Excerpt: ...inds that the prior allegations sufficiently include facts related to trade secrets. As such, the adding of this cause of action without leave of court is permissible. Defendant Dronitek�s Motion to Strike paragraph 30 as against Dronitek is denied. Because Plaintiff has made alter ego allegations, in that there is unity of ownership and interests between Morris and Dronitek, the damages sought may be awarded against Dronitek by a jury if the a...

Excerpt: ...r 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 apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party s...

Excerpt: ... of being performed, such argument can be asserted as an affirmative defense. As to the second cause of action for common counts, the complaint alleges that money was lent by plaintiff to defendant at defendant�s request and that the sum of $25,000 remains unpaid. All necessary elements have been pled. As to the third cause of action for fraud, Plaintiff has alleged that Defendants stated that they would repay the money, but never intended to r...

Excerpt: ... paid taxes on the land. Mehdizadeh v. Mincer (1996) 46 Cal. App. 4th 1296, 1305; Silacci v. Abramson (1996) 45 Cal. App. 4th 558, 562. There is no requirement that there be actual knowledge to the owner; rather, such use shall be open and notorious. This allegation is set forth, as well as all other elements. Motion to Expunge Defendants� Motion to Expunge Lis Pendens is denied. The complaint at issue clearly affects title to, or the right to ...

Excerpt: ...nlawful detainer actions may be brought by an owner�s agent, this Court cannot determine if Plaintiff is an agent of the owner. Such issue is a factual question, inappropriate for demurrer. An Answer must be served and filed by August 18, 2021. Trial is hereby set for August 23, 2021, at 2:00 pm in Dept. 6. ...

Excerpt: ... gate was locked, from the date of its installation to January 2021. The court finds the request is not overbroad or burdensome. As to RPD 3, the motion is granted in part. Defendant shall provide responses and responsive documents relating to the easement provided to Defendant by Ann Armstrong in her capacity as prior owner of the property, not as an attorney involved in prior litigation. As to RPD 4, the motion is granted in part. Defendant sha...

Excerpt: ...l 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. ��The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controvers...

Excerpt: ...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 the existen...

Excerpt: ...ff paid taxes on the land. Mehdizadeh v. Mincer (1996) 46 Cal. App. 4th 1296, 1305; Silacci v. Abramson (1996) 45 Cal. App. 4th 558, 562. There is no requirement that there be actual knowledge to the owner; rather, such use shall be open and notorious. This allegation is set forth, as well as all other elements. Motion to Expunge Defendants� Motion to Expunge Lis Pendens is denied. The complaint at issue clearly affects title to, or the right t...

Excerpt: ...pplication was complete is a question of fact, inappropriate for demurrer. As to the argument that Plaintiff fails to state a cause of action pursuant to the COVID-19 Relief Act, the demurrer is sustained with leave to amend. Plaintiff has failed to allege that he was current on payment as of February 1, 2020, and that he was experiencing a financial hardship due to COVID-19. As to the negligence cause of action, the demurrer is sustained with le...

Excerpt: ...s 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 contin...

Excerpt: ...in the litigation. Here, Plaintiff is over 70 years of age. However, the health of the party is not such as to require preference. The court notes that the only declaration in support of the motion is by Plaintiff�s daughter. Such declaration is hearsay and the objection to such declaration on that basis is sustained. Assuming such information contained in the declaration is true, however, Plaintiff only suffers from depression and fear of a fa...

Excerpt: ...stify possession under the CUA/MMP, any quantity of medical marijuana possessed by the patient, and the form and manner in which it is possessed, �should be reasonably related to the patient�s current medical needs.� People v. Kelly (2010) 47 Cal.4th 1008, 1012-1013. Plaintiff has placed at issue whether the amount of marijuana possessed was �reasonably related to his medical needs.� See Littlefield v. County of Humboldt (2013) 218 Cal....

Excerpt: ...could reasonably conclude that cross- defendant acted intentionally, with a willful and conscious disregard of the rights or safety of cross-complainant, which is the definition of malice. See Morgan v. Davidson (2018) 29 Cal.App.5th, 540, 547; Civil Code 3294. Accordingly, the cross-complaint adequately alleges facts to support punitive damages. Thus, the motion to strike is denied. PERSONAL APPEARANCES ARE PERMITTED. ALL PERSONS, TWO YEARS OF A...

