Excerpt: ...provement contracts with the defendants based on representations that the defendants were licensed contractors and would provide home improvement construction goods and services in a workmanlike manner when, in fact, the defendants were not licensed and performed construction services that violated applicable building code provisions and deviated from industry standards. Defendant demurs generally to the entire TAC as well as to the four causes o...

Excerpt: ...§452. HOLA Preemption Wells Fargo argues that the First, Second, Fourth, and Fifth Causes of Action are preempted by the Home Owners' Loan Act, 12 U.S.C. §1461 et seq., or “HOLA.” The court OVERRULES the demurrer on this ground. Wells Fargo's memorandum of points and authorities only argues as to the First and Second Causes of Action, and does not address the Fourth and Fifth. The court is unaware of any post-2013 California authority holdi...

Excerpt: ...ent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda v. City of Angels, 20 Cal. 4th 805, 817 (1999). By way of this Writ, Petitioner asks the court to set aside the decision of the Appeals Board affirming ...

Excerpt: ...oceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. Defendant submits his own declara...

Excerpt: ...efore the continued hearing per the time periods in Code Civ. Proc. § 1005. When jurisdiction is challenged by a nonresident defendant, the burden of proof is upon the plaintiff to demonstrate that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction. Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710. The plaintiff has the right to conduct discovery with regard to the issue of juri...

Excerpt: ... ordinance would materially impact the issues in this matter. At present the trial date is only four months away, but the court has not previously granted any continuances. The motion was brought as soon as reasonably practicable after plaintiff was notified of the City's pending review of its outdoor advertising regulations. It would appear that the current uncertainties should be resolved by early 2019, and the resolution of those uncertainties...

Excerpt: ...ts at the deposition, its deponent failed to produce those documents. Defendant contends that the documents were produced in 2017 on a CD. Plaintiff's authority for the motion is Code Civ. Proc. § 2031.320(a). That subdivision authorizes a motion to compel compliance with a statement of production contained in a “response to a demand for inspection, copying, testing, or sampling” under Code Civ. Proc. § 2031.210, et seq. Plaintiff did not s...

Excerpt: ...y the request was not made sooner. Id. at subd.(b). Given that this lawsuit was filed over one year ago, and trial is upcoming in December, this information is necessary for the court to assess plaintiff's request. ...

Excerpt: ...r First Cause of Action for dangerous condition of public property, their Second Cause of Action for negligence, and their Fourth Cause of Action for negligent infliction of emotional distress. All three causes of action against the City are premised on the assertion that the City maintained a dangerous condition on its property. On 05/23/18, the court granted the City's motions to deem the truth of matters asserted in Requests for Admission, Set...

Excerpt: ... for various wage and hour violations. The initial citation sought $180,070 jointly and severally from each petitioner, but the hearing officer reduced that amount to $104,541.92 for Konier and $148,210.92 for KS Carwash LLC. (CCP 1094.5.) The court is inclined to GRANT the petition as to issue 5 (f) and issue 7 below and to DENY the petition as to all other issues. However, at the parties' election, the court is inclined to permit further briefi...

Excerpt: ...rable harm pending trial on the merits. Burden of Proof Although the OSC directs the responding party to show cause why the preliminary injunction should not issue, the burden is on the moving party to show all elements necessary to support issuance of a preliminary injunction. (O'Connell v. Superior Court (2006) 141 Cal.App. 4 th 1452, 1481.) As the moving party, Defendant has the burden to show that they have a reasonable probability of prevail...

Excerpt: ...hin the past 30 days that the address is current. Additionally, the Declaration conflicts with the Proof of Service and states that the Motion was served by personal service on the client. Accordingly, it is unclear whether client has been served with the Motion at an address confirmed within the past 30 days. The Court is also concerned that withdrawal of counsel about a week before trial will be prejudicial to defendant, CreAgri, Inc. since a c...

Excerpt: ... to serve verified responses, without objections, to Form Interrogatories, Special Interrogatories and Requests for Production of Documents, Sets One within 20 days, and imposed a monetary sanctions award of $660 against plaintiff to be paid within 30 days pursuant to CCP §§2030.290 and 2031.300. Defendant gave notice of the Court's 4/4/18 ruling to plaintiff on 4/27/18. Plaintiff has failed to comply with the court's order of 4/4/18. Plaintiff...

