Excerpt: ...erson, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, . . .” It is unclear what duty Petitioner is seeking to compel Respondent to perform. The relief sought in Petitioner's petition is as follows: “[a] peremptory Writ of Mandate be issued to direct Respondent to not count any ballots from the City of Menifee in the November 3, 2020 consolidated election per Election...

Excerpt: ...tories. The requests were served on 2/4/21, and defendants have not responded. Defendants do not deny they have failed to respond, but argue in their opposition that the ill health of defendant Eshak is the basis for the failure to respond. As such, the motions are granted. Verified responses, without objection, are to be provided within 30 days. Since no monetary sanctions are sought, the only remaining issue is whether to impose the requested t...

Excerpt: ...'s dismissal of the cross‐complaint. Plaintiff now moves for attorney fees of $16,980 contending that Defendant dismissed his cross‐ complaint in light of the antiSLAPP, and asserts that it was meritorious. The trial court loses jurisdiction to rule on the anti‐SLAPP motion if the plaintiff voluntarily dismisses the action or causes of action at issue. The court only retains limited jurisdiction for ruling on attorney's fees and costs. (Law...

Excerpt: ...t. (Cross‐Compl. ¶¶11‐12, 34, Ex. “2.”) Cross‐Complainants allege that they performed all conditions required except those that were excused or prevented. (Cross‐Compl. ¶35.) It is alleged that Cross‐ Defendants breached the contract, and harmed CrossComplainants. (Cross‐Compl. ¶¶35, 36.) In addition, this cause of action incorporated by reference all the general allegations indicating breaches occurred. (Cross‐Compl. ¶¶1...

Excerpt: ...usheen v. Cohen (2006) 37 Cal.4th 1048, 1055.) Code of Civil Procedure section 425.16 provides a two‐step test in determining whether a cause of action constitutes a SLAPP. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Code Civ. Proc., §425.16(b)(1).) First, the defendant must make the “threshold showing” that the challenged cause of action arises from “protected speech or petition activity.” (Ibid.) “[T]he statutory phrase ‘caus...

Excerpt: ...seeking the deposition has the burden. In Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, the court held that a plaintiff cannot go up the corporate hierarchy without seeking discovery from lower level employees involved in the everyday corporate operations. (Id. at 1287.) To allow these depositions before lower level discovery is conducted would allow discovery abuse and harassment. (Id.) Unfortunately, neither side provide...

Excerpt: ...ty for the 2014 Sentra to experience these conditions, but willfully refused to repurchase the Subject Vehicle despite knowledge that it was defective. The requests for production are limited to the 2014 Nissan Sentra and are not overbroad or unlimited in time of scope. Defendant should be ordered to produce responsive documents. The motion is granted as to requests number 35‐45 and 50. Requests nos. 46 through 49 pertain to documents regarding...

Excerpt: ...t by such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in absence of a written agreement so to do executed prior to the injury.” The court found that the demurrer must be sustained to the cross‐complaint under Labor Code §3864 as the case is similar to the situation in Up‐Right, Inc. v. Van Erickson (1992) 5 Cal.App.4th 579, 582. EWMD cited multiple cases ...

Excerpt: ... run once the plaintiff “has notice or information of circumstances to put a reasonable person on inquiry.” (Id. at 1110‐1111.) Defendants contend that the dates asserted in the FAC make clear that Plaintiff knew of the trespass to chattels and negligence cause of action in 2014. The statute of limitations for a trespass to chattels claim is three years from the date of trespass. (CCP §338(c).) The statute of limitations for negligence is ...

Excerpt: ...star figure (time reasonably spent by each biller multiplied by an hourly rate that is reasonable for each biller). (Serrant v. Priest (1977) 20 Cal.3d 25, 48.) In exercising its discretion, the Court may consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney fee award. The hourly rate sought by Plaintiff is $600 per hour for each of two attorneys: Timothy F. Fatone of the Law Office...

Excerpt: ...n to Trinity's demurrer to the original complaint. (See Page 3 of 5 Request for Judicial Notice, Exhibits 1 through 5.) The court grants the request as to these documents. The court may take judicial notice of the existence of recorded documents and their legal effect, the court's own records and the Executive Order under Evidence Code section 451 and 452. (See also Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1...

Excerpt: ...ests judicial notice of the complaint and FAC in the present case, which are granted under Evid. Code §452(d). Moving party also requests judicial notice of images from Google Earth and annotated images from Google Earth allegedly showing the number of solar panels installed at the subject property. Judicial notice of these documents is denied. (“[A]lthough it might be appropriate to take judicial notice of the existence of the Web sites, the ...

Excerpt: ...shall be preserved for appellate review.” (CCP §437c(q).) Only PODS filed evidentiary objections, all of which are sustained. PODS met its burden of proof to show that, with regard to the shipment in question, it was acting as the “shipper.” Customers pay PODS to ship PODS containers containing customers' items. “Shipper means a person who tenders property to a motor carrier or driver of a commercial motor vehicle for transportation in i...

