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: ...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: ...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: ...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: ...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: ...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: ...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 ...