Excerpt: [email protected] Motion to Set Aside Admissions Deemed Admitted First, Plaintiff�s request to deny the present motion based on improper service is denied. The proof of service in the court�s file demonstrates that Klaus Kolb personally served Defendant�s counsel on April 16, 2021. As such, service was proper. By this motion, Defendant seeks to set aside the order which deemed admissions admitted which was made back on September 11, 2020. CCP 2...

Excerpt: [email protected] Motion to Set Aside Admissions Deemed Admitted First, Plaintiff�s request to deny the present motion based on improper service is denied. The proof of service in the court�s file demonstrates that Klaus Kolb personally served Defendant�s counsel on April 16, 2021. As such, service was proper. By this motion, Defendant seeks to set aside the order which deemed admissions admitted which was made back on September 11, 2020. CCP 2...

Excerpt: ...NG: [email protected] (1) Defendant Perryman Mechanical�s Motion for Judgment on Pleadings and (2) Defendant McEachin�s Motion for Judgment on the Pleadings Defendants� Motions for Judgment on the Pleadings is granted without leave to amend. The named minor Plaintiff does not have standing to file this action as decedent�s parental rights were terminated prior to the accident in question. (3) Plaintiff�s Motion for Leave to Amend Co...

Excerpt: [email protected] Demurrer Defendant�s Demurrer to the third cause of action for intentional interference with contract is sustained with leave to amend. Plaintiff must plead the contracts and parties involved in the contracts that were purportedly interfered with. Defendant�s Demurrer to the fourth cause of action for intentional interference with prospective economic advantage is sustained with leave to amend. As currently pled, the claim allege...

Excerpt: [email protected] Demurrer Defendant�s Demurrer to the third cause of action for intentional interference with contract is sustained with leave to amend. Plaintiff must plead the contracts and parties involved in the contracts that were purportedly interfered with. Defendant�s Demurrer to the fourth cause of action for intentional interference with prospective economic advantage is sustained with leave to amend. As currently pled, the claim allege...

Excerpt: ...ING: [email protected] Plaintiff�s Motion for Summary Judgment is granted. Requests for Judicial Notice California State Grange�s Request for Judicial Notice filed February 10, 2021, is granted in its entirety. Banner Guild�s Request for Judicial Notice filed April 19, 2021, is granted in its entirety. Objections to Evidence Defendant�s Objections to Evidence filed on April 19, 2021, are sustained as to: 1 (legal conclusion); 5 (legal...

Excerpt: ...CCOURT.NET Plaintiff�s OSC re Preliminary Injunction is granted in part. 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. v. Crest Premium Real E...

Excerpt: ...ive ruling is issued by Judge Linda Sloven. If oral argument is requested, such oral argument shall be heard on Thursday, April 22, 2021, at 1:00 pm in Dept. 6. Mueller�s Motion for Summary Adjudication is denied. Standard of Review 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 dis...

Excerpt: ...ING: [email protected] Defendant�s Demurrer to the Complaint is sustained with leave to amend in part and overruled in part. As to both the cause of action for breach of fiduciary duty and breach of duty to disclose, the demurrer is overruled as to the argument relating to agency relationship as to both properties. Defendant contends that broker Muriel only represented Plaintiffs relating to the Peacock property and that Plaintiffs improper...

Excerpt: [email protected] Plaintiff�s Application for Writ of Attachment is denied. In order to grant an order for attachment, the court must find, pursuant to CCP section 484.090: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery on...

Excerpt: [email protected] Defendants Ireton and Your Town�s Demurrer to the First Amended Complaint is sustained with leave to amend in part and overruled in part. As to the first cause of action for breach of contract, as it relates to Defendant Ireton, the demurrer is sustained with leave to amend. Plaintiff has not pled any contract existed between Plaintiff and this moving defendant. To the extent Plaintiff intends to assert alter ego, Plaintiff...

Excerpt: [email protected] Plaintiff�s Application for Writ of Attachment is denied. In order to grant an order for attachment, the court must find, pursuant to CCP section 484.090: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery ...

Excerpt: [email protected] Plaintiff�s Application for Writ of Attachment is denied. In order to grant an order for attachment, the court must find, pursuant to CCP section 484.090: (1) The claim upon which the attachment is based is one upon which an attachment may be issued. (2) The plaintiff has established the probable validity of the claim upon which the attachment is based. (3) The attachment is not sought for a purpose other than the recovery o...

Excerpt: ...or 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 v. Oak...

