Excerpt: ...eral 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 misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the tri...

Excerpt: ...�Alternatively, the party may affirm the contract, treating it as repudiated, and recover damages for breach of contract . . . .� Id. �The court does not rescind contracts but only affords relief based on a party's rescission. Both the grounds for rescission and the means by which parties may rescind their contract are governed by statute. � Id. �The steps to rescind a contract are set forth in section 1691[.] Id. The statutory grounds fo...

Excerpt: ...e matter proceed, Plaintiff�s unopposed Motion for Judgment on the Pleadings is granted. In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations, assumed to be true and liberally construed, are sufficient to constitute a cause of action. Stone Street Capital, LLC v. Cal. State Lottery Com'n (2008) 165 Cal.App.4th 109, 116; Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal. App. 4th 446, 452-5...

Excerpt: ...ute is permissive, the court determines that an order allowing attorney�s fees and costs is appropriate for this case. �The determination of what constitutes a reasonable fee generally �begins with the �lodestar,� i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on facto...

Excerpt: ...ries: 2, 4, 5, 6, 7, 8 and specifically respond to all subparts for all interrogatories. Petitioners are awarded sanctions against Glen Van Dyke in the amount of $1,560, which represents 5 hours at $300.00 per hour and the amount of the filing fee. (2) Petitioners� Motion to Compel Van Dyke Law Group�s Responses Petitioner�s Motion to Compel Van Dyke Law Group�s Responses to Post-Judgment Discovery is granted in part. VDLG shall provide f...

Excerpt: ...ep analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 28...

Excerpt: ...erma v. County of Orange (2004) 120 Cal. App. 4th 709, 715; Frazee v. Seely (2002) 95 Cal. App. 4th 627, 635 (�Because the Legislature has provided for the fairly lenient granting of continuances to oppose summary judgment motions, and the premature grant of summary judgment may infringe upon the right to a jury trial, under these facts the court abused its discretion by failing to grant the request.�) In the present case, attorney Paul has p...

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: ...mental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.� Id. �Although in extreme cases a court has the authority to order a terminating sanction as a first measure . . . , a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ...

Excerpt: ... fees to the prevailing party. �The determination of what constitutes a reasonable fee generally �begins with the �lodestar,� i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic 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...

Excerpt: ...pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., �� 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint [or answer], as it stands, unconnected with extraneous matters, states a cause of action [or defense].'� Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. Accord McKenney...

Excerpt: ...hat the claims are covered within the scope of such agreement. Defendant has asserted his right to arbitration and has provided this court with a declaration in support which attaches the arbitration agreement at issue. Thus, the motion is granted. This case is stayed pending arbitration. The currently set trial date is vacated. A case management conference is set for 3/23/20 at 9:00 a.m. in Dept. 6 for status of arbitration. Moving party is to s...

Excerpt: ...of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or 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 to the fifth cause of action �pursuant to section 815.2 of the Government Code, the law was settled by Van Kempen v. Hayward Area Park etc...

Excerpt: ...bar to claims re express indemnity agreements); Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2010) ��12:910 and 12:925. Judges� have limited discretion in ruling upon a motion for good faith settlement, and the rulings must be made �in view of the equitable goals of the statute, in conformity with the spirit of the law and in a manner that serves the interests of justice�, and must serve the goals of �encour...

Excerpt: ...continuing or recurring obligation: �When an obligation or liability arises on a recurring basis, a cause of action accrues each time a wrongful act occurs, triggering a new limitations period.� (Hogar Dulce Hogar v. Community Development Commission (2003) 110 Cal.App.4th 1288, 1295, 2 Cal.Rptr.3d 497.) Because each new breach of such an obligation provides all the elements of a claim�wrongdoing, harm, and causation (Pooshs v. Philip Morris...

Excerpt: ...�� Code Civ. Proc., � 438. �Under general rules of civil procedure, an answer must contain �[t]he general or specific denial of the material allegations of the complaint controverted by the defendant� and �[a] statement of any new matter constituting a defense.� (Code Civ. Proc., � 431.30, subd. (b)(1) & (2).)� Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 812. � � The phrase �new matter� refers to ...

Excerpt: ...s. Defendants did not assert arbitration as a defense in their May 2019 answer; defense counsel has made statements as recent as 4 September 2019 about their desire to litigate the matter through trial; defendants delayed their demand for arbitration for months after plaintiff�s March 2019 complaint and defendants� May 2019 answer without any persuasive justification as to why the demand was not made earlier; defendants have fully participate...

