Excerpt: ...t agrees with defendant that defendant's residence address was not “unknown” to plaintiff, since the return mail label that plaintiff's counsel points to indicates “no mail receptacle” rather than “no such person at this address.” Thus, it only establishes the lack of a mailbox, and that defendant does not receive mail at the Christie Lane address. However, plaintiff diligently attempted service at the Christie Lane address six times ...

Excerpt: ..., as it stands, unconnected with extraneous matters, states a cause of action.'” Hahn v. M ir d a (2007) 147 Cal.App.4th 740, 747. Ac c o r d McKenney v. Purepac Pharmaceutical Co. (2008) 162 Cal.App.4th 72, 79. As to the first cause of action, the complaint is sufficiently clear to allow the defendant to answer. “[A] plaintiff need not plead facts with specificity where the facts are within the knowledge and control of the defendant and ...

Excerpt: ...e no new facts or law to support such contentions. Sp e c if ic a lly, t h e m o v in g papers argue that the Court lacked jurisdiction to make the Order Appointing Receiver because the first Notice of Appeal was properly signed. However, this same argument was made in the 10 - 16- 23 brief at 1:27- 28 and rejected by Judge Durant. Movants also argue in the present moving papers that the judgment did not appoint a receiver, but only contemplated ...

Excerpt: ...d does not seek, in the alternative, a continuance such that he may have more time to prepare a reply. Moreover, the Court's ruling is consistent with its prior ruling in relation to an identical request filed by Defendant Zipfel as to the same cause of action at issue in Wilson's motion. Accordingly, the Court exercises its discretion and accepts the late-filed Opposition. A motion for judgment on the pleadings has the same function as a general...

Excerpt: ...iolation of the statute. In orderto establish a claim under the FDCPA, the facts as alleged must show that Defendant was a "debt collector" as defined by the Act, that Defendants' challenged conduct constituted "debt collection," and that the debt collection actons violated a provision of the Act. (See, e.g., Heintz v. Jenkins (1995) 514 U.S. 291, 294. Here, Plaintiff has alleged all three elements in the Complaint. Defendants have cited no autho...

Excerpt: ...g up of affairs including sale of the real property with improvements thereon located at 12731 Loma Rica Driver, Grass Valley, California. ultimately, the single cause of action related to 12731 Loma Rica was remanded to this Court where it was adjudicated at court trial over several days. Thus, the costs being requested by Plaintiffs related to a long pending action spanning approximately nine (9) years. The fact is this cause of achon was part ...

Excerpt: ...communicate with is client. The Court notes, despite the granting of counsel's motion to withdraw, no proof of service has been filed evidencing service of that order on Plaintiff Thus, Plaintiff's counsel remains of record. The Court highlights this point due to the fact the original pending motions were served on Plaintiff's attorney of record. Moreover, this hearing date was not put forth on the Order relieving counsel. However, since no proof...

Excerpt: ...earlier date or otherwise address it until now. 2. Plaintiff's Motion to Compel Further Responses This matter comes on calendar in relation to Plaintiff, Richard Kyle Green's, timely filed Motion to Compel Defendant, Sheila Marie Zipfel, to Provide Further Responses to Form Interrogatories, Special Interrogatories, Requests for Production of Documents and Requests for Admissions (SET ONE) (hereinafter, "Mohon"). The Court has reviewed all pleadin...

Excerpt: ...ch can be challenged by evidence. Objections to Evidence Defendant's Objections to the four declarations filed in support of Plaintiff's opposition are sustained to the extent such statements are submitted to contradict and/or oppose Plaintiff's admissions. Here, Plaintiff made 94 admissions in discovery. An admission is deemed true for purposes of the subject litigation, and Plaintiff cannot seek to introduce evidence to assert facts which are c...

Excerpt: ...ing them Verdi was incompetent to provide services and thereby convinced customers to cease using Verdi's services and to hire Hamilton's newly-formed competing business. Verdi also alleges Hamilton poached Verdi's employees. A demurrer and motion to strike portions of the complaint was heard back in January, 2023. Defendant/cross-complainant Hamilton filed a Cross-complaint on 2/15/2023. It names Verdi Energy and Gregory Cecchi as Cross-Defendan...