Excerpt: ...reme Court recognized the pervasive risk in operating a motor vehicle while intoxicated because it combines “sharply impaired physical and mental faculties with a vehicle capable of great force and speed, [which] reasonably may be held to exhibit a conscious disregard of the safety of others.” (Id. at 896‐897.) There, it was alleged in the complaint that defendant was an alcoholic, regularly drove under the influence of alcohol, had previou...

Excerpt: ...on is the latter. Moving party has not established excusable inadvertence, surprise, or mistake. First, service was made on Defendant's registered agent of service of process, Terry Chilcoat, via personal service. Defendant is not attacking the manner of service. However, West provides no explanation as to why Chilcoat did not provide the summons and the FAC to Defendant or notify hm of the service. Second, West does not deny knowledge of the law...

Excerpt: ... scope of all subject subpoenas to exclude medical information concerning substance abuse, gynecological, and, HIV/sexually transmitted diseases. This motion addresses fourteen subpoenas issued by Defendants for Plaintiff's medical records including psychological records from ten of Plaintiff's health care providers/insurers. Specifically, Defendants are seeking all medical/insurance records, which would potentially include sensitive medical info...

Excerpt: ...he employer, Defendant has unilaterally qualified every response that because it is not the employer of Plaintiff it cannot respond, has insufficient information and/or cannot produce responsive documents. These responses are improper and further are ordered. Plaintiff has alleged in her Complaint that Defendant is the employer of Plaintiff. (Complaint ¶ 3‐ Defendant was added as Doe 1.) While Defendant disputes this allegation, it is not a pr...

Excerpt: ...o the filing as an impermissible sur‐reply. Defendants are correct that court did not authorize the parties to file supplemental briefing for the continued hearing dates. The general demurrer to the 2nd, 5th, 6th, 8th and 9th causes of action is sustained without leave to amend; The demurrer is overruled as to the 7th cause of action. 10 days leave to answer. Demurrer for Uncertainty A special demurrer lies where a pleading is uncertain, ambigu...

Excerpt: ...ry and proper, when the facts giving rise to the amended allegations were discovered and the reasons why the request was not made earlier. There is no declaration of counsel, and, as a result, it is not clear what Plaintiff is seeking to amend. Is it merely to substitute the plaintiff? If so, it is unclear why K Hovnanian and First Residential oppose the motion—they were dismissed after the court sustained demurrers in March 2020. Generally, th...

Excerpt: ... Judgment, (3) December 2, 2020 Order in the present action, (4) Order granting Lieberg's Request to be Relieved as Counsel, (5) Substitution of Attorney, and (6) Order Granting Dismissal of bankruptcy case. These documents may be judicially noticed pursuant to Cal. Evid. Code §452(d), which permits judicial notice of court records. However, “although the existence of a document may be judicially noticeable, the truth of statements contained i...

Excerpt: ...this section of the Evidence Code cannot be taken of documents prepared by a private person, which are merely on file with state agencies. (See People v. Thacker (1985) 175 Cal.App.3d 594, 598.) Exh. 2 (Certificate of Status): The request is granted. The court may take judicial notice of “Official acts of the legislature, executive, and judicial departments of…any state of the United States.” (Evid. Code, §452(c); Fellom v. Adams (1969) 27...

Excerpt: ...ract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1031.) A contact will be enforced if it is sufficiently definite for the court to ascertain the parties' obligations and to determine whether there has been a breach. (Bustamante v. Intuit Inc. (2006) 141 Cal. App. 4th 199, 209.) To plea...

Excerpt: ... the records of any court of record, a lower court's unpublished decision made under New York law will not aid the court in resolving the present demurrer. (See Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569.) Plaintiff's request that the court take judicial notice of various articles obtained from the Internet (Exhibits A‐E) is denied. The court accepts as true Plaintiff's allegation in the FAC that the insurance industry was a...

Excerpt: ...ended claim and rejection notice. The court also takes judicial notice of Plaintiff's filing of her complaint with the U.S. District Court on 6/6/19. Plaintiff submitted a claim on 3/27/19, and an amended claim on 4/30/19. District's notice, dated 6/19/19, indicates that the District rejected the claim on 6/11/19. The dispute is essentially whether 6/11/19 or 6/19/19 is the controlling date. Government Code §912.4(a) merely requires the board to...

Excerpt: ...ossell filed a Supplemental Declaration on 3/2/21, and plaintiff filed his opposition on 3/10/21. This tentative ruling addresses only the request on behalf of Wayne Siggard. The motion of defendant Wayne Siggard for his post‐appeal attorney's fees is granted in the amount of $11,250.00. The court finds that the hourly charge of $250.00 per hour is reasonable and that a total of 45 hours of attorney time was reasonably incurred. The declaration...

