintiff�s 12 June 2019 Response ...

Excerpt: ...A]s a general rule, attorney fees are not recoverable as costs unless they are authorized by statute or agreement.� People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal. App. 4th 424, 429. Plaintiff must set forth either a contractual basis or statutory basis for the requested fees. Any amended complaint must be served and filed by July 15, 2019. Moving party�s attorney is to submit a formal order that sets ...

Excerpt: ...Defendant�s Objection 16 is sustained: this exhibit lacks authentication and is irrelevant. Defendant�s remaining objections are moot given the court�s ruling regarding liability, below. The court declines to admit and consider Exhibit 1 attached to the 12 June 2019 Decl. of Plaintiff as part of Plaintiff�s 12 June 2019 response to Defendant�s Notice of Errata. This photograph is vague as to time and lacks authentication. Standard of Re...

Excerpt: ...nt to produce documents should resolve this issue. 2. Denied. The stipulated protective order and defendants� agreement to produce documents should resolve this issue. 3. Granted. Defendants shall provide all communications with DC Tech�s accountant(s) within their possession. The production of the entity QuickBooks will not suffice to satisfy this request. 4. Granted in part. Defendants have stated that no such documents exist, except report...

Excerpt: ...money judgment for damages. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3. Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her ex...

Excerpt: ... Premium Real Estate 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 r...

Excerpt: ...scovery-order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules. Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516. Here, Plaintiffs have willfully failed to obey a court order requiring responses to discovery requests. Thus, Plaintiffs� Complaint filed 8/16/18 and Cross-Defendants� Answer to the Cross-Complaint filed 2/4/19 are hereby stricken. Cross-Complai...

Excerpt: ...nt and admissible in evidence in the case and which cannot with reasonable convenience be viewed in the courtroom. (b) On such occasion, the entire court, including the judge, jury, if any, court reporter, if any, and any necessary officers, shall proceed to the place, property, object, demonstration, or experiment to be viewed. The court shall be in session throughout the view. At the view, the court may permit testimony of witnesses. The procee...

Excerpt: ...ch a ruling. As such, the time in which this court must rule expires on June 23, 2019. Code of Civil Procedure Section 657 permits a full or partial new trial on various grounds quoted below: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. 2. Misconduct of the jury; and whenever any one or more of the jurors have ...

Excerpt: ... (2005) 131 Cal. App. 4th 802, 823. Additionally, as stated in Ferris v. Gatke Corp. (2003) 107 Cal. App. 4th 1211, 1225, each individual must owe a legal duty to plaintiff. Here, Plaintiff has failed to clearly state what duty is owed by these moving defendants to Plaintiff. Plaintiff must further state what the underlying tort is as it relates to these moving defendants. Defendants RF Management and Gill�s Motion to Strike Portions of the Fir...

Excerpt: ... any court to compel the specific performance of an agreement, in case of part performance thereof.�" Sutton v. Warner (1993) 12 Cal. App. 4th 415, 421 (quoting CCP �1972(a)). �[W]here assertion of the statute of frauds would cause unconscionable injury, part performance allows specific enforcement of a contract that lacks the requisite writing.� In re Marriage of Benson (2005) 36 Cal. 4th 1096, 1108. Here, Plaintiff has alleged perfo...

Excerpt: ...k performed and hourly rates are reasonable. However, the incentives of $350 to each named Plaintiff are denied. No such incentives are included in the set forth in the settlement agreement. Additionally, the expert fees of $12,811.25 are denied. Expert fees were not specifically set forth in the settlement agreement either. While �costs� were not defined, the court relies on CCP �1033.5(b)(1). Angela L. Bradrick, research attorney for the ...