Excerpt: ...may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition” of the defendant, to be released to plaintiff if liability for punitive damages in accordance with Civil Code section 3294 is established. In this action, moving defendant is potentially subject to liability for punitive damages and consequently plaintiff is statutorily entitled to subpoena the subject documents t...

Excerpt: ...ommissioner was “vested with the authority to hear any future or further hearings or the trial in this case, whether contested or uncontested, as Judge Pro Tempore.” Upon stipulation of the parties, a court commissioner is empowered to adjudicate a “cause” until its final determination. Cal. Const., art. VI, § 21. The determination of a cause encompasses subsequent proceedings that are its “direct progeny,” but not those considered �...

Excerpt: ...d fifth causes of action in the petition for negligence, intentional misrepresentation, and conversion. A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733. All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, ...

Excerpt: ...72, 75, 76 and 80‐82 are sustained. The remaining objections are overruled. Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted. With respect to Exhibits 15, 16, 18‐ 25, 28, 30, 32‐34, and 36‐40, the court takes judicial notice of the fact that these documents were filed in a prior action, but not the truth of factual statements made therein. Ruling on Motion Defendant Brookfield Homeowners' Associatio...

Excerpt: ... p. 4.) A proof of service of summons filed April 9, 2010, states that Hoehn was served by substituted service on “Shannon Smith, Girlfriend – Co‐Occupant” on April 1, 2010, after several unsuccessful attempts. A declaration of mailing states that the summons and complaint were mailed to the service address on April 2, 2010. No answer was filed within the time required by law, and Hoehn's default was entered on May 18, 2010. Hoehn moves t...

Excerpt: ... LLC's (“SNP's”) prior motion to enforce, as well as a proposed judgment thereon. The court's ruling did not provide further 3 direction on the contents of the proposed judgment. Subsequent to this action, on March 16, 2020, the court entered a modified ruling on submitted matter and judgment thereon. SNP now moves to vacate the March 16, 2020 judgment (“the Judgment”) pursuant to Code of Civil Procedure section 663. In its reply brief, S...

Excerpt: ...McNally”) moves for summary judgment as to plaintiffs' cause of action for negligent misrepresentation. 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 tria...

Excerpt: ... discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) the likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the length of time elapsed between the date previously set, and the date presently set,...

Excerpt: ...ddresses a conflict between a party's right to choose its counsel and the overall needs of the judicial system to maintain ethical standards of professional responsibility for attorneys. Comden v. Superior Court (1978) 20 Cal.3d 906, 915; People ex rel. Dept. of Corrections v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil). “The paramount concern must be to preserve public trust in the scrupulous administration of j...

Excerpt: ...031.300(c). However, repeated conduct of failing to comply with discovery obligations may lead the court to find an abuse of the discovery process and award sanctions on that basis. Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4. Farmers Insurance Exchange's Motion to Compel Responses to Special Interrogatories Farmers Insurance Exchange's mo...

Excerpt: ...'s motion to compel is granted in part, and denied in part, as follows: 9 Defendant's motion to compel further responses to Form Interrogatories Nos. 6.4, 6.5 and 6.7 is granted. Responses to interrogatories must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” Code Civ. Proc. § 2030.220...

Excerpt: ... may be made on the grounds that a cause of action does not state facts sufficient to constitute a valid cause of action. Code Civ. Proc. § 438. Defendant's motion seeks judgment on the complaint on the grounds that the complaint is not verified. As a preliminary matter, a motion for judgment on the pleadings does not appear to be the proper vehicle to challenge the complaint due to the lack of verification. The proper objection where a party fa...

Excerpt: ...g objections are overruled. Plaintiffs' objections to the declaration of William Flournoy are ruled on as follows: Objection Nos. 3, 7 and 8 are sustained. The remaining objections are overruled. Plaintiffs' objections to the declaration of Frieda Fisher‐Dubois are ruled on as follows: Objection No. 2 is sustained. The remaining objections are overruled. Plaintiffs' objections to other evidence submitted by defendants are ruled on as follows: O...