Excerpt: ...privileged information “that is relevant to the subject matter involved…” (Code Civ. Proc., §2017.010.) It is discoverable if it either would be admissible evidence or “appears reasonably calculated to lead to the discovery of admissible evidence.” Page 3 of 6 Doubts as to relevance should generally be resolved in favor of permitting discovery. (Id.; see Williams v. Sup. Ct. (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 542.) Documents ...

Excerpt: ...ey contend they are entitled to fees pursuant to CCP § 2033.420 as Plaintiff failed to admit that the FEHA claims were time barred. In actions brought under FEHA, “the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees, except where the action is filed by a public agency or a public official, acting in an official capacity.” (Gov. Code § 12965(b).) It has been the ...

Excerpt: ... 310‐11 [judicial notice of release and reinsurance contract].) Plaintiff's Opposition Request for Judicial Notice Plaintiff requests that the court take judicial notice of orders issued in three lower state courts in North Carolina, Nevada and Ohio. (Exhibits A, C‐D), as well as a transcript of a proceeding in New Jersey state court (Exhibit B). The request is denied. While the court may certainly take notice of orders issues in any court of...

Excerpt: ...d on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).) Only TQL filed evidentiary objections, all of which are overruled. Motion A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (C.C.P. § 437c(p)(2...

Excerpt: ... specificity.” However, there is no breach of contract action alleged so, the requirement is inapplicable. Uncertainty The Second Amended Complaint in this case is a prime example of an uncertain complaint. Plaintiff has not clearly alleged the conduct engaged in by the specific Defendants to support the causes of action alleged in the SAC. There are very few factual allegations, and a lot of references to statutes, which are not connected; the...

Excerpt: ...ations of the second to fourth causes of action. The court grants the request to amend the first cause of action since defendants' demurrer argues that the allegations in the second to fourth causes of action are merely negligence claims already included in the first cause of action. As to the second cause of action, the claim for negligent infliction of emotional distress fails because no such separate tort is recognized in California; the claim...

Excerpt: ...icularity." (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809; Searcy v. Hemet Unified School District (1986) 177 Cal. App.3d 792, 802.) The County argues that Plaintiff' s complaint against the does not, however, contain facts particularly establishing the existence of any statutory or other type of liability it. This argument lacks merit. The elements of a civil action for false arrest are as follows: (1) That Defendant arrested Pla...

Excerpt: ...onse and produce the responsive documents. RFP No. 2: Any and all documents referring or relating to your investigation of the Incident. Response: None. This response is not code‐compliant. Although in her Declaration Devine indicates that she searched for the documents and that the documents may have been lost during a recent move, the response does not indicate that a diligent search and reasonable inquiry were made or explain the reason for ...

Excerpt: ...zation of here medical condition to obtain state benefits, as well as to calculate plaintiff's economic damages. The court evaluates the documents sought under the narrow privacy rights standard of whether the documents are directly relevant and, even if directly relevant, the balancing of whether plaintiff's privacy rights are outweighed by Target's need for the discovery. Target has failed to demonstrate that its overbroad discovery requests ar...

Excerpt: ...e IME depends on Plaintiff giving genuine, unrehearsed answers to Dr. Filanosky's questions. (Motion, Dec.Traver ¶8.) While Plaintiff may have requested the test questions prior to the IME, Plaintiff has not made this particular argument in the Opposition and expressly states in the Opposition that he is not asking for the tests ahead of time. (Oppo. p. 4:10.) Johnson's assertion that Plaintiff's responses to questions must be genuine and unrehe...

Excerpt: ...he SAC, to which Defendant did not demurrer. “Once filed, an amended pleading making substantive changes supersedes the original.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial, §6:688 (Rutter Group 2020).) So, the real issue is whether substantive changes were made between the TAC and the SAC. Defendant does not point to any. Accordingly, there is no indication that the filing of the TAC is improper as to this Defendant. In supplem...

Excerpt: ...ology, Inc v. State of California (2005) 129 Cal.App.4th 887, 901‐903.) Promissory estoppel has been applied to actions by a general contractor to recover damages incurred as a result of its reasonable reliance on a subcontractor's mistaken bid. (C&K Engineering Contractors v. Amber Steel Co., supra, 23 Cal.3d at 7; Drennan v. Star Paving Co. (1958) 51 Cal.2d 409, 413‐414.) “This principal is applicable to a proposed subcontractor (promisor...

Excerpt: ...ions in the complaint must be accepted as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Plaintiff alleges that its insured owned the Quality Inn that was damaged in the fire. (SAC, ¶4) and that the fire started in Fire Origination Property, which was owned, maintained and controlled by Caltrans. (Id at ¶9.) Plaintiff asserts that the fire occurred because Caltrans deliberately designed, constructed, opera...