Excerpt: ... a wrongful use or with an intent to defraud, or both.� Wood v. Santa Monica Escrow Co. (2007) 151 Cal. App. 4th 1186, 1189. Plaintiff has not clearly set forth these required elements. While it appears that Plaintiff may be contending that Defendant wrongfully took real property belonging to decedent, there are no clear allegations as to what real property was taken or how there was a wrongful use or intent to defraud. Plaintiff must clearly s...

Excerpt: ...)). It may be an abuse of discretion to grant relief under Code of Civil Procedure Section 473 where there is unexplained delay of over three months before moving for relief. Huh v. Wang (2008) 158 Cal.App.4th 1406, 1421 n.4. Here, default was entered in this case on December 5, 2018, and the present motion was not filed until September 17, 2019. The six month requirement was not met. As such, the motion is untimely. Additionally, on the merits, ...

Excerpt: ...enerally Cal. Practice Guide: A.D.R. (The Rutter Group 2012) �5:83-5:84. Here, the court finds the arbitration agreement to be both procedurally and substantively conscionable. As to Plaintiff�s procedural unconscionability arguments, "a compulsory predispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a 'take it or leave it' basis." Lagatree v. Luce, Forward, Hami...

Excerpt: ...how 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 apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party showed facts justifying a judgment in movant's favor; and (3) determine whether ...

Excerpt: ... is a permissive cross-complaint, governed by Code of Civil Procedure section 428.50(c) which states: �A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.�� Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864. It is also governed by Code of Civil Procedure sect...

Excerpt: ... hostile to the true owner; d. under claim of right; and e. for the statutory period of five years. Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045. Here, Plaintiff has adequately alleged each and every element. The use alleged is �parking.� Nowhere in the first amended complaint does Plaintiff seek ownership or exclusive rights, which would be a claim for adverse possession. Plaintiff seeks only a non-exclusive prescriptive ease...

Excerpt: .... Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045. Here, Plaintiff has adequately alleged each and every element. The use alleged is �parking.� Nowhere in the first amended complaint does Plaintiff seek ownership or exclusive rights, which would be a claim for adverse possession. Here, however, Plaintiff seeks only a non-exclusive prescriptive easement for ingress, egress, and parking. As such, the first amended complaint is adeq...

Excerpt: ...ng and expensive processes.� Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1298. On a motion to enforce a settlement under section 664.6, a trial court has jurisdiction �to provide any appropriate equitable remedy.� Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050, 1061�1062. �A party to a contract has two different remedies when it has been injured by a breach of contract . . . and lacks the...

Excerpt: ...est for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavail...

Excerpt: .... The declaration for the additional fees is not made on personal knowledge. Thus, the court limits the attorney�s fees award to only those incurred by attorney Baillio personally. The fees and costs awarded are $900.00. 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 t...

Excerpt: ... to the true owner; d. under claim of right; and e. for the statutory period of five years. Otay Water Dist. v. Beckwith (1991) 1 Cal.App.4th 1041, 1045. Here, Plaintiff has adequately alleged each and every element. The use alleged is �parking.� Nowhere in the first amended complaint does Plaintiff seek ownership or exclusive rights, which would be a claim for adverse possession. Here, however, Plaintiff seeks only a non-exclusive prescripti...

Excerpt: ...h 814, 823. CRC 3.1332 provides, Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailabili...

Excerpt: ...iness and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed written consent. �After termination of a lawyer-client relationship, the lawyer owes two duties to a former client. The lawyer may not (i) do anything that will injuriously affect the former client in any matter in which the lawyer represented the former client, or (ii) at any time use against...

Excerpt: ...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 v. Oakshade Town Center (2005) 135 Cal. A...

Excerpt: ... allowing leave to amend. McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2010), �7:130 (citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Because defendant has failed to show the court that the pleading can be amended successfully, leave to amend is denied. Plaintiff is entitled to judgment of $12,528.61 in principal, plus costs and attorney�s ...

Excerpt: ...saction 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 individual liability as an age...

Excerpt: ...rial (The Rutter Group 2012) �8:1203. �A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions�.: (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.� Biles v. Exxon Mobil Corp. (2004) 124 Cal. App. 4th 1315, 1327. Here, Defendant has ignored the court Order requiring him to...