Excerpt: ... to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. Plaintiff submits evidence establishing an agreement to provide legal services to defendant Paul Nau. (Pltf. SSUMF 1.) During the course of that representation, plaintiff sent defendant monthly billing statements which detailed the services provided, the time expended, the costs incurred, and the balance due. (Pltf. SSUMF 4.) Defendant m...

Excerpt: ...ed the “supplemental opposition” filed by plaintiff on May 8, 2020. The court notes that plaintiff first filed opposition to defendant's motion on August 30, 2019. After the court granted a continuance pursuant to Code of Civil Procedure section 473c(h), plaintiff filed a subsequent opposition on March 6, 2020. The supplemental opposition would be the third responding memoranda to plaintiff's motion, and considering the supplemental oppositio...

Excerpt: ...expired. Code Civ. Proc. § 438. The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. 5 Tort liability against a public entity requires an authorizing statute or enactment. Gov. Code § 815(a); Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802. Plaintiff points to no statutory authority to assert a claim against a public entity for general negligence, or for premises liability...

Excerpt: ...fession. 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 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 Procedure section 483.010 that plaintiff has established the probable validity of the claim exceed...

Excerpt: ...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. Id. The motion for summary judgment must be supported by evidence establishing the moving party's right to relief. Regents of Univ. of Cal. v. Superior Court (1996) 41 Cal.App.4th 1040, 1044. “There is no obligation on the opposing party … t...

Excerpt: ...ng, by affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468. 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. A...

Excerpt: ...ments which he contends are responsive to these requests, and states that he has produced all responsive documents. Defendant submits no evidence suggesting that plaintiff may have additional documents which are responsive to these requests which have not been produced. The motion is denied as to Request Nos. 13 and 14. Plaintiff did not waive applicable objections as to these requests, as the objections were timely served within the one week ext...

Excerpt: ...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. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. Pride's dem...

Excerpt: ... are ruled on as follows: Objection Nos. 4 (as to the last sentence only), 8, 10, 11 (as to the second sentence only), 12, 13, 15, 18, 19, 20, 29, 32, 40, 41 and 42 are sustained. The remaining objections are overruled. 8 Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted. With respect to Exhibits 15, 16, 18‐ 25, 28, 30, 32‐34, and 36‐40, the court takes judicial notice of the fact that these documents ...

Excerpt: ... amount of $810 from plaintiffs' counsel. Code Civ. Proc. § 2033.280(c). Motion to Quash Depositions Subpoenas and for Protective Order As a preliminary matter, the court has considered plaintiffs' untimely reply in ruling on this motion. Plaintiffs move to quash a deposition subpoena for production of business records served on law firm Wells, Small, Fleharty & Weil, and depositions subpoenas served on Steve A. Small, Esq. and Dara Stead. Depos...

Excerpt: ...e ruling on submitted matter issued September 2, 2019, upon which the November 4, 2019 judgment is based, and enter an amended ruling on submitted matter and new and different judgment. Code of Civil Procedure section 663 empowers the trial court to set aside a judgment based on a decision by the court., where there is an incorrect or erroneous legal basis for the 2 decision, not consistent with or not supported by the uncontroverted facts. Glen ...

Excerpt: ... of the plaintiff's allegations or the accuracy of 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. However, the court does not assume the truth of content...

Excerpt: ... accuracy of 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. However, the court does not assume the truth of contentions, deductions, or conclusions of fa...

Excerpt: ...1.2, 945.4. If the application is not timely presented, the injured party may apply for leave to present a late claim within a reasonable time, not to exceed one year. Gov. Code § 911.4. If the application is denied, the injured party may petition to the trial court for relief from the provisions of Government Code section 945.4. Gov. Code § 946.6. In order to be entitled to relief under Government Code section 946.6, petitioner must establish ...

Excerpt: ... of Business and Professions Code section 17200. Plaintiffs' fourth and fifth causes of action are wholly based on the purported violations of Civil Code sections 2923.5, 2924.11, and 2923.7. Nationstar's motion for judgment on the pleadings was granted with respect to plaintiffs' first, third and fourth causes of action. Subsequently, Nationstar moved for summary judgment on the 14 second and fifth causes of action, which motion was granted. A j...

