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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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