Excerpt: ...s that on July 24, 2016, she visited the Property to access the beach below the Property, known as Shelter Cove. Plaintiff alleges the walkway down to Shelter Cove gave way, causing her to fall down to the beach below, sustaining injuries. (Compl., ¶ 8.) On the date of her injury, Plaintiff was not a paying guest at Defendant's Property, but rather visited the Property to access the beach, where she planned to meet her friends. (Def.'s Separate ...

Excerpt: ...y moved for an award of attorneys' fees ($68,549.60) pursuant to the parties' Operating Agreement and Civil Code section 1717.1 By its terms, Civil Code section 1717 applies only to actions “on a contract” and to fees “which are incurred to enforce that contract.” (See Santisas v. Goodin (1998) 17 Cal.4th 599, 615.) Defendant, however, did not explain how the claims in the three versions of the complaint were “on the contract,” i.e., ...

Excerpt: ...ten or oral; and (3) is uncertain. A demurrer challenges defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests only the legal sufficiency of the pleading, and “[t]he facts alleged in the pleading are deemed to be true, however improbable they may be. [citation].” (Berg & Berg (2009) 178 Cal.App.4th 1020, 1...

Excerpt: ...t. Plaintiff alleges that Defendant had been drinking at the Cliffs' restaurant; that he was intoxicated at the time of the incident; and that Plaintiff and Defendant had an altercation prior to Defendant striking Plaintiff with his (Defendant's) vehicle. Plaintiff's complaint includes a claim for punitive damages against Defendant. Pursuant to Civil Code section 3295(c), Plaintiff now brings a motion for order allowing pretrial discovery of Defe...

Excerpt: ...or judgment on the pleadings. There is no opposition.1 Prior to initial hearing on this matter, the Court posted a tentative ruling (1) directing the parties to participate in a meaningful meet and confer as required by Code of Civil Procedure section 439(a); and (2) directing Capital One to submit a declaration confirming compliance with that section. At the hearing on July 17, 2018, the Court was informed that the parties had not yet met and co...

Excerpt: ... to enforce the judgment against Defendant through a wage garnishment. Defendant has filed a claim of exemption in which he reports (a) his gross monthly income as $2,000, and (b) deductions of $200 for required federal and state withholdings, and $50 for a wage garnishment filed by the Employment Development Department (“EDD”). In addition to the existing wage garnishment, Defendant reports that his net monthly expenses ($1,850) exceed his n...

Excerpt: ...st since 2007, and was misclassified as an exempt employee. The complaint alleges that each Defendant is the alter ego of the other. (Cmplt., ¶¶ 17‐18.) The individual Defendants Quinn and Nichols demur to the entirety of the complaint on the grounds that it does not state facts sufficient to constitute a cause of action; and also move to strike specific lines in the complaint which reference “Labor Code §§ 558, 558.1 and other.”1 Speci...

Excerpt: ...otion is nonetheless still denied. RULING Castlerock Development and K&M Holding Corporation (collectively, “Plaintiffs”) initiated this litigation on November 29, 2016, against the City of Atascadero (the “City”). A first amended complaint and petition for writ of mandate (“FAC”) was filed on January 31, 2017. The FAC challenges certain development impact fees imposed by the City in connection with Plaintiffs' development of 802 acre...

Excerpt: ...the general maritime Law. (FAC, passim.) Plaintiff alleges that on March 11, 2016, and while employed with the Port, he was injured in a fall while attempting to board a vessel moored at a pier. (FAC, ¶¶ 21, 23.) On February 14, 2017, Plaintiff filed a workers' compensation action with the California Workers' Compensation Appeals Board (“WCAB”) for recovery of compensation and benefits under California's Workers' Compensation Act (the “WC...

Excerpt: ...itutional rights when he refused to accept mental health treatment from Dr. Kang‐Elliott. Dr. Kang‐Elliott is a medical doctor and part‐time psychiatrist at CMC. Mr. Sohner is a correctional officer at CMC. Defendants bring this motion for summary judgment (“MSJ”) on the ground that there are no triable issues of material fact that (1) Plaintiff has failed to timely or properly file a Government Tort Claim and therefore is barred from b...