Excerpt: ...rmance cause of action is premised on an alleged option to purchase attached to a commercial lease agreement. (Exhibit A to the Notice of Errata.) Plaintiff has not provided any legal authority that an option to purchase is the same as an installment land sale contract/real property sales contract as contemplated by Civil Code § 2985. There is no contract to purchase property between the parties. Rather Plaintiff is seeking to enforce an option ...

Excerpt: ...vocable license; (3) estoppel; (4) breach of contract; (5) quantum meruit; and (6) specific performance. Plaintiff's complaint, at its core, seeks to enforce agreements that are unenforceable with a public entity in the absence of City Council approval. Plaintiff's opposition fails to demonstrate any approval by the City Council of his alleged oral agreement and this court cannot force the City to abide by the terms of an agreement it did not app...

Excerpt: ...Defendants also represented in their responses that they would provide supplemental objections and responses once Plaintiff complied. On 7/17/20, the parties subsequently met and conferred on the discovery with Plaintiff noting it would be forced to file motions to compel if Defendants did not provide supplemental responses. (Exhibit E to Jolly Dec. in support of the Opposition.) Defendants' responded the next day but the parties did not speak un...

Excerpt: ...ceable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) The County requests the court take judicial notice of two exhibits: 1) “Ruling from Smelser I” [RIC 2003097] and the original petition plus attachments filed in Smelser I; and, 2) “Riverside ...

Excerpt: ...o the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” C.C.P. § 664.6 is inapplicable because the court lacks jurisdiction to apply C.C.P. § 664.6 unless the dismissal is set aside. Once a lawsuit is dismissed, the court only has jurisdiction to enforce a settlement under C.C.P. § 664.6, if the parties ...

Excerpt: ...o sufficiently identify the cause of action which is the subject of the motion and instead improperly seeks summary adjudication of “issues.” Page 3 of 5 To the extent Cross‐Complainant seeks summary adjudication of the conversion cause of action, Cross‐Complainant's own evidence shows triable issues of fact as to each element of conversion. A motion for summary judgment seeks adjudication as to the entire action, and the moving plaintiff...

Excerpt: ... 283, 289. ) The right to privacy is not absolute and even private information can be disclosed in some circumstances. The court must carefully balance the right of privacy against the need of discovery. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855‐856.) How compelling the discovery need must be will depend on the importance of the privacy interest involved. (Davies v. Superior Court (1984) 1412, 1432.) Personal information can be ordered...

Excerpt: ... reduced to the rates applied to the Knight attorneys as follows: • Wirtz: $550 • Underwood: $250 • Rotman: $300 • Barns: $300 • Chavez: $200 • Evans: $200 • Munoz: $150 • Chambers: $100 Defendant argues that the excessive number of attorneys indicates overstaffing and duplication. A court may reduce fees where it is unreasonable to have so many attorneys staffing a case in a non ‐complex case. (Morris v. Hyundai Motor America (...

Excerpt: ... & Grill (2005) 36 Cal.4th 224, 237.) Foreseeability of the risk does not necessarily turn on whether the same type of activity or event already occurred on the premises. Rather, the issue is whether, in light of the all the facts and circumstances, the landlord had reason to anticipate the general character of the event or harm, not its precise nature or manner of occurrence. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 129.) Th...

Excerpt: ...laint might be barred.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324.) For a Song‐Beverly Act violation, the statute does not include its own statute of limitations. (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1305.) Accordingly, Commercial Code §2725 governs the applicable statute of limitations. (Id. at 1305‐1306; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 132.) Section 2725 states ...

Excerpt: ...�452(d), the court can properly take judicial notice of the complaint as it is a court record. Opposition The Opposition's Memorandum of Points and Authorities is 32 pages long – more than double the allowable 15 pages under CRC 3.1113(d). A memorandum exceeding the permissible page limits “must be filed and considered in the same manner as a late‐filed paper,” meaning the court in its discretion may refuse to consider it in ruling on the...

Excerpt: ...late claim can be made, but it must be submitted no later than one year after the accrual of the cause of action. Government Code § 911.4(b). “In actions for damages against local public entities, the claims statues require timely filing of a proper claim as condition precedent to the maintenance of the action. Compliance with the claims statutes is mandatory; and failure to file a claim is fatal to the cause of action. City of San Jose Superi...

Excerpt: ... costs. This language does not equate to a promise to pay attorney's fees and costs on all claims as Plaintiff alleges. Rather, the language clarifies that the amount offered was not inclusive of any statutory attorney's fees that Plaintiff might be entitled to if determined to be a prevailing party. The cases cited by Plaintiff do not say otherwise. Prevailing Party CCP §1032(b) provides that “Except as otherwise expressly provided by statute...