Excerpt: ...for personal injury claims expired on 4/8/2023. CCP section 12a prov-des in pertinent part: "If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is nota holiday. For purposes of this section, "holiday" means all day on Saturday [and) all days that by terms of Section 12b are required to be c...

Excerpt: ...the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute. (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 354, quoting Freemont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.) "Taking judicial notce of a document is not the same as ac...

Excerpt: ...07) 148 Cal.App.4th 97, 113.) "Taking judicial notce of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning" and "[t]he hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose proper interpretation are disputable." (ld. at 365, quoting Indemnity, supra, 148.Cal. App.4th at 113- 114....

Excerpt: ...notice of hearsay allegations as being true," even where they exist in a court's record or file. (See Day v. Sharpe (1975) 50 Cal.App.3d 904, 914- 915, emphasis original Objections to Evidence Defendant Fernstrom-Lee's Objections to Evidence filed on June 7, 2023, are sustained as to: 1-9 (foundaton, personal knowledge); 23-34 (authentication). The remaining objections are overruled. Standard of Review A defendant (or cross-defendant) may move fo...

Excerpt: ...discovery requests were timely propounded, the time for response has elapsed, and no answers, documents, or other code-compliant responses have been received. (See McDonald Declaration, "1 3-7, Exhibit 4 thereto.) Their motion to compel is accordingly granted. Plaintiff is ordered to provide responses, without objections, to the form interrogatories, SROGs, and RFPs within ten (10) days of being served by Garda with this Court's order. As to the ...

Excerpt: ...ng." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884, italics added.) Accordingly, "an amended complaint supersedes all prior complaints" and "furnishes the sole basis for the cause of action ...." (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.) "[Tlhe original complaint ceases to have any effect either as a pleading or as a basis for judgment." (ld. at 1131, italics added; Anmoco, Inc. v. Boholken (1...

Excerpt: ...their contents or their proper interpretation. 1. Background Plaintiff is a corporation formed for the purpose of providing home automation services in the Verdi and Tahoe areas. Defendant is allegedly a former director, shareholder, and employee of the company. Plaintiff contends that, while Defendant was still a director, officer, and shareholder of the company, he misled customers by telling them that Plaintiff was incompetent to provide servi...

Excerpt: ...n evidentiary hearing pursuant to Probate Code section 1043 and 1046. Petitioner responded thereafter and contends that Mr. Mueller does not have standing in this matter and is therefore not entitled to the requested evidentiary hearing. The Court presently requires further briefing from the parties on the standing, right to evidentiary hearing, and other issues raised in Petitioner's response to the objection, including from Mr. Mueller and Resp...

Excerpt: ... they are presently ““unable to provide an accurate judgment for the court to render against the [CHP].” Defendants seek an extension until such time “as settlement or verdict is rendered” and notes that global settlement efforts are presently underway. The Court finds good cause exists to grant Defendants' motion for additional time, but declines to give Defendants an open‐ended and indefinite extension of time in which to seek its d...

Excerpt: ...denied because the alleged defect does not appear on the face of the complaint and the documents filed in support are not properly judicially noticeable. Defendant is ordered to file its answer within statutory time. No appearances are required. 1. Standard of Review A demurrer is properly brought where defects appear on the face of the complaint or from a judicially noticeable matter. (Code of Civil Procedure §§ 430.10, 430.30, 432.10.) But �...

Excerpt: ...endant also demurs separately and specifically to Plaintiff's claims for punitive damages. For the reasons discussed more fully below, Defendant's demurrer is sustained as to the third cause of action for intentional infliction of emotional distress on the grounds that the complaint fails to state facts sufficient to state a cause of action. Defendant's demurrer is denied as to the defamation and negligence causes of actions. It is also denied in...

