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...