Excerpt: ...ion including (1) fraud in the inducement – intentional misrepresentation; (2) negligent misrepresentation; (3) fraud in the inducement – concealment; (4) fraud in the performance of contract – intentional misrepresentation; (5) violation of the SongBeverly Act; and (6) violation of the Consumers Legal Remedies Act. Defendants contend that each of plaintiffs' claims is barred by the applicable statute of limitations. Defendants also contend...

Excerpt: ... lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) the likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the length of ...

Excerpt: ... 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. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. Plaintiff's third cause of action alleges negligent infliction of emot...

Excerpt: ...adings, not the truth of the allegations or the accuracy of 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. However, the court does not assume the truth o...

Excerpt: ...duction 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. The motion for summary judgment must be supported by evidence establishing the moving party's right to relief. Regents of Univ. of Cal. v. Superior Court (1996) 41 Cal.App.4th ...

Excerpt: ...rays for holdover damages beginning on November 1, 2019, a date that is prior to expiration of the 3‐day notice, in addition to seeking past‐due rent of $3,800. The 3‐day notice suggests that the total requested may include amounts that do not constitute unpaid rent, such as “late penalties or other fees accumulated”. Finally, the 3‐day notice fails to comply with Code of Civil Procedure section 1161(2), as it fails to state how the r...

Excerpt: ...ent 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 the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The first amended comp...

Excerpt: ...1. Nevertheless, the court maintains discretionary power to grant relief. Id. at 289‐290; Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1200. In this case, the court finds that plaintiff's failure to timely file its motion for fees was due to the excusable neglect of counsel. The court further finds that the motion for relief was made within a reasonable time, and that defendant will not be prejudiced by permitting relief. According...

Excerpt: ... not the truth of the plaintiff's allegations or the accuracy of 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. However, the court does not assume the tr...

Excerpt: ...oes 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 the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, ...

Excerpt: ...n if she contends that there is no merit to one or more causes of action alleged in the complaint. Code Civ. Proc. § 437c(f)(1). A moving defendant has the initial burden of showing that a cause of action has no merit, or there is a complete defense to the cause of action. Code Civ. Proc. § 437c(p)(2). If defendant meets her initial burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact as to the cause ...

Excerpt: ....16(a); see also Sylmar Air Conditioning v. Pueblo Contracting Svcs., Inc. (2004) 122 Cal.App.4th 1049, 1055‐1056. In determining whether an action or claim is a SLAPP suit subject to a special motion to strike , the court evaluates first whether the claim arises out of the defendant's protected speech or petitioning activity, and second whether plaintiff can show a probability of success on the merits. Navellier v. Sletten (2002) 29 Cal.4th 82...

Excerpt: ...court approval of S.W.'s transfer of future life‐contingent payments in the amount of $835,048.21 in exchange for $10,000. S.W. states that he is 35 years old, with no minor children. He states that he is currently unemployed, experiencing a financial hardship, and that he will use the money to purchase an RV or mobile home, and an affordable car. S.W. states that he has applied to the court for approval of prior transfers of his structured set...

Excerpt: ...927. Defendant must show that a suitable alternative forum exists, and that the balance of private and public interest factors makes it just that litigation proceed in the alternative forum. Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751. Where plaintiff is a California resident, there is a strong presumption in favor of plaintiff's choice of forum. Nat'l Football League v. Fireman's Fund Ins. Co., supra, 216 Cal.App.4th at 926‐927. “[E]xc...

Excerpt: ...jurisdiction. Greener v. Workers' Compensation Appeals Board (1993) 6 Cal.4th 1028, 1037. However, plaintiff's moving papers raise certain issues which must be addressed before discharge may be granted. First, plaintiff's notice of motion indicates that the subject funds total $251,837.19, which plaintiff proposes to interplead. However, the declaration of Chere Tait indicates that the subject funds total $264,337.19, and the opposition filed by ...

Excerpt: ...ngs 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. Plaintiff alleges that Lacy Hart, a probation officer, submitted a falsified or inaccurate report in connection with a criminal action involving plaintiff. As a probation officer, defendant is entitled to absolute immunity from claims relating to the preparation, provision and filing of presenting re...

Excerpt: ...'s allegations or the accuracy of 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. However, the court does not assume the truth of contentions, deductions,...

Excerpt: ...iciency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of 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. However, the cou...