Excerpt: ... prima facie showing that the attacked claims arise from a protected activity, including defendants� right of petition, or free speech, under a constitution, in connection with issues of public interest. Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal. App. 4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 671; Quinlon Ent. v. Consumer Caus...

Excerpt: ...rial 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 contract, among others. The court finds that...

Excerpt: ...aint in a new probate case file. But, the court finds that such new pleading shall relate back to the filing of the original complaint in this action, on December 19, 2018. As to the first cause of action for Civil Code �3412, the demurrer is sustained with leave to amend. The complaint fails to identify the written instruments, the parties to that instrument, the basis for cancellation of the instrument, and whether this is a testamentary inst...

Excerpt: ...dard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony �, unless the conduct required by the particular circumstances is within the common knowledge of the layman.��). Here, Defendant has provided a declaration from Dr. Joseph Scherger which states that Defendant Nguyen met the ...

Excerpt: ... her. As to the argument regarding materiality, such issue is not proper at the pleading stage. As to the second cause of action for negligence, the demurrer is sustained with leave to amend. A financial institution generally has no duty of care to a borrower unless the institution exceeds the scope of the traditional role of a lender of money. Nymark v. Heart Fed. Savings & Loan (1991) 231 Cal.App.3d 1089, 1095. Plaintiff has not alleged facts d...

Excerpt: ...mary 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 v. Oaksh...

Excerpt: ...tep 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 2...

Excerpt: ... Amended Complaint which was filed on April 22, 2019, is verified. Thus, this argument fails. Additionally, the Answer contains more than a general denial, as it includes specific denials to the allegations and sets forth ten affirmative defenses. Thus, the Answer does constitute a defense to the action. The demurrer is overruled. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies...

Excerpt: ...t 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) 582-7835 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative r...

Excerpt: ...under this Note is not paid when due, the Borrower promises to pay all costs of collection, including reasonable attorney fees, whether or not a lawsuit is commenced as part of the collection process.� Thus, attorney�s fees should properly be awarded as it relates to this single cause of action. �The determination of what constitutes a reasonable fee generally �begins with the �lodestar,� i.e., the number of hours reasonably expended ...

Excerpt: ... The complaint states facts sufficient to constitute a cause of action against the defendant and that the answer does not state facts sufficient to constitute a defense. The failure to deny a material allegation necessarily results in an admission. Hennefer v. Butcher (1986) 182 Cal.App.3d 492, 504. �In the case of . . . a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plai...

Excerpt: ...pprove a loan modification, to offer foreclosure alternatives, or to handle loans so as to prevent foreclosure. Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 68. Here, Plaintiffs have failed to demonstrate a duty outside the traditional role of a lender of money. The Court finds that the case of Rossetta v. CitiMortgage (2017) 18 Cal.App.5th 628 to be inapposite. In Rossetta, the defendant lender voluntarily undertook to ren...

Excerpt: ...fraud relating, in part, to the purported invalidity of the 2010 assignment against Defendants. See Nov. 2011 Complaint paras. 57-59. In the present case, Plaintiffs have again asserted a claim for negligence against Defendants based, in part, on the same basic allegations. See Feb. 2018 First Amended Complaint Paras. 13, 15, 17, 23, 28, 29, 30, 41. The issues related to the 2010 assignment were adjudicated by the trial court in NEV78020. See 7 M...

Excerpt: ...act and breach of the fiduciary duty. �A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom.� Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031 (quotations omitted). �It is, of course, basic hornbook law that the existence of a contract is a necessary element ...

Excerpt: ...ary 2019 and cannot conclude that plaintiff�s 22 March 2019 responses were untimely. Secondly, even if Plaintiff failed to serve timely responses, pursuant to CCP �2033.280, the Court relieves the Plaintiff of any waiver because responses were served and because of demonstrated excusable neglect. The court also denies Defendant�s request for sanctions. Moving party�s attorney is to submit a formal order that sets out verbatim the tentativ...

Excerpt: ...or the agent for service, it appears that other means of lawful service upon defendant have not been exhausted, namely, service through the Secretary of State pursuant to CCP section 416.10 and Corporations Code section 1702. See Gibble v. Car-Lene Research, Inc. (App. 1 Dist. 1998) 67 Cal.App.4th 295, 302-303. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rul...

