Excerpt: ...er or not the river creates a land-locked environment is also a factual question to be determined at trial. Accordingly, the demurrer is overruled. Defendants Jimenez, Ruiz, Dismukes Family Trust, Peck Trust, Digiordano Family Trust, and Ward�s Demurrer to the Second Amended Complaint is overruled in part and sustained with leave to amend in part. As to the arguments relating to innocence and the lack of an actual controversy, the demurrer is o...

Excerpt: ... summary judgment were originally set for hearing on April 17, 2020. Plaintiff�s oppositions were due on April 3, 2020. Although the motions were continued by the court due to the pandemic, the time for filing an opposition was not extended. The present applications were filed over ten weeks after the oppositions were due. Secondly, Plaintiff argues that she needs responses to her discovery requests. However, her discovery motions were denied o...

Excerpt: ...nied. �If [Plaintiff] wished to rely upon unpleaded theories to defeat summary judgment, he was required to move to amend the complaint prior to the hearing on [Defendant�s] motion.� Leibert v. Transworld Systems (1995) 32 Cal.App.4th 1693, 1699, citing Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18. Here, Plaintiffs were on notice that their complaints were insufficiently pled for a cause of action under Govern...

Excerpt: ...i & Steponovich v. Douglas (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, court...

Excerpt: ...whom the statement was made or who overheard the statement. Without these more particular facts, the court cannot determine the statements were made in the course of employment or the defendant ratified the conduct so that defendant Caltrans would be vicariously liable. Any amended complaint must be served and filed by August 3, 2020. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and comp...

Excerpt: ...caption of the motion is hereby stricken. Second, the motion is untimely. CCP section 1008 requires a motion for reconsideration to be filed within 10 days. Here, the order was entered into and notice of such order was given on January 31. The present motion was not filed until February 27. Thus, it was not timely filed. Third, on the merits, "[a] motion for reconsideration may only be brought if the party moving for reconsideration can offer 'ne...

Excerpt: ...t (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 part...

Excerpt: ... speech). If such a showing has been made, the court then determines whether plaintiff has demonstrated a probability of prevailing on the claim. Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66. In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. CCP � 425.16(b)(2). Only evidence admissible at trial m...

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; Hinesley ...

Excerpt: ...fourth causes of action against Defendant Nye Petros, but denied as to Defendant Kacey Petros. Defendants Petros� Motion for Summary Judgment is denied. The alternative motion for summary adjudication is likewise denied. Defendant Fraser�s Motion for Summary Judgment is denied. The motion for summary adjudication is likewise denied. Requests for Judicial Notice Plaintiff�s Request for Judicial Notice filed on November 7, 2019, is granted in...

Excerpt: ... speech). If such a showing has been made, the court then determines whether plaintiff has demonstrated a probability of prevailing on the claim. Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66. In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. CCP � 425.16(b)(2). Only evidence admissible at trial m...

Excerpt: ...for summary judgment was heard. Defendant was previously granted leave to amend its Answer to clearly address this issue. Plaintiff merely seeks clarification of the complaint to address this issue directly. Therefore, the motion for leave to amend the complaint is granted. The proposed Amended Complaint shall be filed and served by June 22, 2020. Defendant is granted leave to file a second motion for summary adjudication of the fifth cause of ac...

Excerpt: ...fourth causes of action against Defendant Nye Petros, but denied as to Defendant Kacey Petros. Defendants Petros� Motion for Summary Judgment is denied. The alternative motion for summary adjudication is likewise denied. Defendant Fraser�s Motion for Summary Judgment is denied. The motion for summary adjudication is likewise denied. Requests for Judicial Notice Plaintiff�s Request for Judicial Notice filed on November 7, 2019, is granted in...

Excerpt: ...tionally, Plaintiff must allege a proximate causal connection with Plaintiffs� damages. Additionally, the demurrer to the cause of action for loss of consortium is sustained without leave to amend. Plaintiff failed to obtain leave of court to add such claim. Any amended complaint shall be served and filed by June 15, 2020. The court notes that no further amendments will be permitted. The Court continues to encourage all appearances to be conduc...

Excerpt: ...rther Responses to Special Interrogatories is dropped as moot. Supplemental responsive documents and a privilege log have been served since the original motion was filed. As such, the present request is moot. If Plaintiffs determine that the additional documents produced are inadequate, Plaintiffs may timely file a new motion to compel further responses, with a new separate statement demonstrating what documents were served and how such responses...

Excerpt: ...irst Amended Complaint does not allege that Defendant is not a hospital. Additionally, Defendant did not provide any documents that are judicially noticeable to establish that it is not hospital so as to preclude liability. Because this court is limited to its review of the face of the pleading, the court cannot determine as a matter of law that Defendant is not a hospital. Therefore, the Demurrer is overruled. Any Answer must be served and filed...

Excerpt: ...nts, and bank statements. Plaintiff has failed to produce any such documents or state that any such documents do not exist. As to number 30, Plaintiff must state what documents, if any, she submitted to Medi- Cal. If no other documents aside from profit and loss statements were ever provided to Medi-Cal, Plaintiff must so state. Plaintiff shall provide such responses and responsive documents, without objections, by May 4, 2020. Defendants are awa...

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: ...redge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047. �If discovery and investigation develop factual grounds justifying a timely amendment to a pleading, leave to amend must be liberally granted.� Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596 (if claims were pled before obtaining justifying support, via investigating and discovery, complainants could be exposed to liability for malicious prosecution). Here, Plaintiff alleges that ...

Excerpt: ...d. Plaintiff has alleged he was entitled to money. Whether he was entitled to such money, whether it be from gross receipts or net profits, is a factual question, inappropriate for demurrer. As to the third cause of action for conspiracy, the demurrer is overruled. The Second Amended Complaint alleges that these defendants conspired to damage Plaintiff by depriving him of the benefits he would receive under these contracts. There is no requiremen...

Excerpt: ...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 leave to amend was previously granted and Plaintiff has failed to remedy the issue set forth above, leave to amend is denied. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies w...

Excerpt: ...r 30, 2018, defendant would pay Plaintiffs $1,000 per day until the personal property was removed. That date was extended by a judicial officer through January 9, 2019, due to a showing of due diligence by Defendant as well as weather delays. No further extensions of the deadline were granted. The settlement agreement, including the $1,000 payment provision, shall be enforced. It is undisputed that the rock wall was not removed until December 15,...

Excerpt: ...t allege: 1. The conduct was committed by a person acting under color of state law; and 2. it deprived a person of rights, privileges, or immunities secured by the Constitution or other law of the United States. Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1062. Here, Plaintiff has alleged in paragraphs 22-25 that plaintiff�s rights were violated by the conduct of the social worker who acted under color of law. The cause of acti...

Excerpt: ... that such a stay is discretionary, not mandatory. A notice of appeal does not alone stay judgment or order enforcement where they award money, and a bond or undertaking is required. Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1429. Here, Defendants seek additional time to perfect its appeal and post an undertaking. However, the court finds that Defendant has had sufficient time to analyze whether to appeal and to arrange for financing. The ...

Excerpt: ...nforcement under CCP section 664.6, no case number is even set forth. The proper method for enforcement of this document is a complaint for breach of contract. The present motion is procedurally defective. On the merits, however, the court notes that a condition precedent to the filing of any action is that the parties shall submit any disagreement to a neutral third party. The agreement further provides that if the parties cannot agree upon a ne...