Excerpt: ...Cal.App.4th 1399, 1405. “A strong public policy favors the arbitration of disputes, and doubts should be resolved in favor of deferring to arbitration proceedings.” Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Laswell v. AG Seal Beach, LLC, supra, at 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...

Excerpt: ... 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. It is the petitioner that carries this initial burden of proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972. “‘[A] party cannot be required to submit to arbitration any dispute which he has ...

Excerpt: ...he court will exercise its discretion and consider the substance of defendants' motion, despite plaintiff's contention that notice was insufficient. Defendants' motion is denied. Defendants' notice of motion fails to set forth the statutory authority for coordination of the two cases. Coordination pursuant to Code of Civil Procedure sections 404 et seq. applies to civil actions pending in different courts. See Code Civ. Proc. § 404. Defendants' ...

Excerpt: ...cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); 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 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. Id. The court notes tha...

Excerpt: ...the causes of action in question cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); 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 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 mater...

Excerpt: ...ily Trust (“Maehler”), and defendant and cross‐complainant Rex Harrison (“Harrison”). Following two days of mediation, the parties entered into a settlement agreement and mutual release of claims (“the Settlement Agreement”), attached as Exhibit A to the declaration of Gregory Koonce. In relevant part, the Settlement Agreement states: b. Each Party shall grant to the other Parties an express non‐exclusive easement for ingress and ...

Excerpt: ...uses of action for reformation of instrument and declaratory relief. 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. The moving party has the burden of showing, by affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. Cons...

Excerpt: ... overruled. Defendants' objection to the supplemental declaration of Jay Brown is sustained. 3 Ruling on Motion Defendants move for summary adjudication as to plaintiff's prayer for punitive damages. A defendant may move for summary adjudication as to a claim for punitive damages if the party contends that there is no merit to the claim. Code Civ. Proc. § 437c(f)(1). A moving defendant has the initial burden of showing that a claim has no merit....

Excerpt: ...tinuance under Code of Civil Procedure section 437c(h) as facts essential to justify opposition to defendants' motion may exist, but cannot, due to difficulties in obtaining necessary discovery, be presented at this time. Appearance is required in order to determine a reasonable continued hearing date for the motion. Motion to Expunge Lis Pendens The parties' requests for judicial notice are granted. 4 Defendants' motion to expunge lis pendens is...

Excerpt: ...intiff's allegations or the accuracy of 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. However, the court does not assume the truth of contentions, deduc...

Excerpt: ...76, 885. In making this determination the court considers the extent the defendants' Fifth Amendment rights are implicated; the interests of the plaintiff in proceeding expeditiously and the potential prejudice of a delay; the burden the proceedings may impose on the defendants; the convenience of the court to manage cases and efficient use of judicial resources; the interests of others not involved in the civil litigation; and the interests of t...

Excerpt: ...ather, defendant appeared at trial and signed a stipulation for entry of judgment. Defendant seeks to have the stipulated judgment set aside on grounds of mistake. Code Civ. Proc. § 473(b). Specifically, defendant asserts that she was mistaken in believing a statement by plaintiff's counsel that a continuance of the trial date “was not going to happen.” Defendant further claims that she was in a weakened frame of mind because she had been ho...

Excerpt: ...her takes judicial notice of the fact that the motion was granted on June 14, 2019. Defendant Wells Fargo Bank (“Wells”) moves for judgment on the pleadings as to the first cause of action for violation of Civil Code section 2923.5, second cause of action for violation of Civil Code section 2923.7, seventh cause of action for violation of Civil Code section 2924.12, and ninth cause of action for unfair business practices, alleged in plaintiff...

Excerpt: ...e Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of 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....

Excerpt: ... for damages or issue of duty. Code Civ. Proc. § 437c(f)(1). The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries this burden, the burden shifts to opposing party to show the 5 existence of a triable issue of material fact. Id. The trial court views the supporting evidence, ...

Excerpt: ...aswell v. AG Seal Beach, LLC, et al (2010) 189 Cal.App.4th 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. It is the petitioner that carries this initial burden of proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. Engalla v. Permanente Medical ...