Excerpt: ...Before Trial (The Rutter Group 2012) �8:1321. Here, as to each of these responses, Plaintiff has stated that, despite a reasonable inquiry, he is unable to respond. As a statement relating to the inability to admit or deny has been set forth, the responses to these Requests and Interrogatories are sufficient. The motion is granted as to Form Interrogatory 17.1. Plaintiff has again stated that, despite a reasonable inquiry, he is unable to respo...

Excerpt: ...intiffs� objections to the Declaration of Herb Whitaker are sustained as to #9, specifically as to the summary of Chamberlin and Leavenworth billings. All other objections are overruled. Secondly, Plaintiffs� request to allow oral argument at this hearing is denied. On the merits, the award of attorneys� fees is mandatory pursuant to CCP �425.16(c). Additionally, attorney�s fees are allowed even if it is a pro bono attorney. See Rosenau...

Excerpt: ...es, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.� Here, the Court finds that judicial economy will be served by ordering a separate trial on the issues of liability and damages. In the court�s estimation, the damages phase will be significantly longer than the liability phase. Further, if liability is decided in favor of Defendant, then the lengthy damages phase will be...

Excerpt: ...ew noticed motion. 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 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) 582-7835 by 4:00 p.m. the court day before...

Excerpt: ... 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. ��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 ...

Excerpt: ...th settlement no bar to claims re express indemnity agreements); Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2010) ��12:910 and 12:925. Judges� have limited discretion in ruling upon a motion for good faith settlement, and the rulings must be made �in view of the equitable goals of the statute, in conformity with the spirit of the law and in a manner that serves the interests of justice�, and must serve the g...

Excerpt: ...116; Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal. App. 4th 446, 452-53. Here, Plaintiff alleges that the property was previously deeded to Elizabeth Petros, was fraudulently conveyed to Nye Petros, and the lien against the subject property should be voided due to the fraudulent conveyance. These fact are set forth in paragraphs 16, 18, and 70-75. Thus, the complaint states sufficient facts to set forth a cause of action for cancellation of writ...

Excerpt: ...rding the payment of the garnished wages to the State, that such misrepresentation was knowingly false, that Defendant intended to induce reliance by Plaintiff, that Plaintiff relied on such statements, and that she was damaged by both her bank account being levied and that the sums withdrawn were neither paid to the State nor returned to Plaintiff. As such, all required elements are pled. Further, Plaintiff has pled with adequate specificity. Sh...

Excerpt: ...in proceedings before courts of record. (Caressa, Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101-1103. Here, the Court properly issued an OSC to Strike the Answer against Defendant and that OSC was properly served by the Plaintiff on December 28, 2018. As this Court has the authority to strike all or part of a pleading �not drawn or filed in conformity with the laws of this state, a court rule, or an or...

Excerpt: ...long with the private investigator�s attempts to locate the defendant, are sufficient to demonstrate reasonable diligence. Therefore, it appears that Defendant cannot be served in another manner. Pursuant to CCP �415.50(b), Plaintiff shall publish in a newspaper in the State of California that is most likely to give actual notice to Defendant. In addition, Plaintiff shall publish in a newspaper in the State of Missouri that is most likely to ...

Excerpt: ... of groundless actions and whose conduct causes serious financial results to the unfortunate objects of his or her attacks and places an unreasonable burden on the courts.� Morton v. Wagner (2007) 156 Cal.App.4th 963, 970- 7. A determination of a vexatious litigant may be based upon a showing that plaintiff, during the preceding seven years, prosecuted five litigations that were finally determined adversely. CCP �391(b)(1); Weil, supra, at �...

Excerpt: ...t shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just�� A party requesting a continuance of a motion for summary judgment in order to obtain discovery, must show the following elements: 1) facts to be obtained are essential for opposing; 2) reason exists for believing that such facts may exist; and 3) reasons why the time is needed. Lerma v. County of Or...

Excerpt: ... Cal.App.4th 1, 5; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) �7:292. Paragraph 10 of the complaint states: �Claimant had to face the trauma of discovering he had lung cancer shortly before the lung was removed on October 3, 2016�� Paragraph 13 of the complaint further states: �Plaintiff was informed that his doctor did not follow protocol of other reasonably acting medical professionals until approximately 60 days aft...

