Excerpt: ...zing 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 983, 994; H...

Excerpt: ... 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. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192. In this case, plaintiff and defendants Michael and Renate DeMartini submitted briefing in connection with plaintiff�s 18 September 2019 motion. All parties presented oral argumen...

Excerpt: ...zing 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 983, 994; H...

Excerpt: ...y the stipulation filed 12/3/19, and whether the motion is now moot. Defendants Bares� Application for Good Faith Settlement is denied without prejudice. Defendant County�s Motion Contesting Good Faith Settlement is granted. Where a good-faith settlement is unopposed, counsel�s bare-bones declaration is sufficient for a good-faith determination. City of Grand Terrace v. Sup. Ct. (1987) 192 Cal.App.3d 1251, 1261; Weil & Brown, Civ. Pro. Befo...

Excerpt: .... Govt Code � 815. Thirdly, the claims fail to state facts sufficient to constitute a cause of action. The claims are also uncertain, ambiguous and unintelligible. Defendant County�s Motion to Strike Punitive Damages is granted. Punitive damages are not permissible against governmental agencies. Govt Code � 818. �Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leav...

Excerpt: ...it' basis." Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal. App. 4th 1105, 1127. Accord Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1292. In the present case, although Plaintiff has alleged the agreement is procedurally unconscionable because it was presented on a take-it-or-leave-it basis, the court finds such agreement is not unenforceable. Moreover, Plaintiff has failed to demonstrate any substantive unc...

Excerpt: ...ff will suffer if possession is denied or limited outweighs the hardship of the defendant or occupant. This order is made pursuant to CCP �1255.410. The property to be acquired is described as set forth in the Complaint. The date the condemnor is authorized to take possession of the property is effective on January 17, 2020. Moving party�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies wit...

Excerpt: ...arch warrant, the demurrer is overruled. Plaintiff alleges that there were purposeful omissions from the search warrant that would affect the issuance of the search warrant. Additionally, Plaintiff has alleged such omissions were malicious. As such, these claims are sufficiently pled. As to the argument that the Third Amended Complaint fails because there is no cite to any statutory authority of the claims and immunities apply, the demurrer is ov...

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: ...eral 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 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 tri...

Excerpt: ...�Alternatively, the party may affirm the contract, treating it as repudiated, and recover damages for breach of contract . . . .� Id. �The court does not rescind contracts but only affords relief based on a party's rescission. Both the grounds for rescission and the means by which parties may rescind their contract are governed by statute. � Id. �The steps to rescind a contract are set forth in section 1691[.] Id. The statutory grounds fo...

Excerpt: ...e matter proceed, Plaintiff�s unopposed Motion for Judgment on the Pleadings is granted. In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations, assumed to be true and liberally construed, are sufficient to constitute a cause of action. Stone Street Capital, LLC v. Cal. State Lottery Com'n (2008) 165 Cal.App.4th 109, 116; Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal. App. 4th 446, 452-5...

Excerpt: ...ep analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the 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 28...

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: ...erma v. County of Orange (2004) 120 Cal. App. 4th 709, 715; Frazee v. Seely (2002) 95 Cal. App. 4th 627, 635 (�Because the Legislature has provided for the fairly lenient granting of continuances to oppose summary judgment motions, and the premature grant of summary judgment may infringe upon the right to a jury trial, under these facts the court abused its discretion by failing to grant the request.�) In the present case, attorney Paul has p...

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: ...mental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.� Id. �Although in extreme cases a court has the authority to order a terminating sanction as a first measure . . . , a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ...

Excerpt: ... fees to the prevailing party. �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 and difficulty of the questions involved...

Excerpt: ...pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., �� 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint [or answer], as it stands, unconnected with extraneous matters, states a cause of action [or defense].'� Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. Accord McKenney...

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

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

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...