Excerpt: ...NCCOURT.NET Demurrer Defendants� Demurrer to the Complaint is overruled. Civil Code section 798.84 requires a homeowner to give notice to management at least 30 days prior to filing an action. As stated in section (b): The notice shall be in writing, signed by the homeowner or homeowners making the allegations, and shall notify the management of the basis of the claim, the specific allegations, and the remedies requested. A notice by one homeow...

Excerpt: [email protected] (1) Dignity and Brown�s Motion to Strike Termination Allegations Defendants� Motion to Strike Termination Allegations is denied. First, this motion is denied on procedural grounds. A motion to strike must be filed within the time allowed to response to a pleading. CCP 435(b)(1). Here, the Amended Complaint was filed on 4/18/19 and the present motion was not filed until 2/5/21, well outside the time in which to file a respon...

Excerpt: [email protected] Mr. Diamond�s unopposed Motion to be Relieved as Counsel for Nye and Kacey Petros is granted. This order shall become effective upon filing proof of service of the signed order after hearing on client and opposing counsel. Plaintiff David Fischer�s Motion for Preliminary Injunction is denied. The elements generally applicable to a request for injunctive relief are as follows: (1) a balancing of the hardships (i.e., plaintiffs are...

Excerpt: ...OURT.NET Defendants� Demurrer to the Second Amended Complaint is sustained with leave to amend. As to the third cause of action for fraud/intentional misrepresentation, the demurrer is sustained with leave to amend. The cause of action fails because it is not pled with specificity: how, when, where, to whom, and by what means. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Claims against a corporation must include the names of the persons ...

Excerpt: ...OURT.NET Defendants� Demurrer to the Second Amended Complaint is sustained with leave to amend. As to the third cause of action for fraud/intentional misrepresentation, the demurrer is sustained with leave to amend. The cause of action fails because it is not pled with specificity: how, when, where, to whom, and by what means. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Claims against a corporation must include the names of the persons ...

Excerpt: ...o the first cause of action for Unfair Competition, the demurrer is overruled. Plaintiff has adequately pled his standing in that he alleged he lost money because defendant charged for, but failed to collect the waste. Moreover, causation is properly pled because Plaintiff alleges that he paid for services which were not rendered and his billings had concealed information. The claim is also pled with particularity. The �unfair� prong was prop...

Excerpt: [email protected] Motion for Judgment on the Pleadings Defendants� Motion for Judgment on the Pleadings as to the Complaint is denied. Defendants contend that the cause of action for declaratory relief is barred by the four year statute of limitations for breach of contract. The contract at issue was signed and purportedly breached in 2012, but the present action was not filed until 2020. However, the claim for declaratory relief is not a breach ...

Excerpt: ...OURT.NET Defendant Haines� Motion Defendant Haines� Motion for Summary Judgment has been dropped by the moving party. Defendants Reed, McCarthy, Reddy, Joves, and Spine & Nerve�s Motion Defendants� Motion for Summary Judgment is denied. The Alternative Motion for Summary Adjudication is likewise denied. The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evi...

Excerpt: ...NCCOURT.NET Plaintiff David Fischer�s Motion for Preliminary Injunction is denied. 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. v. Crest Prem...

Excerpt: .... While Plaintiff alleges that he has filed the present action as a derivative claim on behalf of the corporation and shareholders, no such allegations are set forth in the claim. Any amended complaint must be served and filed by February 4, 2021. 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) 362-4309 by 4:00 p.m. the cour...

Excerpt: ...URT.NET This tentative ruling is issued by Judge Linda Sloven. If oral argument is requested, such oral argument shall be heard on Friday, January 22, 2021, at 1:30 pm in Dept. 2. (1) Zahnleuter�s Petition to Compel Accounting & Surcharge Previously, Judge Tamietti granted the petition to compel Thomas Mueller to file an accounting. Such accounting has been filed. Judge Tamietti reserved on the issue of surcharging Thomas Mueller. The court now...

Excerpt: ...NCCOURT.NET Demurrer Cross-Defendant County�s Demurrer to the �Counter Claim� is sustained with leave to amend. The sole cause of action set forth in the purported cross-complaint is for declaratory relief. In such cross-complaint, Cross-Complainant Engstrom challenges the Governor�s health directives and stay at home orders as unconstitutional. Cross-Complainant seeks relief against a non-party, the Governor of California. As the Governo...