Excerpt: ...kes v. Lucas (1992) 9 Cal.App.4th 365. Secondly, Defendants� request for judicial notice is granted in its entirety. On the merits, pursuant to Civil Code Section 1717, where an agreement provides for a party to recover attorney fees in actions arising out of out of the contract, then the other prevailing parties likewise are entitled to fees. Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal. App. 4th 1174, 1178. Here, Defendants are the...

Excerpt: ...urs reasonably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic 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 cont...

Excerpt: ...h settlement no bar to claims re express indemnity agreements); Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2010) ��12:910 and 12:925. Judges� have limited discretion in ruling upon a motion for good faith settlement, and the rulings must be made �in view of the equitable goals of the statute, in conformity with the spirit of the law and in a manner that serves the interests of justice�, and must serve the go...

Excerpt: ... remedial provisions� . . . are to be �liberally applied to carry out the policy of permitting trial on the merits.� � Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 (citations omitted). �The party seeking relief, however, bears the burden of proof in establishing a right to relief.� Id. (citations omitted). �The burden is a double one: the moving party must show a satisfactory excuse for his default, and he must show di...

Excerpt: ...nc. v. Pac. Healthcare Consultants (2007) 148 Cal. App. 4th 390, 404. Parties failing to serve timely responses to discovery requests waive any objections thereto. Pelton v. Delta Packaging Prods. (2008) 165 Cal.App.4th 1658, 1577 n.13; Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal. App. 4th 390, 404. Here, Defendant properly served the requested discovery, an extension of time was granted to respond, and there...

Excerpt: .... No extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. Thus, these declarations are irrelevant and improperly filed in support of a demurrer and/or motion to strike. Secondly, Plaintiff�s arguments relating to improper meet and confer by Defendant prior to filing the demurrer are well founded. See CCP section 430.41. However, as the demurrer and opposition are fully briefed, and the court is overru...

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. Here, no underlying action has been filed to show that Plaintiff will prevail on the merits. There is nothing to be determined meritorious. While the Court found good cause to grant the TRO witho...

Excerpt: ...f may correct this defect by filing amended Requests for Entry of Default. Thereafter, Plaintiff may simply re- notice the present motion (without the requirement of filing the supporting documents again). 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 tenta...

Excerpt: ...led general rule [is] that extra-record evidence is inadmissible in traditional mandamus actions challenging [incorporated boards�] decisions . . . that general rule does not apply in actions to challenge . . . �informal� actions.� Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 30 (quotations and citations omitted). �[Board] actions that do not involve public hearings . . . are generally considered �informal.� Thus, becau...

Excerpt: ... 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 Cal.App.4th 9...

Excerpt: ...ith Glenshire HOA since November 16, 2003. Nothing therein is proper grounds for the court to self-disqualify from hearing this matter. Defendant�s Demurrer to the Complaint is overruled. As to the first and second causes of action, the court finds that paragraph 9 of the complaint clearly states the statutes alleged to be violated and minimal facts to support such claims. These facts are sufficient to put Defendant on notice as to what it is d...

Excerpt: ...road remedial provisions� . . . are to be �liberally applied to carry out the policy of permitting trial on the merits.� � Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 (citations omitted). �The party seeking relief, however, bears the burden of proof in establishing a right to relief.� Id. (citations omitted). �The burden is a double one: the moving party must show a satisfactory excuse for his default, and he must sho...

Excerpt: ...imant failed to establish the probable validity of a real property claim by a preponderance of the evidence (see �405.32); claimant is secured by an undertaking (see �405.33); and, claimant failed to file an undertaking ordered by the court (see �405.34). Kirkeby v. Sup. Ct. (2004) 33 Cal. 4th 642, 648. When a motion to expunge a lis pendens is filed, the burden is on the opposing party to show that the complaint contains allegations of a r...

Excerpt: ...nably expended multiplied by the reasonable hourly rate�.�� �[T]he lodestar is the basic 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 na...

Excerpt: ...to refuse permission to amend�.�� Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286, 1308. Courts generally do not consider the validity of proposed amendments to a pleading. Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047; Atkinson v. Elk Corp. (2006) 109 Cal. App. 4th 739, 760 (�the better course of action would have been to allow � [plaintiff] to amend the complaint and then let the parties test its legal suf...