Excerpt: ...request for admissions admitted is denied; his related motion for monetary sanctions is, however, granted with modification as discussed more fully below. As to Plaintiff's motion to compel responses to the form interrogatories, the Court notes that as of the posting of this tentative, it has not received any notification that compliant responses have been served by Defendant. Plaintiff's motion to compel is granted and Defendant is ordered withi...

Excerpt: ...nts to a pleading. Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047; “‘“[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments 'relate to the same general set of facts….”'” Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761. Here, although the trial is set in eight weeks, there is no prejudice to Defendant, as discovery has not yet closed. In addition, the Court finds that ...

Excerpt: ... Stone's banking records, which are private records, are not directly relevant to any cause of action or defense. Simply determining that decedent withdrew or transferred funds will not show where, when, what kind, or how much illicit drugs were purchased. Furthermore, there are less intrusive means to discover the nature and extent of decedent's drug usage. Plaintiffs may depose the “known drugs users” with whom decedent had frequent contact...

Excerpt: ...r lost profits due to a deprivation of his fair share. See Jara v. Suprema Meats (2004) 121 Cal.App.4th 1238, 1258. Further, a demurrer is improper to challenge the sufficiency of an attorney. Moreover, Gonsalves is allowed to appear both individually and derivatively. Lastely, paragraph 30 alleges that Engberg himself, not just PPSC, used WR Associates' supplies. As to the second cause of action for declaratory relief, the cross‐complaint suff...

Excerpt: ...le 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 existence of a triable, m...

Excerpt: ...court finds that the element of reliance and all other elements are properly pled. The demurrer to the seventh cause of action for conversion is sustained with leave to amend. Plaintiff must allege what property was converted. The demurrer to the eighth cause of action for wrongful eviction is overruled. Plaintiff has pled both ownership and tenancy in the alternative. Moreover, Plaintiff has alleged he moved onto the property and had a possessor...

Excerpt: ...ty. That judgment is on appeal. However, such judgment is not stayed by the filing and pendency of the appeal. Pursuant to CCP section 916.1, a money judgment is not stayed during an appeal unless an undertaking has been posted. An undertaking is required to stay enforcement of an order which directs payment of money or delivery of personal property and is required in dissolution proceedings pending appeal. In re Marriage of Thompson (1979) 96 Ca...

Excerpt: ...ight of petition or free 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 eviden...

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: ...or 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 v. Oak...

Excerpt: ...o the first cause of action for Unfair Competition, the demurrer is overruled. Plaintiff has adequately pled his standing in that he alleged he lost money because defendant charged for, but failed to collect the waste. Moreover, causation is properly pled because Plaintiff alleges that he paid for services which were not rendered and his billings had concealed information. The claim is also pled with particularity. The �unfair� prong was prop...

Excerpt: .... While Plaintiff alleges that he has filed the present action as a derivative claim on behalf of the corporation and shareholders, no such allegations are set forth in the claim. Any amended complaint must be served and filed by February 4, 2021. 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 cour...

Excerpt: ...y, was negligent in the maintenance of the property, plaintiff was harmed, and defendant�s negligence was a substantial factor in causing Plaintiff�s harm. As to the third cause of action for strict liability is sustained with leave to amend. Plaintiffs have failed to allege that this moving defendant engaged in an ultrahazardous activity that caused the Plaintiffs to be harmed. As to the fourth cause of action for res ipsa loquitor negligenc...

Excerpt: ...ing which facts and theories to raise at his administrative hearing in which to reserve for a civil lawsuit, if all speak to the same issue-- which in this case was the wrongfulness of the discharge..� Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 889. These claims challenge the termination process itself. Therefore, they must be addressed in a mandamus action. As the first cause of action, the demurrer is also sustained with...

Excerpt: ... 709, 715. Here, counsel has stated that he needs to depose two of the cross-defendants as well as one witness. These are essential and extra time is needed due to counsel�s prior trial schedule as well as the limitation relating to the pandemic. In addition, a critical deposition is set for 9/25/20. Therefore, the requested continuance is granted. Any opposition and supporting papers must be served and filed by October 9, 2020. Any reply shall...

