Excerpt: ...es. (Complaint, Exh. A, p. 16, Article 41.) JMK sought money damages in the total amount of approximately $142,000. Following a court trial in this action, judgment was entered in favor of plaintiff and against defendant Betsey Alessi (“Alessi”), awarding JMK damages of $80,440, plus prejudgment interest in the amount of $4896. Where neither party achieves a complete victory on all contract claims, it is within the court's discretion to deter...

Excerpt: ...ract, for a fixed or readily 9 ascertainable amount not less than $500, that is unsecured or secured by personal property, and arising against a defendant who is a natural person for claims arising out of conduct by the defendant of a trade, business or profession. Code Civ. Proc. § 483.010(c). Damages must be measurable by reference to the contract itself, and the basis for computing damages must be reasonable and certain. CIT Group/Equipment F...

Excerpt: ...ants”) entered into a settlement of the entire action on or about August 14, 2020. (Declaration of Aaron Rudin, ¶ 2, Exh. A.) Paragraph 2 of the settlement agreement provides that defendants will pay plaintiffs a certain sum within 45 days of execution. Paragraph 3 of the settlement agreement states: 3. Retrieval of Property. Within sixty (60) calendar days of the date of execution of this Settlement Agreement and on a mutually agreed upon dat...

Excerpt: ...rrogatory Nos. 4, 5 and 6, served on defendant Mahabala Investments, LLC (“Mahabala”). Plaintiff served the subject discovery on Mahabala on or about January 23, 2020. Special interrogatory No. 4 states: If YOU contend that this lawsuit cannot be properly maintained as a class action because individualized issues for COVERED MEMBERS who worked during the COVERED PERIOD will predominate, identify each and every fact YOU believe supports YOUR c...

Excerpt: ...tate facts showing a reasonable and good faith attempt at informal resolution of each issue presented in the motion.” [Emphasis added.] Code Civ. Proc. § 2016.040. The statute requires the parties to seriously engage in negotiations and informal resolution. Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438. According to the declaration filed in support of the motion, counsel first sought to meet and confer regarding the subject disco...

Excerpt: ...mation campaign…” only), 27, 30‐33, 43, 48, 50‐56, 57 (as to statement beginning “As part of its misinformation campaign…” only), 60, 62, 64, and 68‐71 are sustained. The remaining objections are overruled. Plaintiff's objections to evidence are ruled on as follows: Objection Nos. 4, 7, 11, 13, 14, 18, 19, 21, 22, 24, 25, 26, and 27 are sustained. The remaining objections are overruled. Ruling on Motion Plaintiff California State ...

Excerpt: ...sed on the existence of evidence essential to oppose the motion that could not be timely presented, and moved for leave to file an amended complaint adding several claims against defendant. The court granted plaintiff's request to continue, and granted plaintiff's motion for leave to amend. Although it appears that plaintiff is no longer in custody, no first amended complaint has been filed, nor has plaintiff filed any further pleadings in opposi...

Excerpt: ... 391.7(c). Defendants Allmerica Financial Benefit Insurance (erroneously sued as The Hanover Insurance Group, The Hanover American Insurance, and Allmerica Financial Alliance Company), John Conner Roche, Gwen Jones, Arthur Anderson and Scot Erikson have filed a joinder to the motion. By order entered August 1, 2017, in Sacramento County Superior Court Case No. 34‐ 2017‐00211640, Hubbard v. Evett, plaintiff Donald Hubbard was deemed a vexatiou...

Excerpt: ...os and Lecona, LLC, Ramos & Lecona Ventures, LLC, Ramos & Nava Ventures, LLC, Ramos Holdings, LLC and M.K.&A., LLC move for summary adjudication of plaintiff Michelle Hill's first cause of action for declaratory relief, second cause of action for conversion of partnership property, third cause of 2 action for breach of partnership agreement, fourth cause of action for breach of fiduciary duty, fifth cause of action for breach of fiduciary duty, e...

Excerpt: ...g claims of partition and malicious prosecution against Kishiyama. Kishiyama filed a special motion to strike with respect to the malicious prosecution claim pursuant to Code of Civil Procedure section 425.16, and a demurrer as to the partition claim. The court granted the anti‐SLAPP motion and sustained the demurrer. Thereafter, the court granted Kishiyama's motion for attorneys' fees and awarded him $10,000 in fees. 4 On April 2, 2018, Rice f...

Excerpt: ...titute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. 8 Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. This action was initiated by complaint fil...

Excerpt: ...th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained as to cross‐ complainants' first cause of action for breach of written contract. In an action based on written contract, cross‐complainants must either attach a copy of the contract, set out the alleged terms verbatim, or plead the legal ef...

Excerpt: ...t the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained as to plaintiff's first cause of action for premises liability – dangerous condition of public property. To allege a dangerous cond...

Excerpt: ...reasonableness of the full amount of fees requested. The court continued the hearing to permit plaintiff the opportunity to provide additional information in support of the motion, including copies of billing statements with privileged information redacted, or a detailed summary of the number of hours expended by each attorney on each discrete task, and evidence in support of the request for costs. Despite the continuance based on insufficient in...