Excerpt: ...not an abnormal response to the circumstances. (Thing v. La Chusa (1989) 48 Cal.3d 644, 667‐668.) Serious emotional distress exists if an ordinary, reasonable person would be unable to cope with it. (Id. at 668, fn 12.) Plaintiffs allege they were present at the scene of the incident when their father/husband fell. They allege they were “simultaneously aware of Defendant's wrongdoing and negligence allowing [Rodriguez] to walk unassisted desp...

Excerpt: ... Memorandum of Points and Authorities is 32 pages long – more than double the allowable 15 pages under CRC 3.1113(d). A memorandum exceeding the permissible page limits “must be filed and considered in the same manner as a late‐filed paper,” meaning the court in its discretion may refuse to consider it in ruling on the motion. (CRC 3.1113(g); CRC 3.1300(d).) The Court has exercised its discretion, and has read and considered the complete ...

Excerpt: ..., upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. A settlement in any action is a welcome resolution, because it is entered into voluntarily and not imposed on either party. Unfortunately, the present motion cannot be granted because there is no agreement on th...

Excerpt: ...he vehicle, and based on that allegation, contends that she is a purchaser under the Song Beverly Act. No authority has been presented that states that she cannot pursue a claim on this basis. However, if this is the basis of her action against the defendants, she will also be bound by the arbitration provision in the purchase agreement. Generally, the rule is that a nonsignatory to an arbitration agreement cannot be compelled to arbitration. Cro...

Excerpt: ... to arrange the examination by stipulation. (CCP §2016.040.) The burden is on the moving party to show (by declarations or other evidence) that the examinee's condition is “in controversy” in the action. (Weil & Brown, Civ. Proc. Before Trial (TRG 2020), Ch. 8I, §8:1556.) “Often, the pleadings will put a party's mental or physical condition “in controversy.” For example, a personal injury complaint may allege that plaintiff is sufferi...

Excerpt: ...us franchise owner of the restaurant where Plaintiffs worked. Plaintiffs further argue that even if they executed the Arbitration Agreements, the Agreements are both procedurally and substantively unconscionable and thus unenforceable. As to substantive unconscionability, Plaintiffs specifically argue that the Arbitration Agreements do not provide for adequate discovery. Plaintiffs also filed an objection and motion to strike the evidence offered...

Excerpt: ...s exist for the revocation of the agreement; or (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. A proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Freeman v....

Excerpt: ...responding party from that waiver. (Code Civ. Proc., §§2030.290(a), 2033.280(a), 2031,300(a).) As such, in regard to the discovery at issue, Plaintiff's objections are deemed waived. In a motion for further responses to special interrogatories, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. (Coy v. Superior Court of Contra Costa County (1962) 58 Cal.2d 210, 220‐221.) Most of Plai...

Excerpt: ...to be overruled when addressed to inconsequential matters, the facts are within the knowledge of the defendant or ascertainable in discovery, or not dispositive of one or more causes of action. (Id.) The complaint does contain both references to implied warranty for fitness (Complaint ¶31) and merchantability (Complaint ¶32). The Song‐Beverly Act defines implied warranty of merchantability as: “(1) Pass without objection in the trade under ...

Excerpt: ...the deposition was to take place on 9/11/20, or 9/30/20. Thereafter, at an informal discovery conference on 9/25/20, the court amended its order to allow the deposition take place on 10/14, 10/21, 10/28, or 10/29. Plaintiff moves for terminating sanctions against Defendant as she failed to appear for any of these seven dates. She further requests monetary sanctions of $9,000. Defendant contends that her counsel has not received the motion, and di...

Excerpt: ...opment, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118.) Trinity also seeks judicial notice of the legislative status of AB‐828 as of 11/13/20, which forms the basis of plaintiff's allegation that the foreclosure violated moratoriums on foreclosures. (Exhibit 8.) The request is granted. Trinity also seeks judicial notice of Governor Newsom's Executive Order N‐28‐20, signed March 16, 2020. (Exh. 9.) The Executive...

Excerpt: ...nst multiple defendants, including C.P.I. Properties, LP (erroneously sued as C.P.I. Properties, LLC) (“CPI”), Cerca Trova Restaurant Group Holding, Inc. (“Outback”) and Sunrise Restaurants, LLC dba Denny's Restaurant (erroneously sued as W.K.S. Restaurant Corporation dba Denny's Restaurant) (“Sunrise”). The City seeks to acquire property (Assessor Parcel Nos. 172‐420‐002 and 172‐420‐003) (the “Property”) by eminent domain...

Excerpt: ...l Stamen. Hence, the hearing was continued to 8/21/20. On 8/12/20, plaintiff Matthew Tye filed a Statement of Disqualification under Code of Civil Procedure section 170.3. As a result, the hearing of this motion was repeatedly continued while the Statement of Disqualification was being considered by the San Diego Superior Court. On 10/15/20, the San Diego Superior Court denied the disqualification and its ruling was filed on Page 4 of 6 10/23/20....