Excerpt: ...tive record in advance. CCP section 1094.6(c) provides, �The complete record of the proceedings shall be prepared by the local agency or its commission, board, officer, or agent which made the decision and shall be delivered to the petitioner within 190 days after he has filed a written request therefor. The local agency may recover from the petitioner its actual costs for transcribing or otherwise preparing the record.� There is no statute o...

Excerpt: ...ion, irrespective of whether leave to amend is requested or not.� McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304; City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747 Therefore, leave to amend is granted. Plaintiff shall file and serve an amended complaint by September 24, 2020. Defendant�s attorney is to submit a formal order that sets out verbatim the tentative ruling herein for all five matters and complies with Cal...

Excerpt: ...t. Telephonic appearances are required to address Ms. Mueller�s request to appoint a private professional trustee. The court wishes to discuss options: whether Thomas Mueller is willing to continue to act; if Ms. Mueller and Ms. Zahnleuter can put aside their differences to act as co-trustees; or if there are other available trustees, either professional or trustworthy lay persons, who can administer the Trust as provided in the Second Amendmen...

Excerpt: ...lacks personal knowledge); 12 (lacks personal knowledge); 13 (hearsay); 14 (hearsay); 15 (hearsay); 16 (hearsay); 20 (lacks personal knowledge); 26 (requires expert); 40 (requires expert); 48 (requires expert); 49-52 (subsequent remedial measures); 53 (legal conclusion); 54 (hearsay). The remaining objections are overruled. Plaintiff�s Objections to Evidence filed July 23, 2020, are overruled in their entirety. Standard of Review The function o...

Excerpt: ...aise at his administrative hearing in which to reserve for a civil lawsuit, if all speak to the same issue-- which in this case was the wrongfulness of the discharge..� Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 889. These claims challenge the termination process itself. Therefore, they must be addressed in a mandamus action. As the first cause of action, the demurrer is overruled. The claim does not challenge the terminat...

Excerpt: ...001) 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; McGarry v. Sax ...

Excerpt: ...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; McGarry v. Sax...

Excerpt: ...he event the failure to add such cause of action and the facts to support it were erroneously not included in the drafting of the first amended cross-complaint. The first cause of action for violation of Civil Code section 1940.2 is also stricken with leave to amend. Cross- complainant must clearly allege what conduct by the landlord which is specified under section 1940.2 has been done. As currently pled, cross-complainant only references Penal ...

Excerpt: ...ent in and as part of the transaction of such business�� This statue confirms that it is the principal, not to the agent, who is responsible and who has the duty to third persons. The law is clear that in California, an agent is not liable to third persons for allegedly nonfeasance. Fisher v. General Petroleum (1954) 123 Cal.App.2d 770. Plaintiff has alleged that defendant Ohran is an agent of defendants Powdr and Boreal. As such, she has no ...

Excerpt: ...tutory language of CCP �430.40 is permissive, not mandatory. Thus, the court will address the merits of the demurrer. As to the first cause of action for conversion, the demurrer is sustained with leave to amend. As set forth in PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395, 397: money cannot be the subject of a cause of action for conversion unless there is an identifiable sum, and ...

Excerpt: ...rial (The Rutter Group 2012) �8:1203. �A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions�.: (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful.� Biles v. Exxon Mobil Corp. (2004) 124 Cal. App. 4th 1315, 1327. Here, Defendant has ignored the court Order requiring him to...

Excerpt: ...saction of such business�� This statue confirms that it is the principal, not to the agent, who is responsible and who has the duty to third persons. The law is clear that in California, an agent is not liable to third persons for allegedly nonfeasance. Fisher v. General Petroleum (1954) 123 Cal.App.2d 770. Plaintiff has alleged that defendant Ohran is an agent of defendants Powdr and Boreal. As such, she has no individual liability as an age...

Excerpt: ... prima facie showing that the attacked claims arise from a protected activity, including defendants� right of petition, or free speech, under a constitution, in connection with issues of public interest. Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal. App. 4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 671; Quinlon Ent. v. Consumer Caus...

Excerpt: ...mary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oaksh...