Excerpt: ...is to give due regard to the parties' agreement, ensuring that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145. A presumption of fairness exists where: (1) the settlement was reached through arms‐leng...

Excerpt: ... on August 19, 2020. In response to defendants' motion, plaintiff submits the declaration of process server Mark Rivera. Mr. Rivera details numerous attempts to effectuate personal service on defendants from August 4, 2020 to August 18, 2020. On August 5, 2020, Mr. Rivera observed Chen in his office and observed Chen's car in the office parking lot, but was informed by a different individual that Chen was not present. Mr. Rivera attempted service...

Excerpt: ...force pursuant to Code of Civil Procedure section 664.6, the court may not create material terms of the settlement agreement. Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182‐1183. 3 The settlement agreement between the Mauels and Walker contains the following terms: ¶B(3): Mauels and Walker shall conduct a walk‐through of the Subject Property, both interior and exterior, on a mutually agreeable date and develop a room‐by‐room and exteri...

Excerpt: ...1399, 1405. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. In this case, plaintiff concedes that his claims, except for PAGA claims added by amendment after the filing of defendant's motion, are subject to a valid arbitration agreement. However, plaintiff argues that defendant has waived the right...

Excerpt: ... Devon Bell demur to plaintiff's second amended complaint. A party may demur where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable th...

Excerpt: ...ral person for claims arising out of conduct by the defendant of a trade, business or profession. Code Civ. Proc. § 483.010(c). Damages must be measurable by reference to the contract itself, and the 7 basis for computing damages must be reasonable and certain. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541. Based upon review of the plaintiff's application, the court finds pursuant to Code of Civil Procedu...

Excerpt: ...015 Tort Claims Ordinance adopted by the UAIC, this court lacks jurisdiction over claims involving bodily injury, property damage, or personal injury, arising out of operation of the “Gaming Facility”. A challenge to the court's jurisdiction based on the doctrine of tribal sovereign immunity may be raised by a motion to quash. Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1416‐1418. Defendant est...

Excerpt: ...ibed conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. A demurrer can only be used to challenge defects that appear on the face of the pleading, or from matters that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other 5 extrinsic evide...

Excerpt: ...aintiff Russell Roark's first amended complaint. A party may demur where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations are deemed true no matter how improbable they may seem. Del E. Webb Co...

Excerpt: ...of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained as to Aizen's second cause of action for breach of the “AHAS Holdings/Controlling Shareholder Agreement”, alleged against defendants AHAS Holdings and the “Controlling Shareh...

Excerpt: ...malia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832. Prior to issuing a preliminary injunction, the trial court must first determine the likelihood that plaintiff will prevail on the merits of the action. Dept. of Fish & Game v. Anderson‐Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1560; IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69. Second, the court looks to the interim harm that will occur if th...

Excerpt: ...arties on the same cause of action. A plea in abatement requires that the identical cause of action is involved, such that a judgment in the first action would be res judicata on the claim in the second action. Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384. In this case, the court finds that abatement is not appropriate as the PAGA claim alleged in the prior action filed in San Bernardino County Superior 9 Court, Javier Torrez, et al v....

Excerpt: ... Rules of Court, rule 3.1345(c). As conceded by defendant, the separate statement sets forth the original responses, but not amended responses served prior to the motion being filed. The motion is granted as to special interrogatory No. 13. Plaintiff's response identifies several documents in response to the interrogatory. The response also notes additional 6 responsive information, but that providing this information would require creation of a ...

Excerpt: ...e ruled on as follows: Objection Nos. 1, 21, 24, 29, 30, 33, 34 and 35 are sustained. The remaining objections are overruled. Ruling on Motion Defendants Caliber Home Loans, Inc. (Caliber), Summit Management Company, LLC (Summit) and US Bank Trust move for summary judgment, or alternatively summary adjudication as to plaintiffs' claims for wrongful foreclosure, breach of contract, and unfair business practices. 3 Summary judgment may be granted w...

Excerpt: ...p.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiffs allege claims of fraud‐intentional misrepresentation, negligent misrepresentation, fraud‐omission, professional negligence, and breach of fiduciary duty, arising out of investments purchased through Berthel's registered representative Shawn Davis (“D...

Excerpt: ... for summary judgment as to plaintiff CSAA Insurance Exchange's claims for negligence and strict liability. 4 The party seeking summary judgment bears the burden of showing there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden of production to make a prima facie showing that there are no ...

Excerpt: ...true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is overruled as to plaintiff's first cause of action for breach of implied warranty, and second cause of action for breach of express warranty. Based on a review of the complaint as a whole, plaintiff adequately alleges these claims. Contrary to the 11 argument of defendant, plaintiff is not required to plead the...

Excerpt: ...he arguments have not been waived. Accordingly, the court proceeds on the merits. Unclean Hands The jury determined that Canel is liable to BBC under the terms of the Guaranty, in the amount of $2,116,000. Canel contends that BBC is barred from recovery under the Guaranty based on the doctrine of unclean hands. Under the unclean hands doctrine, the plaintiff must “act fairly in the matter for which he seeks a remedy. He must come into court wit...

