Excerpt: .... For the following reasons, Union Pacific's motion is denied. On November 22, 2019 a wheel and tire on a chassis separated from the chassis and collided with a vehicle driven by decedent Thu Ahn Nguyen. Union Pacific owned the chassis, which was attached to a tractor-trailer owned by Mario Miranda. George Echeveste was driving the chassis on behalf of XPO Logistics, LLC. Decedent's survivors and estate filed this action against Union Pacific, XP...

Excerpt: ...ke and/or tax defendants' claimed costs. For the following reasons, defendants' motion for an award of attorneys' fees is granted in part and denied in part, and Bernal's motion to strike and/or tax costs is denied. Bernal argues defendants' attorneys' fees motion and costs memorandum are premature because the court has not entered judgment yet. The court has not entered judgment yet because—due to the convoluted history of this case detailed b...

Excerpt: ...led, and the motions for judgment on the pleadings are denied. As discussed below, based on the parties' agreement, the third cause of action for conversion against Billett and McAuliffe is dismissed without prejudice. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the ...

Excerpt: ... 4. Defendant James Tromblee, Jr.'s Joinder to Defendant Polymer80, Inc.'s Demurrer ROA 315 5. Status Conference Before the Court are two demurrers to the operative complaints in the underlying Cardenas and McFayden actions. The two complaints are treated as a single pleading by the parties for demurrer purposes. ROA 290 is the demurrer of Defendants Blackhawk Manufacturing Group, Inc.; Ghost Firearms, LLC; MFY Technical Solutions LLC; and Thunde...

Excerpt: ... parties' unopposed requests for judicial notice are GRANTED. In light of the ruling on the demurrer, TPG's motion to strike is DENIED AS MOOT. GROUNDS FOR RULING I. Standard of Review In reviewing a demurrer for failure to state facts sufficient to constitute a cause of action, the Court is guided by long-settled rules. The Court “treat[s] the [motion] as admitting all material facts properly pleaded, but not contentions, deductions or conclus...

Excerpt: ...9 working days after the date on which the application or appeal is filed with the commission.” (Public Resources Code §30621(a)). Thereafter, per Public Resources Code §30622, “[t]he commission shall act upon the coastal development permit application or an appeal within 21 days after the conclusion of the hearing pursuant to Section 30621.” Per Public Resources Code §30625(a), “if no action is taken within the time limit specified in...

Excerpt: ...uth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasona...

Excerpt: ...ement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. Were the Settlement and moving papers served on the LWDA? Proofs of service on the LWDA should be filed with the Court. 2. The PAGA notice letter(s) to the LWDA should be submitted to the Court. 3. The Participating Class Members' Release is confusing. The Settlement states “Plaintiffs and all other Participating Class Members shall be deemed to have set...

Excerpt: ...d and to deem LOAN OAK's requests for admission admitted; (2) evidentiary sanctions to preclude Z-WANG from asserting any affirmative defense to LOAN OAK's Cross-Complaint; (3) terminating sanctions by dismissing Z-WANG's complaint against it, striking Z-WANG's Answer to LOAN OAK's Cross-Complaint, and entering default against Z-WANG; and (4) monetary sanctions of $12,865.60 against Z-WANG to compensate LOAN OAK for the attorneys' fees and costs ...

Excerpt: ...le, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (19...

Excerpt: ...ports to name a trust as a party to the FAC; and b. Exhibit “F” of the FAC. (ROA 86) Initially, pursuant to CCP§430.41(a), before filing a demurrer the demurring party shall meet and confer in person or by telephone with the party who filed the pleading. An in person or telephonic meet and confer is also required prior to filing a motion to strike. (CCP§435.5(a)) Here, on 3/9/2022, this Court ordered the parties to “meet and confer prior ...