Excerpt: ...A motion to change venue based upon witness convenience must be supported by competent proof. Tutor-Saliba- Perini Joint Venture v. Sup. Ct (1991) 233 Cal.App.3d 736, 744 (citing, e.g., Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919). Here, Cross-Defendant has asserted that Plaintiff�s anticipated medical witnesses, material witnesses, and preschool teachers all reside within Contra Costa County. However, Cross-Complainant Rees has named six...

Excerpt: ...l Code section 597.1(j) provides: �no animal properly seized under this section or pursuant to a search warrant shall be returned to its owner until the owner can demonstrate to the satisfaction of the seizing agency or hearing officer that he owner can and will provide the necessary care for the animal.� In the present case, the three dogs were seized based on an underlying charge of felony animal abuse. That felony case remains pending. If ...

Excerpt: ... likelihood of prevailing on the merits. At this stage of the proceedings, the merits must be addressed at trial or through a motion for summary judgment. Thus, the motion for judgment on the pleadings is denied. 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 court day before the hearing. If you do...

Excerpt: ...ment 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 apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving p...

Excerpt: ...led. As to the second cause of action, the demurrer is overruled. Plaintiff has clearly alleged that she was not given a single point of contact as required by CC 2923.7. As to the third cause of action, the demurrer is sustained with leave to amend. First, the allegations that Plaintiff was not given options back in 2016 are time barred. Secondly, Plaintiff has failed to allege a �material� violation, as she admits she was able to apply for ...

Excerpt: [email protected] Respondent�s Demurrer to the First Cause of Action for Petition for Writ of Mandate is dropped as moot. The Petition was previously ruled upon and there are no remaining issues as to this cause of action. Respondent�s Demurrer to the Second Cause of Action for Injunctive Relief is sustained without leave to amend. An injunction cannot be granted �to prevent the execution of a public statute by officers of the law for the pub...

Excerpt: [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 Complaint...

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: [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: ...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] 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: [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: ...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: [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: ...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: ...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 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: ...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: ... 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: ...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: .... 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: ...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: ... 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: ...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: ...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...

Excerpt: ...al 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. Trial courts proper...

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...

Excerpt: ...5) 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, c...

Excerpt: ...ion, the court notes that CCP section 473 requires a copy of the proposed pleading to be filed with the motion. No such proposed pleading is attached. Plaintiff�s Motion for Judgment on the Pleadings is granted with leave to amend. The original Answer and the First Amended Answer do not set forth any valid legal defenses to a cause of action for ejectment. �Where a demurrer is sustained or a motion for judgment on the pleadings is granted as ...

Excerpt: ...in part. � �[Code of Civil Procedure section 664.6] created a summary, expedited procedure to enforce settlement agreements when certain requirements that decrease the likelihood of misunderstandings are met.� � Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1429. When enforcing a settlement agreement under section 664.6, the court has the authority to resolve factual disputes relating to the agreement, to interpret the terms of the ...

Excerpt: ...at issue requires that appointment and submission of the dispute to a neutral third party is required. However, Cross- Complainants have failed to allege completion or excuse relating to this requirement. While it is correct that the cross- complaint states �The Herrlingers performed all of their duties under the contract,� the Request for Judicial Notice demonstrates that this Court�s prior ruling addressed the failure of the condition pre...

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: ...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: ...c 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 nature of the fee award�.� Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, ...

Excerpt: ... Amend Complaint is granted. �The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond.� Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258. �Upon a motion for summary judgment, amendments to the pleadings are readily allowed.� Id., citing Kirby v. Albert D. Seeno Construction Co. (1992) 1...

Excerpt: ...] the party with a net monetary recovery, [ii.] a defendant in whose favor a dismissal is entered, [iii.] a defendant where neither plaintiff nor defendant obtains any relief, and [iv.] a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the �prevailing party� shall be as determined by the court, and under th...

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...