Excerpt: ... relates to Defendant Steven Sipe dba Sipes CA, the motion to compel is denied in its entirety. Steven Sipe is a sole proprietor owner. As set forth in Bellis v. United States (1974) 417 US 85, 87-88, the Fifth Amendment privilege �applies to the business records of the sole proprietor or sole practitioner.� There is no legal entity separate from Sipe as an individual. The Fifth Amendment was properly asserted. As the motion relates to Defend...

Excerpt: ...� Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 690. Here, Cross-Complainant has pleaded written contracts according to their legal effect. Among other things, paragraphs 31 ,35, 37 and 38 set forth the exact material terms at issue and allegedly breached. Cross-Defendant has sufficient facts regarding the contract at issue to file an Answer in this action. Thus, any Answer must be served and filed by February 11, 2019. Moving party�...

Excerpt: ...t an issue properly before this court. If Mr. Charles determines that Mr. Pankopf is overpaid by this distribution, Mr. Charles has other legal recourse available to him. Mr. Pankopf 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, yo...

Excerpt: ...f California, answers the unverified complaint was follows:�� Caltrans corrected the error made by Plaintiff at the time of the answer. So, this argument has been waived and corrected. Secondly, as to the cause of action for negligence, the motion for judgment on the pleadings is granted with leave to amend. Plaintiff failed to allege any statute upon which liability is premised, and is thus barred by the Government Claims Act. GC �815. Pla...

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; Hines...

Excerpt: ...e 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 issue of fact. Sun v. City of Oak...

Excerpt: ...radrick, research attorney for the Superior Court of Nevada County, will act as judge pro tem on this law and motion calendar and has issued this tentative ruling. Any party who does not wish to stipulate to her hearing this matter must notify the other parties and then notify the Court's judicial assistant at (530) 265-1380, by 4:00 p.m. on the court day prior to hearing. Since no judge will be available for this law and motion calendar, if ...

Excerpt: ...Plaintiff�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. Angela L. Bradrick, research attorney for the Superior Court of Nevada County, will act as judge pro tem on this law and motion calendar and has issued this tentative ruling. If the parties wish to argue at the hearing, they must notify...

Excerpt: ...ral 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 misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary prudence could not have guarded against. 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the tria...

Excerpt: ...e 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. 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). Disagreement with a ruling is not a new fact that will support the granting o...

Excerpt: ... 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 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentati...

Excerpt: ...ient. Plaintiff is awarded sanctions of $750.00. 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 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) 582-7835 by ...

Excerpt: ...ng 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 by 4:00 p.m. the court day before the hearing. If you do...

Excerpt: ... (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 parti...

Excerpt: ...as (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, courts consider whether prope...

Excerpt: ...s not done on time. However, a substantive opposition was filed, although also untimely. Because Plaintiff obtained additional time to file a substantive opposition by filing it late, the court does not overrule the demurrer based on untimeliness. Next, the Court notes that Footnote 4 of the Second Amended Complaint states that a copy of the Agreement is attached as Exhibit 1. However, there is no Exhibit 1 in the court�s file. Thus, Plaintiff ...

Excerpt: ...n 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. �[I]t is appropriate to deny an injunction where there is no showing of reasonable probability of success, even though the foreclosure wi...

Excerpt: ...ass Valley SH�s principal place of business is in Contra Costa County. Thus, Contra Costa County is the appropriate venue. Defendants� request for attorney�s fees under CCP �396b(b) is denied. As a corporation may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the where the breach occurs, Nevada County may have been an appropriate forum. The court finds no bad faith ...

Excerpt: ...ing 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 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. ...

Excerpt: ...d as it relates to those responses. It was timely filed within 45 days of service of the responses. If discovery was, in fact closed as Plaintiff argues here, then Plaintiff would not have served responses in the first place. The motion is granted as to number 57 and 59. Plaintiff�s responses were non-responsive to the direct question queried. The motion is denied as to the remaining requests. As to those seeking damages, the interrogatories di...

Excerpt: ...�s reliance on CCP �2033.030 does not apply, as the discovery served were Form Interrogatories, not Requests for Admissions. Further, CCP �94 does not apply, as this is not a limited civil case. To the extent Defendant intended to rely on CCP �2030.030, which limits interrogatories to 35 in number, that provision only applies to Special Interrogatories, not Form Interrogatories. While the Court is cognizant of the difficulties a party fac...

Excerpt: ...erein 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 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any a...