Excerpt: ...paragraphs 7 and 9 of the Complaint cause it to be included in the cause of action. The label of the cause of action names only defendant Binnquist. Defendant Laguna Hills' contention is without merit. Defendant Laguna Hills also contends the Complaint fails to identify the individuals who agreed to sign the change orders. It cites no authority in support of this purported requirement. Finally, defendant Laguna Hills contends Plaintiff failed to ...

Excerpt: ...ice is granted as to Exhibit A and denied as to all other requests. (Evid. Code § 452(c); and, Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569.) Continental's reply to request for judicial notice is denied. (Id.) Discussion The elements of a claim for breach of contract are “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom.” (Abdelhamid v....

Excerpt: ...ice is granted as to Exhibit A and denied as to all other requests. (Evid. Code § 452(c); and, Aquila, Inc. v. Superior Court (2007) 148 Cal.App.5th 556, 569.) Continental's reply to request for judicial notice is denied. (Id.) Discussion The elements of a claim for breach of contract are “(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom.” (Abdelhamid v....

Excerpt: ... (2008) 162 Cal. App. 4th 68, 82, fn 8.) Motion for Judgment on the Pleadings: A defendant may move for judgment on the pleadings if the court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action. (Cal. Code Civ. Code §438(c)(1)(b)(i) and (ii).) “A motion for judgment on the pleadings performs the same function as a general demurrer, ...

Excerpt: ...f $313.74 is denied. Plaintiff's Request for Judicial Notice Nos. 1‐15 is granted to the extent these records exist as part of a court record or file. They are not accepted as true matters which are inadmissible hearsay (unless the matters are indisputably true). (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97.) FCA's Request for Judicial Notice Exs. E, F & H is granted to the extent these records exist as part of a cour...

Excerpt: ...s, which includes injunctive relief, monetary damages, and in certain circumstances, exemplary damages and attorneys' fees. Civil Code §§ 3426.1‐3426.4. The UTSA preempts common law claims for misappropriation, this includes causes of action for conversion and negligence. K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 955. Common law claims that are “based on the same nucleus of facts as t...

Excerpt: ...d Complaint (“SAC”) and the City of Beaumont's Second Amended Cross‐Complaint (“SAXC”) are SUSTAINED WITH 20 DAYS LEAVE TO AMEND. Defendants' Request for Judicial Notice is granted as to the existence of the pleadings, but not as to the truth of the contents. Request for Judicial Notice Defendants' Request for Judicial Notice is granted as to the existence of the pleadings but, not as to the truth of the contents. (Evidence Code §452(d...

Excerpt: ...s and the Court that documents had been filed and served, but did not show on the Court's register of actions as either images or entries. Following the hearing, that situation was resolved. The Court now rules as set forth below. Supplemental Tentative Ruling of December 11, 2020 The documents filed in reply do not change the Court's Tentative Ruling of November 18, 2020. Defendants' evidentiary objections 4, 5, 6, 7, 8, and 9 are sustained (res...

Excerpt: ...ozner's request for sanctions. While the right to discovery is broad, there is a right of privacy. Article 1, section 1 of the California Constitution explicitly recognizes a right to privacy and California courts have recognized the right as supplying a qualified privilege to a discovery demand. “[T]he right to privacy protects the individual's reasonable expectation of privacy against a serious invasion.” Pioneer Electronics (USA), Inc. v. ...

Excerpt: ...ulation between Plaintiff and the K. Hovanian defendants. The TAC did not add the 9th cause of action for elder abuse. The elder abuse claim was pled in the Second Amended Complaint, to which Defendant did not demurrer. “Once filed, an amended pleading making substantive changes supersedes the original.” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial, §6:688 (Rutter Group 2020).) Defendant does not point to substantive changes made b...

Excerpt: ... Farm Fire contends Plaintiffs (Lazaro heirs) lack standing to challenge any determination made by it concerning the workers' compensation death benefits claimed by Ruiz on behalf of the Marcial heirs. The plaintiff must be the real party in interest as to the claim sued on “except as otherwise provided by statute.” (CCP §367.) The real party in interest is “the person who has the right to sue under the substantive law. It is the person wh...

Excerpt: ...mmary judgment as to Plaintiff Wide West Services under the Barton doctrine and as there are no damages identified as to this Plaintiff; and, 3) Grants summary judgment as to Plaintiff Valley and Mountain as there are no damages as to this Plaintiff and the claims are barred by the statute of limitations. Additionally, the Court declines to rule on Plaintiffs evidentiary objections. They are not objections to the evidence, but rather a separate s...

Excerpt: ...of the declaration. Objections 1 and 3‐8 are overruled. Objections 2 and 9 are sustained. Defendants object to evidence submitted by Plaintiff. Because Defendants fail to carry their initial burden, the burden never shifted to Plaintiff and Plaintiff's evidence was not considered. The Court declines to rule on Defendants' evidentiary objections. Discussion The elements of a negligence claim are: (1) legal duty owed to plaintiffs to use due care...