Excerpt: ...overruled. Ruling on Motion Respondent County of Placer moves for summary judgment with respect to the claims set forth in petitioner's verified petition for alternative and peremptory writ of mandate and complaint for declaratory and injunctive relief. Alternatively, respondent requests summary adjudication. Summary judgment may be granted where there is no triable issue as to any material fact, and moving party is entitled to judgment as a matt...

Excerpt: ... 995, 999. Defendants contend that the applicable statute of limitations bars plaintiff's action. Plaintiff's claims in this action are governed by the limitations period set forth in Government Code section 945.6(a), which states: Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (c...

Excerpt: ...ghth and ninth causes of action alleged by plaintiff Albert Ristau, as successor trustee of the Wright 1990 Trust, on the grounds that the Wright 1990 Trust cannot assert elder abuse pursuant to Welfare and Institutions Code section 15610.30. A party may demur to a complaint 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...

Excerpt: ...e parties' settlement agreement filed by defendant Kila Tahoe LLC (“Kila”). In the prior motion, Kila sought to compel SNP to participate in binding mediation with the Honorable Fred K. Morrison (Ret.) of JAMS. SNP opposed the motion, arguing that the court could not modify the terms of the settlement agreement and compel SNP to participate in binding mediation with anyone other than Donald Person, or anyone to whom SNP did not expressly agre...

Excerpt: ...Clear Lake Riviera Community Association v. Cramer (2010) 182 Cal.App.4th 459, 473. However, in Clear Lake, the Court of Appeal analyzed a judgment for injunctive relief after trial, not a preliminary injunction requested pursuant to Code of Civil Procedure section 526(a). Plaintiffs fail to establish that the Clear Lake test applies for the purpose of this motion. In determining whether a preliminary injunction should be granted, the court must ...

Excerpt: ... Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's 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 to be true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The court assumes the truth of all facts prop...

Excerpt: ...ils to establish that the Release is not reasonably subject to dispute, and/or is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Further, it is unclear, for the purposes of the demurrer, that the Release must apply to plaintiff's claims, which are based on defendant's alleged actions in barring plaintiff from the subject premises, setting forth ambiguous conditions regarding plaintiff's u...

Excerpt: ...it. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180. However, where extrinsic fraud or mistake exists, or where the judgment is facially void without resort to extrinsic evidence, the motion may be made at any time. Id. at 181. In this case, default judgment was entered against defendant based on the proof of service filed October 30, 2007. The proof of service indicates that defendant was served by substituted service at her dwelling house or...

Excerpt: ...ry Restaurants, Inc. and The Cheesecake Factory Incorporated move for judgment on the pleadings as to plaintiff's complaint in this action. A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time for demurrer has expired. Code Civ. Proc. § 438. The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. The complaint in this action alleges an enf...

Excerpt: ...ollows: 1. Enjoining defendants from using any recipe obtained from plaintiffs that looks like plaintiffs' menu offerings of an Asian vegan nature, and specifically the items photographed and attached to plaintiffs' second amended complaint; 10 2. Enjoining defendants from offering for sale the menu items photographed and attached to plaintiffs' second amended complaint anywhere in Placer County; 3. Enjoining defendants from advertising for sale ...

Excerpt: ...th the current action. The motion is made pursuant to Code of Civil Procedure section 403, which states: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are...

Excerpt: ...against the HOA in plaintiffs' first amended complaint. A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time for demurrer has expired. Code Civ. Proc. § 438. 7 The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. The HOA contends that exculpatory provisions within the CC&Rs bar plaintiffs' claims against it. Specifically, Section 5.18 o...

Excerpt: ...f action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal 5 sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of 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 ...

Excerpt: ...583.310 based on the failure to bring the action to trial or otherwise seek judgment within five years of commencement. Defendant and cross‐complainant Centex Homes, and dismissed intervenor Lexington Insurance Company filed responses to the OSC, which the court has considered. Code of Civil Procedure section 583.310 provides, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” The ...

Excerpt: ...olicy in favor of arbitration that is frequently approved and enforced by the courts. Madden v. Kaiser Foundation Hospitals (1976) 8 17 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1405. “A strong public policy favors the arbitration of disputes, and doubts should be resolved in favor of deferring to arbitration proceedings.” Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Laswell v. AG Seal Beach, LLC, supra,...