Excerpt: ...ield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden of production to make a prima facie showing that there are no triable issues of material fact, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 850. Plaintiff is an unlicensed contractor who was injured while working on a job at defend...

Excerpt: ... County Superior Court Case No. SCV42872, Sheena George vs. Meritage Homes of California, Inc., et al (“the George action”), and (3) Placer County Superior Court Case No. SCV‐43149, W1 Holdings, et al vs. Deutsche Bank AG, et al (“the W1 action”), for all purposes including trial. The motion is denied. A complete consolidation may be ordered where the parties are identical and the causes of action could have been joined. Hamilton v. Asb...

Excerpt: ...tiff takes the position that counsel was placed “at an obvious disadvantage that would raise reasonable suspicion in any case”. (Declaration of Maria L. Weitz, ¶ 6, emph. in orig.) Plaintiff's counsel also notes background noise during the deposition, hesitation with respect to certain answers, and one instance of the deponent reviewing a document that he expressly requested from defense counsel. Plaintiff moves to compel the deposition of d...

Excerpt: ... a class action settlement, the court is to give due regard to the parties' agreement, ensuring the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. In re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App....

Excerpt: ... or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained as to the first cause of action for professional negligence alleged by plaintiff Linda Clayton (“Clayton”). Plaintiffs fail to allege facts which support the c...

Excerpt: ...the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of 3 the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. ...

Excerpt: ... not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained. Plaintiffs allege two causes of action under Civil Code section 2923.6(d) and (e). The statute states in relevant part: (d) If th...

Excerpt: ...itute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiff alleges that he was severely injure...

Excerpt: ... this was one day after defendant's opposition was filed, giving defendant no opportunity to respond. The failure to include a separate statement constitutes sufficient grounds to deny the motion. In addition, plaintiff does not make a sufficient showing that he informally attempted to resolve this matter with defendant. Code Civ. Proc. §§ 2030.300(b)(1), 2016.040. “A meet and confer declaration in support of a motion shall state facts showin...

Excerpt: ...of defendant's Compendium of Evidence filed April 13, 2020. The remaining objections are overruled. Defendant's objections to evidence are ruled on as follows: Objection Nos. 1, 3‐14, 21‐ 23, 25, 30 and 35 are sustained. The remaining objections are overruled. Ruling on Motion Defendant Todd Jarvis moves for summary judgment, or alternatively summary adjudication, as to claims alleged in plaintiff Robin Calder's complaint. Summary judgment ma...

Excerpt: ...true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is overruled as to plaintiff's first cause of action for breach of implied warranty, and second cause of action for breach of express warranty. Based on a review of the complaint as a whole, plaintiff adequately alleges these claims. Contrary to the argument of defendant, plaintiff is not required to plead the te...

Excerpt: ...forward on an earlier date due to a heavy trial calendar after October 21. (Declaration of Mary Talmanoff, Exh. I.) The parties did not resolve the issue at that time, and no further discussions were held until December 4, 2019. On that date, following inquiry by plaintiff's counsel, defense counsel conditionally offered February 3, 2020, but noted that she needed to clear the date with her client, and would follow up. (Id., Exh. J.) It does not ...

Excerpt: ...cluding objections to exhibits, are overruled. Defendant's objections to the declaration of Daniel McLain are ruled on as follows: Objection Nos. 2‐5 and Objection to Exhibits No. 2 are sustained. The remaining objections are overruled. Defendant's objections to the declaration of Sue Thompson are ruled on as follows: Objection Nos. 1‐2 and 6‐7 are sustained. The remaining objections are overruled. Defendant's objections to the declaration ...

Excerpt: ...s to give due regard to the parties' 2 agreement, ensuring that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145. A presumption of fairness exists where: (1) the settlement was reached through arms‐len...

Excerpt: ...n (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiff alleges that he worked as a food server at Fat's Asian Bistro in Roseville for approximately one year before he was constructively discharged in October 2019. (Complaint, ¶10.) A few months prior to being suspended, plaintiff's manager S...

Excerpt: ...erruled. Plaintiff's objections to the declaration of Jordan Meeks are ruled on as follows: Objection No. 2 is sustained. The remaining objections are overruled. Ruling on Motion Defendant La Familia Ramirez, Inc. dba Café Delicias moves for summary judgment as to plaintiff's negligence/premises liability claim arising from a slip‐and‐fall accident at defendant's restaurant. The court shall grant a motion for summary judgment if “all the p...

Excerpt: ... of the State of California. The court recognizes and respects the importance of zealous advocacy, while realizing that there is an important, albeit hazy, line between effective advocacy and improper behavior. California case law authority, the Business and Professions Code, and State Bar Guidelines of Civility and Professionalism all forbid attorneys from discourteous conduct or other affronts upon the dignity of the court. Vigorous advocacy do...

Excerpt: ...rson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiff's first and third causes of action allege breach of express warranty under the Magnusson‐Moss Warranty Act and the Song‐Beverly Consumer Warranty Act, respectively. Both claims are subject to a four‐year statute of limitations. U...