Excerpt: ... for Production of Documents (Set One) (“RFPs”), Special Interrogatories (Set One), and Form Interrogatories (Set One) on Defendant. On March 7, 2018, Jonathan Milder, Esq., Defendant's counsel, requested an extension of time to respond to the discovery request, which was granted through March 21, 2018. On March 21, 2018, Defendant served responses to the RFAs, Form Interrogatories, and Special Interrogatories, but failed to serve responses t...

Excerpt: ...ent's son, alleges he is also a current beneficiary. Respondent disputes this, contending Petitioner and Respondent's daughter are contingent/remainder beneficiaries. Petitioner alleges that Respondent breached her fiduciary duties by not following the asset allocation formula provided for in the Trust, which is a division between Marital and Family shares. The Family Share trust became irrevocable upon Jerry McKibben's death. The Trust held six ...

Excerpt: ...ey Damages and Indemnification was filed on November 29, 2017 (“Complaint”). Plaintiffs' first three causes of action were pleaded against Randy only, and Plaintiffs' fourth cause of action for indemnity was pleaded against Fidelity only. Fidelity demurred to the Complaint on the grounds that the fourth cause of action for indemnity was barred on its face by the statute of limitations. This Court granted Fidelity's demurrer with leave to amen...

Excerpt: ...�Defendants”). The Defendants may oppose the motions orally on the date of the hearing. (See Cal. Rule of Court, rule 3.1351(b).) No opposition has been received to any of Ken's motions. However, even when unopposed, the trial court is required to determine no dispute of material fact exists and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).) Ken alleges he is the owner of real property located a...

Excerpt: ...ded complaint (“FAC”) alleges it operates a retail jewelry store located at 734 Main Street, Suite 1, Cambria, California 93428. (FAC, ¶ 2.) Plaintiff alleges that on January 11, 2017, Plaintiff entered into a Customer Agreement (the “Agreement”) for the purchase and installation of a security alarm system with Defendant, which system included a police monitoring alarm, monitoring plan, security camera, a three‐year alarm warranty, qua...

Excerpt: ... Obispo. (Compl., ¶ 3.) Ms. Garrett was employed with Plaintiffs as Head of School at Eucasia's school, known as the Laureate School. (Compl., ¶ 6.) Plaintiffs further allege that Ms. Garrett formed Central Coast to “complete with Eucasia in the field of elementary education services.” (Compl., ¶ 8.) Plaintiffs further allege that Ms. Rowland is “responsible to some degree for the damages to the Plaintiff.” (Compl., ¶ 9.) Plaintiffs' ...

Excerpt: ...y, Coasthills has the initial burden to make a prima facie showing that there are no triable issues of material fact and that it is entitled to judgment as a matter of law. (Code Civ. Proc., §437c(c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) As the plaintiff, that burden includes a showing that there is no defense to the cause of action by proving each element of the cause of action which entitles it to judgment. (Code Civ....

Excerpt: ...cannot be repaired to the level of the express and implied warranties. The second amended complaint (“SAC”) includes one cause of action for violation of the Song‐Beverly Consumer Warranty Act (Act). (Civ. Code, § 1790 et seq., “the Act”). On February 13, 2018, one day before this lawsuit was set to go to trial, the Parties settled this matter after a mandatory settlement conference (“MSC”) with Defendant agreeing to pay Plaintiffs...

Excerpt: ...elope with a window that provided access to Plaintiff's personal information. The litigation was settled, and on October 12, 2017, the Court preliminarily approved the settlement. Plaintiff has now filed a Motion for Final Approval of Class Action Settlement and a Motion for Attorneys' Fees and Costs pursuant to Civil Code section 1788.30(c). (Cal. Rules of Court, rule 3.769.) There is no opposition. The settlement provides for a $35,000 administ...