Excerpt: ...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, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. Plaintiffs' complaint in this action alleged five causes of action: (1) violatio...

Excerpt: ...e 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. 6 Based upon review of the plaintiff's application, the court finds pursuant to Code of Civil Procedure section 483.010 that plaintiff has established the probable validity of the claim upon which the attachment is based, and that attachment is not sought for an improper purpose. Plaintiff is grante...

Excerpt: ...ained. Ruling on Motion Defendant Sunworks, Inc. moves for summary judgment and/or summary adjudication as to the first amended complaint filed by plaintiff Douglass Stiegmann. Summary judgment may be granted where there is no triable issue as to any material fact, and moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). The party seeking summary judgment bears the burden of showing there is no triable issue of mat...

Excerpt: ... 3.350(a)(1)(A). The notice does not contain the captions of all cases sought to be consolidated. Cal. R. Ct., rule 3.350(a)(1)(B). The notice was not filed in each case sought to be consolidated. Cal. R. Ct., rule 3.350(a)(1)(C). The motion does not include a proof of service. Cal R. Ct., rule 3.350(a)(2)(C). Counsel for defendant U.S. Bank National Association (“U.S. Bank”) states that their office was never served with the motion. It appea...

Excerpt: ...ct of terminating sanctions, courts do not impose such a sanction lightly. Upon careful review of the moving papers and the court file, the court determines that terminating sanctions are appropriate in this instance. Defendant served plaintiff Kuldip Bains with discovery requests, including interrogatories and requests for production. Plaintiff failed to serve any responses. Defendant moved to compel responses which motion was unopposed and gran...

Excerpt: ... the 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 the court's review of the plaintiff's application, and the declarations submitted in support of the application, the court finds pursuant to Code of Civil Procedure section 483.010 that plaintiff has established the probable validity of the claim upon which the attachment is based, and...

Excerpt: ...iff's complaint joins several separate causes of action, including both local and transitory claims, the transitory action controls as to venue. Central Bank v. Superior Court (1973) 30 Cal.App.3d 913, 917‐ 918. Transitory actions are subject to the general rule of venue that the action be tried in the county of defendant's residence. Under Code of Civil Procedure section 395(a), “[e]xcept as otherwise provided by law and subject to the power...

Excerpt: ...iff's complaint joins several separate causes of action, including both local and transitory claims, the transitory action controls as to venue. Central Bank v. Superior Court (1973) 30 Cal.App.3d 913, 917‐ 918. Transitory actions are subject to the general rule of venue that the action be tried in the county of defendant's residence. Under Code of Civil Procedure section 395(a), “[e]xcept as otherwise provided by law and subject to the power...

Excerpt: ...Proc. § 2030.220(a). “If an interrogatory cannot be 3 answered completely, it shall be answered to the extent possible.” Code Civ. Proc. § 2030.220(b). The HOA's responses to form interrogatory Nos. 4.1, 12.1, 12.2, 12.3, 16.1, 16.2, 16.3, 16.7, 16.8, 16.9 and 17.1 are insufficient as the HOA does not respond completely to each interrogatory. The HOA shall serve further verified responses to the subject interrogatories on or before July 12,...

Excerpt: ...the Alameda County litigation in connection with the instant motion. Based on the evidence provided, the court cannot determine that there are common questions of fact or law in the two actions, that the convenience of the parties, witnesses and counsel will be promoted by the transfer, or that there is a risk of inconsistent rulings if the transfer is not ordered. Plaintiffs' request that the causes of action in the cross‐complaint be stayed i...

Excerpt: ...overruled. Ruling on Motion Intervenor Iana Shumeiko (“Intervenor”) moves to expunge the lis pendens recorded by plaintiff in connection with this action. A party may move to expunge a lis pendens on the grounds that the complaint does not contain a real property claim, or on the grounds that claimant has not established by a preponderance of the evidence the probable validity of any real property claim. Code Civ. Proc. §§ 405.31, 405.32. A...

Excerpt: ... therein. Plaintiff's objection to defendant's reply brief is overruled. Defendant BBV Profit Sharing Plan, a 401 K Deferred Compensation Retirement Plan (“BBV”) demurs to plaintiffs' second amended complaint. A party may demur to a complaint 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 plaintiff's...

