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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: .... 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: ...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�...