Excerpt: ...s “averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.”) The demurrer to Defendants' 9 th affirmative defense for “Statute of Limitations—Personal Injury Negligence” is OVERRULED. The affirmative defense properly pleads the provision and subdivision barring the claim as required by California Code of Civil Procedure § 458. Plaintiffs to give notice. ...

Excerpt: ...rt witness costs, except as provided in paragraph 20. Paragraph 20 contains the following provision: Should either party attempt an arbitration or court action before attempting to mediate, that party shall not be entitled to attorney fees that might be otherwise available to it in a court action or arbitration and the party who is determined by the arbitrator or judge to have resisted mediation may be sanctioned by the arbitrator or judge. This ...

Excerpt: ...hat the motion was not served or filed within the time period required by Code of Civil Procedure §437c(a). Since the motion was served via U.S. mail to an address within the State of California, 5 calendar days are added to the 75-day notice period, and the motion should have been served and filed no later than 04/23/18. The motion was not served and filed until 04/25/18. Nonetheless, plaintiff filed a timely opposition on the merits, and did n...

Excerpt: ...m this court although she received actual notice of the default, default judgment, and collection efforts against her, (by her own admission) dating back to 2016. The evidence also suggests that she had ample notice even earlier, dating back to 2012 and 2015. A. CCP 473 (b) and 473.5 The motion is DENIED under CCP 473 (b) on the ground that the motion was not made within a reasonable time, in no case exceeding six months. The motion is also DENIE...

Excerpt: ...from Alzheimer's disease. Therefore, Plaintiff must present foundational evidence that the physicians are qualified to offer expert opinions on this point, albeit indirectly through the medical records which they and/or their staff prepared. The remaining arguments in the Opposition are without merit. First, Defendants argue that the medical records are hearsay, but the court is inclined to find that the medical records are generally admissible a...

Excerpt: ...ime enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.” Here, the moving plaintiff has submitted evidence consisting of the verified complaints, the felony complaints against defendant M...

Excerpt: ...o forward a copy of its motion and notice of this ruling to the State Bar. Finally, the Court sets a hearing on 8/16/2018 at 9 a.m. for an Order to Show Cause whether the trial date should remain and to determine the status of Plaintiffs' legal representation. The individual Plaintiffs are now in Propria Persona. If new counsel substitutes in for the Plaintiffs, the Court will take the OSC off-calendar. ...

Excerpt: ...1005, and, when applicable, the statutes and rules providing for electronic service. Cal. Rule of Court 3.1300(c) requires that a proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing. Second, Code Civ. Proc. §473(b) states, in part: “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the applica...

Excerpt: ...m this court although she received actual notice of the default, default judgment, and collection efforts against her, (by her own admission) dating back to 2016. The evidence also suggests that she had ample notice even earlier, dating back to 2012 and 2015. A. CCP 473 (b) and 473.5 The motion is DENIED under CCP 473 (b) on the ground that the motion was not made within a reasonable time, in no case exceeding six months. The motion is also DENIE...

Excerpt: ...ime enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294.” Here, the moving plaintiff has submitted evidence consisting of the verified complaints, the felony complaints against defendant M...

Excerpt: ...from Alzheimer's disease. Therefore, Plaintiff must present foundational evidence that the physicians are qualified to offer expert opinions on this point, albeit indirectly through the medical records which they and/or their staff prepared. The remaining arguments in the Opposition are without merit. First, Defendants argue that the medical records are hearsay, but the court is inclined to find that the medical records are generally admissible a...

Excerpt: ...edings before courts of record.” CLD Const., Inc. v. City of San Ramon, 120 Cal. App. 4th 1141, 1145 (2004). Defendant is unrepresented and has filed an answer in propia persona through a corporate representative, co-defendant Lau Musembi Senga. Accordingly, the court grants Plaintiff's motion to strike Excel Metals, LLC's answer. Plaintiff to give notice. ...