Excerpt: ...58.070 pursuant to Evid. Code §§1280 (record by public employee), 1531 (certification of copy for evidence), and 1532 (official record of recorded writing. The unopposed request for judicial notice is granted. Standing: Scheinker contends GAI lacks standing because the lease agreement contains four other parties who are not named in the Complaint and that they are indispensable parties. The rule is that plaintiff must be the real party in inter...

Excerpt: ...and that the State of Oregon issued a Salvage Certificate Title. (Compl., ¶16.) He alleges the subject vehicle was then bought and sold by each of the defendants between 2010 to 2018. (Id. at ¶19.) At some point, one of the owners altered the driver side airbag and seatbelt pretension system and added foam to the steering wheel to give the appearance that an airbag was present. (Id. at ¶ 29.) These allegations are sufficient to show that the s...

Excerpt: ...use of action for cancellation of instruments in the Cross‐Complaint is directed to Page 3 of 3 Omega Paving's petitioning activity. As to Carlisle's 5th cause of action for slander of title, the motion is moot. Carlisle dismissed that cause of action from the Cross‐Complaint. Omega Paving contends the act in furtherance of its right of petition is recording the mechanic's lien and the amended mechanic's lien, which form the basis of Omega Pa...

Excerpt: ... case, which is attached to the TAC as Exhibit C, states that judgment is rendered against “Cross‐defendants Marianne S. Hudack, and Larry J. Hudack, individually and as trustees of the Larry J. and Marianne S. Hudack Trust UTD July 3, 1997….” The Judgment also states that judgment is rendered against “Larry J. and Marianne S. Hudack Trust UTD July 3, 1997….” Under Portico Mgmt Group LLC v. Harrison (2011) 202 Cal.App.4th 464, 474, ...

Excerpt: ... case, which is attached to the TAC as Exhibit C, states that judgment is rendered against “Cross‐defendants Marianne S. Hudack, and Larry J. Hudack, individually and as trustees of the Larry J. and Marianne S. Hudack Trust UTD July 3, 1997….” The Judgment also states that judgment is rendered against “Larry J. and Marianne S. Hudack Trust UTD July 3, 1997….” Under Portico Mgmt Group LLC v. Harrison (2011) 202 Cal.App.4th 464, 474, ...

Excerpt: ...e carrier; 2) the judge presiding over the trial (Judge Holmes) refused to recuse himself under CCP section 170.3 or follow the proper procedure for considering such a challenge; 3) family trusts cannot be sued; and, 4) judgments against married couples as a unit are void. The Court previously determined the four basic claims made by Plaintiff in the SAC were not directed to the County and stated no basis for the County's liability. In the TAC, P...

Excerpt: ...h cause of action. First through third causes of action (breach of oral partnership agreement, specific performance, and quiet title): All three causes of action are based on plaintiff Chaffey's allegation of an oral agreement between the parties that plaintiff Chaffey take an interest in the subject property. Community property assets may be liable for the debts incurred by either spouse during the marriage. (Family Code §910). It is neither ne...

Excerpt: ...arns. There is a triable issue of material fact as to whether the assignment to Rescon was proper. Defendants failed to meet their initial burden regarding punitive damages. Defendants seek summary judgment, or in the alternative, summary adjudication of several contentions asserted by plaintiff Citrus El Dorado, LLC (“Plaintiff”) in the one cause of action for wrongful foreclosure of the third amended complaint (TAC) (i.e., Rescon is not lia...

Excerpt: ...on to compel as to special interrogatories, set one, special interrogatories 4‐6. Defendant Stephenson is Ordered to serve verified further responses to those special interrogatories within 20 days. Sanctions are imposed on defendant Stephenson in the amount of $1,539. The sanctions shall be paid to Plaintiffs within 30 days. Defendant Stephenson objects to the special interrogatories on a number of grounds. In particular, the Court notes the g...

Excerpt: ...udicial notice. Page 3 of 6 First Cause of Action – Violation of Civ. Code §2923.6(c) (failure to rescind foreclosure efforts after loan modification filed): If a borrower submits a completed first lien loan modification application at least five business days before a scheduled foreclosure sale, a notice of default shall not be recorded and a trustee's sale shall not be conducted while the application is pending. (Civ. Code § 2923.6(c).) A l...

Excerpt: ...aterial to the Court's analysis. The Court overrules MJB objections 1 and 2 to Plaintiff's evidence and sustains objections 3‐6. a. The complaint states a cause of action against MJB. Plaintiff has not alleged a breach of duty against MJB based on a theory of liability arising from an exception to the Federal Motor Carrier Safety Regulations (FMCSRs) that provides that a shipper who assumes the responsibility of loading becomes liable for the d...