Excerpt: [email protected] Plaintiffs/Cross-Defendants� Motion to Compel Arbitration of Cross-Complaint is granted. The complaint in this action was filed on March 26, 2020. The original cross-complaint was filed on May 29, 2020, and did not include any cause of action as it relates to specific performance of the arbitration provision. However, the first amended cross-complaint was filed on August 10, 2020. In such cross-complaint, the second cause of ac...

Excerpt: ...COURT.NET Plaintiff�s Motion for Reconsideration is denied. "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. Dept. Of Corps. (200...

Excerpt: ...NCCOURT.NET Defendant USAA�s Motion for Summary Judgment is granted. Standard of Review 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, court...

Excerpt: ...NCCOURT.NET Plaintiffs� Request for Sanctions Against Attorney Jared Xu is denied. First, the procedures set forth in CCP section 128.5 were not complied with. While it appears that Judge Craddick did allow the parties to file a request for sanctions within 15 days, such permission did not waive any statutory requirements. Additionally, even if the procedures were complied with, CCP sections 128.5 and 128.7 require proof that Mr. Xu�s actions...

Excerpt: [email protected] Plaintiffs/Cross-Defendants� Motion to Compel Arbitration of Cross-Complaint is granted. The complaint in this action was filed on March 26, 2020. The original cross-complaint was filed on May 29, 2020, and did not include any cause of action as it relates to specific performance of the arbitration provision. However, the first amended cross-complaint was filed on August 10, 2020. In such cross-complaint, the second cause of a...

Excerpt: [email protected] Defendant USAA�s Motion for Summary Judgment is granted. Standard of Review 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, cour...

Excerpt: ...OURT.NET (1) Zahnleuter�s Petition to Compel Accounting & Surcharge Previously, Judge Tamietti granted the petition to compel Thomas Mueller to file an accounting. Such accounting has been filed. Judge Tamietti reserved on the issue of surcharging Thomas Mueller. The court now rules on the issue of surcharge: Petitioner Zahnleuter�s request to surcharge Thomas Mueller for the amount of litigation funds expended from the trust is granted. The ...

Excerpt: ... the previously filed application to enforce the settlement agreement. �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 ...

Excerpt: ...e 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, 154....

Excerpt: ...y, was negligent in the maintenance of the property, plaintiff was harmed, and defendant�s negligence was a substantial factor in causing Plaintiff�s harm. As to the third cause of action for strict liability is sustained with leave to amend. Plaintiffs have failed to allege that this moving defendant engaged in an ultrahazardous activity that caused the Plaintiffs to be harmed. As to the fourth cause of action for res ipsa loquitor negligenc...

Excerpt: ...ing which facts and theories to raise 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 also sustained with...

Excerpt: ...t, 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. Oakshade Town Center ...

Excerpt: ... fact, served. Secondly, Defendant seeks to strike the Declaration of Amy Irani and the Declaration of Dr. Richard Johnson. Such declarations were filed in support of the application for preliminary injunction, which has already been heard and granted. Moreover, this court specifically stated that the �Governor�s mask requirement and patronage limits� were not at issue in this case. Thus, these declarations provided no weight in the court�...

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

Excerpt: ...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 Oakland (...

Excerpt: ... its own lines and ends at the meter box. However, the complaint alleges that the smell of propane gas was known prior to activating the electricity. This is an obvious defect which was outside the home. There is a duty to discontinue service until the defect is remedied. See Lewis v. Southern California Gas (1928) 92 Cal.App. 670, 678. Plaintiff has alleged this duty was breached. As such, the complaint is adequately pled. As to the third cause ...

Excerpt: ...n part. The stipulation filed on September 30, 2019, which is a binding court order, specified that �the remaining money will be payed [sic] in one lump sum, or via a new repayment schedule, or a combination of the two.� However, a specific repayment schedule was not delineated in the stipulation. As such, there is no specific monetary amount that this court can enforce and order the parties to comply with. However, to the extent the stipulat...

Excerpt: ...facts sufficient to sustain a cause of action. Plaintiff has adequately alleged that Defendant failed to meet Plaintiff�s needs knowing that she would suffer injury with a conscious disregard of such injury. Plaintiff has alleged that Defendant failed to provide medical care and supervision knowing that Plaintiff had a history of falls. Ratification is also alleged in the sixth paragraph of Attachment One. As to the third cause of action, the d...

Excerpt: ...ate 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 equitie...

Excerpt: ... process violation. 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. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. S...

Excerpt: ...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 trial. 5. E...

Excerpt: ...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 trial. 5. E...

Excerpt: ...985) 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,...

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...