Excerpt: ...ode Civ. Proc. § 2030.220(b). Plaintiff's responses to form interrogatory (employment) Nos. 210.2, 210.3 and 212.6, and special interrogatory Nos. 4, 12 and 26 are insufficient as plaintiff does not respond completely to each interrogatory. Plaintiff shall serve further verified responses to form interrogatory (employment) Nos. 210.2, 210.3 and 212.6, and special interrogatory Nos. 4, 12 and 26, on or before July 12, 2019. The motion is otherwis...

Excerpt: ...ing interest will be prejudiced if the record is not sealed, (4) the sealing of the record is narrowly tailored, and (5) there are no less restrictive means to achieve the overriding interest. Cal. R. Ct., rule 2.550(d). Defendant moves to seal Exhibit F to the appendix of exhibits in support of defendant's motion for summary judgment/adjudication on the grounds that the exhibit contains personal compensation and benefits information relating to ...

Excerpt: .... 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. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. As a preliminary matter, pl...

Excerpt: ... a deposition subpoena duces tecum where the records sought are not within the permissible scope of discovery. In this case, plaintiff objects to the subpoena on the grounds that it seeks documents in violation of plaintiff's right to privacy in her financial affairs. A right of privacy exists as to a party's confidential financial affairs, even when the information sought is admittedly relevant to the litigation. Cobb v. Superior Court (1979...

Excerpt: ...y Responses Defendant's motion to compel further discovery responses was continued by stipulation of the parties to July 5, 2019, at 8:30 a.m. in Department 31. Motion for Leave to Amend Complaint Defendant Granite Financial Solutions, Inc. dba Granite Data Solutions' request for judicial notice is denied. Plaintiff's motion for leave to amend complaint is denied. Plaintiff moves for leave to file an amended complaint in this action to add three ...

Excerpt: ...onditional settlement of the action with plaintiff on or about December 3, 2019. Defendant made three payments of $1,762.60 each before requesting in writing that he be permitted to skip the payment due in March 2019 because of a change in jobs. Plaintiff apparently did not respond to this request. Thereafter, on April 3, 2019, defendant informed plaintiff that he would have funds available for his next payment on April 12, 2019. Plaintiff also d...

Excerpt: ...rdingly, the dismissal may be vacated to permit entry of judgment pursuant to the terms of the settlement. The motion to vacate dismissal is granted. The motion to enter judgment in the amount of $9,416.30 is denied. In ruling on plaintiff's prior motion to enter judgment, the court noted errors in plaintiff's calculations. Plaintiff's current motion does not acknowledge the court's prior ruling, or correct the errors. Plaintiff is not entitled t...

Excerpt: .... Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. Defendants' motion is granted with leave to amend. The complaint alleges an enforcement action under the Private Attorneys General Act of 2004, California Labor Code sections 2698 et seq. (“PAGA”) to recover civil penalties for applicable violations occurring “at any time between one year prior to the filing of this complaint until judgment”. (Complaint at 1:4‐12.) Plaint...

Excerpt: ...proper. See Deyo v. Kilbourne (1978) 84 Cal.3d 771, 783. Plaintiff's responses to form interrogatory Nos. 8.6, 8.7 and 17.1 are non‐responsive. Plaintiff fails to state the dates he did not work and for which he lost income, or the manner in which he calculated the total income he alleges he lost. Further, plaintiff's responses to each request for admission were not unqualified admissions, as he denied request Nos. 2‐11. In response to specia...

Excerpt: ...rring to arbitration proceedings.” Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Laswell v. AG Seal Beach, LLC, supra, at 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. Defendants in this case do not dispute the existence of an arbitration agreement, but argue that plaintiffs have waiv...

Excerpt: ...rial conference, and July 8, 2019, trial date set in Case No. S‐CV‐39027 are vacated. The October 18, 2019, mandatory settlement conference, October 25, 2019, civil trial conference, and November 4, 2019, trial date set in Case No. S‐CV‐40015 shall remain as set for the consolidated actions. Motion to Compel Plaintiffs' Responses to Discovery Defendants' motion to compel plaintiffs' responses to form interrogatories, special interrogatori...