Excerpt: ...ment to a pleading, leave to amend must be liberally, granted.” (Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 596.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010)184 Cal. App. 4th 1422, 1428.) However, leave to amend may be denied where inexcusable delay and probable prejudice to the opposing party is shown.” (Magpali v. Farmers G...

Excerpt: ... School District (the District) is a free charter school district that operates the Nuview Bridge Early College High School (Bridge High School). (Office of Administrative Hearings Clerk's Record (“AR”) 791.) Petitioner was hired by the District as a U.S. Government and Economics teacher at Bridge High School in August 2014. (AR 5.) As part of the class, Petitioner conducted debates on political issues. Petitioner generally received positive ...

Excerpt: ...lleges that the subject vehicle was then bought and sold by each of the Defendants between 2010 to 2018. (Id., at ¶19.) Plaintiff alleges that at some point, one of the owners altered the driver side airbag and seatbelt pretension system and added foam to the steering wheel to give the appearance that an airbag was present. (Id., at ¶ 29.) These allegations are sufficient to show that the subject vehicle was reconditioned, which constitutes a c...

Excerpt: ...cken. However, in support of the motion defendant merely cites to the elements of plaintiff Wolf's (“plaintiff”) causes of action, without explaining the manner in which the challenged words or phrases are improper. The complaint alleges facts regarding the breakdown of a business relationship with a family that has extended over 20 years. The allegations support the basis for a dissolution of the most recent venture together, as well as plai...

Excerpt: ...fs, the Court now DENIES the motion to strike. Defendant relies on outside evidence. The grounds for a motion to strike must appear from the pleading or from matters which the court may take judicial notice. (CCP §437.) Thus, the court does not consider the outside evidence. Plaintiff filed the Second Amended Complaint on 8/13/19, which was served by mail on the same day. Plaintiff did not submit the Third Amended Complaint (“TAC”) until 9/2...

Excerpt: ...was later vacated. Defendants subsequently re‐filed the motion on 8/31/20. This demonstrates that the original motion was withdrawn. (General Order 2020‐15, ¶7(c).) It does not preclude the filing of another motion. A court can grant a motion to quash even after the date set for production. (Slagle v. Superior Court (1989) 211 Cal.App.3d 1309, 1313.) There is overlap in this action and the Due action in time and the general nature of the all...

Excerpt: ... of limitations bars the breach of implied warranties, fraud and negligent repair causes of action. 1. Breach of Implied Warranties (1st and 2nd causes of action) Under Civil Code §1791.1, the implied warranty lasts for no less than 60 days and no more than 1 year of the sale. For a Song‐Beverly Act violation, the statute does not include its own statute of limitations. (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1305.) Accord...

Excerpt: ... of limitations bars the breach of implied warranties, fraud and negligent repair causes of action. 1. Breach of Implied Warranties (1st and 2nd causes of action) Under Civil Code §1791.1, the implied warranty lasts for no less than 60 days and no more than 1 year of the sale. For a Song‐Beverly Act violation, the statute does not include its own statute of limitations. (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1305.) Accord...

Excerpt: ...n he signed the Employment‐At‐Will and Arbitration Agreement (“Agreement”) requiring arbitration of the parties' disputes. The Agreement is Covered by the Federal Arbitration Act, 9 U.S.C. §§1 et seq., (the “FAA”) The Agreement is governed by the (the “FAA”.) The Agreement itself states it is governed by the FAA. (Sanchez decl., Exh. A [“Both I and the Company agree that any claim, dispute, and/or controversy that I may have a...

Excerpt: ...ce. The dismissal decision was not an abuse of discretion. Further, the Board did not violate the Brown Act in connection with the meeting concerning Petitioner's dismissal. Petitioner does not specify the statutory basis for the writ petition. The Petition states that Petitioner seeks a writ of administrative mandamus directing respondent Moreno Valley Unified School District (the “District”) to: (1) vacate its act of terminating Petitioner ...

Excerpt: ...laintiff's supervisor, Shirley Jackson, observed in July or August 2017, that Plaintiff did not take directions well, acted like she knew everything, and lied when questioned about case loan. (Ms. Jackson's Declaration, ¶ 4 and Exhibit 8.) By late September 2017, Ms. Jackson had observed Plaintiff's failure to focus on high priority cases, even though Plaintiff had been informed on numerous occasions to do so. (Ms. Jackson's Declaration, ¶¶ 7�...

Excerpt: ...sented by the motion. Judge Randall S. Stamen discloses that in or about 1992 and 1993, he was an associate attorney with Reid & Hellyer. Judge Stamen's past employment by that law firm will not affect his ability to be impartial. Page 3 of 3 The existence of the settlement agreement (Settlement Terms) is supported by the parties. Plaintiff's counsel, Jenna Acuff, declares that she prepared the draft settlement documents, and emailed them to Defe...