Excerpt: ...mpons and fail to issue female inmates “sanitary napkins and/or tampons as needed”, in violation of equal protection, the California Constitution, and section 1265 of Title 15 of the Administrative Code. Plaintiff alleges one cause of action in her FAC and seeks injunctive relief and orders, as well as an accounting and repayment of money paid by female inmates. Plaintiff makes class allegations, and her proposed class is defined as “all pa...

Excerpt: ...ant to the parties' Operating Agreement (the “Agreement”) and Civil Code section 1717.1 Section 1717 provides in pertinent part: In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she i...

Excerpt: ... of oral contract between Plaintiff and Agenbroad; (3) breach of the implied covenant of good faith and fair dealing; and, (4) intentional infliction of mental and emotional distress. Plaintiff's FAC alleges that Plaintiff and Agenbroad were in a romantic relationship and, in early 2016 they decided to attend university and move in together. In January 2016, Plaintiff and Agenbroad entered into a written lease agreement with California West, Inc....

Excerpt: ...perty”). (Compl., ¶ 7.) The Premier Defendants1 allegedly acted as dual agents for Mr. Gunther, the seller of the Subject Property, and Plaintiff, the buyer. (Compl., ¶ 8.) Plaintiff alleges that on or about April 25, 2017, “defendants, falsely and fraudulently represented to Plaintiff that the property was in a condition to be developed and built upon, and that Plaintiff could build a house on the property as was his purpose...” (Compl.,...

Excerpt: ...e Court notes there is no declaration confirming Capital One satisfied the meet and confer requirement set forth in Code of Civil Procedure section 439(a). The Court directs the parties to participate in a meaningful meet and confer prior to 11:00 a.m. on Monday, July 16, 2018. Capital One is then to submit a declaration confirming the meet and confer and the results thereof by 1:30 p.m. that same day. The tentative ruling will be posted followin...

Excerpt: ...urt (Case No. NC053600). This action is an attempt to enforce that judgment, by setting aside a transfer of real property in Colorado under the Uniform Voidable Transactions Act (Civ. Code, § 3439, et seq.). On August 28, 2017, Plaintiffs propounded a first set of Special Interrogatories and Requests for Production on Matthew. After much back and forth regarding service of the discovery, Bryan filed a motion to compel Matthew to respond to the f...

Excerpt: ...possesses certain real property located at Nacimiento Reservoir subject to a grazing lease, which it used for the raising of livestock (the “Subject Property”). (Compl., ¶ 3.) Plaintiff alleges Batdorf owns real property adjacent to the Subject Property, identified as Assessor's Parcel No. 014‐011‐009 (the “Batdorf Property”). (Compl., ¶ 6.) The complaint alleges that, on or about August 13, 2016, Atkins was “acting within the cou...

Excerpt: ...ion 473 relief applies to dismissals if it results from counsel's failure to appear, which is comparable to the entry of a default against a defendant that fails to appear. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal.App.4th 603, 619.) Relief from the judgment of dismissal is mandatory when there is an attorney affidavit of fault and the motion is brought within six months of the dismissal. (Code Civ. Proc., § 473(b).) Here, the motion w...

Excerpt: ...endant Tamara A. McGinty (“RFAs”). As of the date of filing the Motion, Plaintiff had not received any responses from McGinty. Plaintiff moves here to have the RFAs deemed admitted. On July 3, 2018, Plaintiff filed an Amended Notice of Non‐Opposition to Motion to Deem Request for Admissions Admitted and for Monetary Sanctions. In the Amended Notice, Plaintiff stated that subsequent to filing the Motion, McGinty served responses to the RFAs,...

Excerpt: ... 2016. Petitioner alleges he was covered by bodily injury liability insurance policies containing uninsured/underinsured motorist coverage that were applicable on February 4, 2015 (policy number BA 8646989), and January 26, 2016 (policy number BAA (16) 56 47 56 16). (See Exhs. 1, 2, to Declaration of Don A. Ernst (“Ernst Decl.”.) On June 28, 2017, Petitioner sent a letter demanding arbitration under the uninsured and underinsured motorist pro...