Excerpt: ... of limitations. On 4/15/21, the Court sustained Defendant's demurrer to the foregoing causes of action in the original complaint with leave to amend. Plaintiffs' First Amended Complain (“FAC”) filed on 5/5/21 includes the addition of paragraphs 62 and 63, which state: “62. On or about October 18, 2018, with approximately 27,876 miles on the odometer, Plaintiffs had the Subject Vehicle towed to Defendant's authorized repair facility complai...

Excerpt: ... Leffel to file an amended cross- complaint expires. As a threshold matter, on April 21, 2022, Leffel dismissed his Eleventh Cause of Action for intentional misrepresentation/fraud, so the demurrer as to this claim is moot. STANDARD OF LAW “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Redfearn v. Trader Joe's Co. (2018) 20 Cal. App. 5th 989, 996.) The Court must determine “whether the complaint alleges...

Excerpt: ...f and her ex-husband as to how to divide the $5,000,000. Plaintiff and her ex-husband agreed to participate in an arbitration hearing with the retired judge who assisted in the settlement of the underlying case. In the arbitration hearing to divide up the settlement funds, Plaintiff was represented by separate counsel and Plaintiff's ex-husband was represented by Defendants. Plaintiff contends now that it was improper for Defendants to have repre...

Excerpt: ...t or administrative body upon written notice to the governmental agency which has custody and control of the records. The written notice shall be given at the times prescribed by subdivision (b) of Section 1005 of the Code of Civil Procedure. Upon receipt of the notice the governmental agency served shall immediately notify the individual whose records are sought. ¶ (b) The motion shall include all of the following: ¶ (1) Identification of the ...

Excerpt: ...ction against Defendants L'Inc D'Aline Corporation (“LDC”) and S&S Fuel, Inc. (“S&S”) for (1) judicial foreclosure, (2) specific performance, (3) appointment of receiver, (4) imposition of constructive trust, (5) accounting, (6) injunctive relief, and (7) breach of written contract. The Complaint alleges LDC executed a promissory note (Complaint, Exh. 1) in the amount of $1 million secured by a deed of trust (Complaint, Exh. 2) on propert...

Excerpt: ...esponses under oath. Here, a name is given but nothing in the served verification identifies who this individual is and his capacity. The defendant suggests that everyone knows who is; the plaintiff even took his deposition for 11 hours as the Person Most Knowledgeable for the corporation. That may be so, but each discovery verification must be complete within itself. The propounding party (and the trier of fact) must not have to look to other so...

Excerpt: ...workers' compensation claim within the last seven (7) years. • No. 24: For each individual identified in Special Interrogatory No. 23, please provide the dates that they were employed by YOU. • No. 25: For each individual identified in Special Interrogatory No. 23, please describe if they were terminated, resigned, or continue to be employed by YOU. • No. 29: IDENTIFY any and all individual(s) that YOU terminated or forced to resign within ...

Excerpt: ...g of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to ...

Excerpt: ... the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 C...

Excerpt: ...merits and that harm will result if a preliminary injunction is not granted. (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356; Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal. App. 3d 827, 838.) In determining whether to issue a preliminary injunction, the court should balance the equities: (1) are the plaintiffs likely to suffer greater injury from a denial of the injunction than the defendants are likely to suffer...

Excerpt: ...otice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer ...

Excerpt: ...assistance by obtaining a writ of possession through the claim and delivery procedures. Claim and delivery is a statutory remedy by which a party with a superior right to a specific item of personal property may recover possession of that specific property before judgment. (Waffner International Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.) Code of Civil Procedure section 512.010(a), provides: “Upon the filing of the complaint or at any...

Excerpt: ...ame of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” “It is well established that ‘California courts “have ...

Excerpt: ...r service of a written notice that default judgment has been entered, whichever is earlier. Here, under either section 473, subdivision (b) or 473.5, the motion is untimely. Nonetheless, defendant argues service of summons was never valid, therefore, the time limitations do not apply. “[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. … Under section 473, subdivisio...