Excerpt: ...vit of fault. Section 473 relief applies to dismissals if it results from counsel's failure to appear, which is comparable to the entry of a default against a defendant that fails to appear. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal.App.4th 603, 619.) Counsel provides a declaration confirming that he failed to appear at the OSC because due to his mistake, inadvertence and surprise he was not aware of the hearing. Relief from the judgmen...

Excerpt: ...ility, and Mrs. McAvoy asserts a claim for loss of consortium. (Compl., passim.) Plaintiffs contend that on December 3, 2013, while using a rung ladder between dock doors six and seven at a FedEx facility at 250 Bonetti Drive in San Luis Obispo, Mr. McAvoy slipped from the ladder and fell, suffering severe personal injuries. Plaintiffs contend that the placement of an electrical conduit near the rung ladder created a slipping hazard, leading to M...

Excerpt: ...es utilized a corporation, previously formed by Dennis, called Sanctuary 805, Inc. (“Sanctuary” or the “Corporation”). Sanctuary acquired all of the assets of Shell Café and, in exchange, the Brunettis received 75% of the Corporation's shares of stock and the Balsamos received 25% of the stock shares. The parties agreed to a three‐person Board of Directors (“Board”), but only selected two initial Board members, Charles and Dennis. ...

Excerpt: ...urther requests that Defendants provide additional support for the amount of the requested undertaking. Parties should come prepared to discuss dates for the continued hearing. ...

Excerpt: ...h Carolina. (See also 50 U.S.C. Appen. § 522(b).)2 Under that section, upon application by the service member, the Court must stay the action, “unless, in the opinion of the court, the ability of the plaintiff to prosecute the action or the defendant to conduct his or her defense is not materially affected by reason of his or her military service.” Christopher enlisted in the United States Army Reserve on August 30, 2017, and will serve thre...

Excerpt: ...rivate Attorneys General Act (“PAGA”; Lab. Code, § 2698, et seq.). Plaintiff has since dismissed all of her individual causes of action, and only the PAGA claim remains. On November 27, 2017, Sierra Vista filed a petition to compel arbitration, which this Court denied in an order dated February 28, 2018 (“Order”). Notice of Entry of the Order was entered on April 27, 2018. On June 26, 2018, Plaintiff filed a Notice of Appeal of the Order...

Excerpt: ...y the LLC and constructed by the Corporation. On February 27, 2018, Plaintiff served (a) special interrogatories (Set One); (b) form interrogatories (Set One); and (3) requests for production of documents (Set Two) on the LLC. That same day, Plaintiff served (a) special interrogatories (Set One); and (b) requests for production of documents (Set Two) on the Corporation. Responses were due on April 3, 2018. Plaintiff's counsel followed up with def...

Excerpt: ...independent retail service stations, joined in this action to allege that each of them entered into their respective contracts with Defendant Eagle Energy, Inc. (“Eagle”) and Linda Schultze (“Ms. Schultze”) for the exclusive supply of gasoline products for a ten‐year term. According to the second amended complaint (“SAC”), the Parties agreed that pricing would be accomplished according to the industry “Dealer Tank Wagon Pricing”...

Excerpt: ...wage garnishment. Defendant has filed a claim of exemption in which he reports a net monthly income of $3,648.82;1 and expenses of $3,595 (a difference of $53.82). The Sacramento County Sheriff's Office reports that as of May 25, 2018, it was not holding any funds. In addition to Defendant's claim of exemption, the Employer's Return states there are two other earnings withholding orders currently in effect. One of which was received on May 17, 20...

Excerpt: ....) As of June 4, 2018, the Santa Barbara County Sheriff's Department is holding $3,887.30. Defendant filed a claim of exemption contending the levied funds are wages and checking the boxes indicating that (1) his claim is made “pursuant to a provision exempting property to the extent necessary” for the support of Defendant and his dependents, and (2) the property claimed to be exempt is “tools, implements, materials, uniforms, furnishings, ...

Excerpt: ...013, Defendant expressed her concerns to Plaintiff regarding the absence and makeup policy in his P.E. class, in which Defendant's son was enrolled. (Compl., ¶ 6.) Defendant's concerns stemmed from her son's C‐grade, which Plaintiff explained was due to several absences, per department policy. (Ibid.) Thereafter, Defendant allegedly began a campaign to overturn what she considered an unfair policy concerning absences, involving several other s...

Excerpt: ...er), Christopher and Monica Belavic (the owners of the residence where Geiger lived with the dogs), the City of Exeter, the City of Grover Beach, and the cities' respective police departments. The City Defendants had allegedly owned, maintained, utilized, or sought to procure one of the dogs (named Neo) as part of their K‐9 police units. The City of Grover Beach filed a cross‐complaint for indemnification against the other Defendants (except ...

Excerpt: ... Fact (“UMF”) 3.) Wendee Carr (“Defendant”), Mr. Carr's wife, is a signatory to the release with Ms. Perez's insurance company, which specifically states: “This is not to be construed as a release of any UIM claim.” (Compl., Ex. B.) At the time of the accident, Mr. Carr was insured under a policy of automobile liability insurance (“the Policy”) issued by Interinsurance Exchange of the Automobile Club (“Plaintiff”). The “Name...

Excerpt: ...s on the underlying note. McClure was served by personal service on April 4, 2018. Her default was entered on May 8, 2018, and a default prove‐up hearing set for June 4, 2018. That hearing was continued to the present hearing date. In the interim, McClure filed this motion to set aside default pursuant to Code of Civil Procedure section 473(b).1 In her supporting declaration, McClure states that (1) she contacted Rossi after the complaint was f...

Excerpt: ...mplaint‐in‐intervention pursuant to Code of Civil Procedure section 387. According to the motion, Plaintiff was working in the course and scope of his employment with Aqua Systems when the accident occurred. Aqua Systems, at the time, was insured by Great American. Great American alleges that it has paid workers' compensation benefits to Plaintiff in connection with the incident. Under Labor Code sections 3852 and 3853, the insurer has a stat...

Excerpt: ...eable debt under federal bankruptcy law. On October 6, 2017, the bankruptcy court returned the 2014 judgment to this Court. On January 5, 2018, Plaintiff was issued an Abstract of Judgment in the amount of $57,493.07 and a Writ of Execution in the amount of $57,968.07. On March 6, 2018, Plaintiff filed an Acknowledgment of Satisfaction of Partial Judgment, crediting Defendant for payments of $13,000. Plaintiff executed a bank levy on two of Defen...

Excerpt: ...tes that Defendant failed to properly serve counsel for Plaintiffs with his Motion to Quash. Defendant's proof of service indicates that the motion was mailed to counsel for Plaintiffs at “928 W Grand AVE, Grover Beach, CA 93433,” on June 25, 2018. Per the address on the caption of the complaint, counsel's zip code is 93483. Thus, Plaintiffs were not properly served. Second, in his declaration in support of his Motion to Quash, Defendant decl...

Excerpt: ...nteed future payments since May 2016. On May 26, 2016, the Court approved a transfer of $50,000 in a future payment due on July 15, 2020. On September 15, 2016, the Court approved a transfer of $50,000 of a July 12, 2020 payment. On January 12, 2017, the Court approved the transfer of $81,720.88 from a July 12, 2025 payment. On April 13, 2017, Payee transferred $25,013.96 from the July 12, 2020 payment and $78,011.23 from the July 12, 2025 paymen...

Excerpt: ...staurant, Yanagi Sushi & Grill on James Way in Pismo Beach (“Yanagi”). On April 24, 2017, default was entered against C‐JDR. On May 26, 2017, Plaintiff amended her complaint to add JE&E, Inc. (“JE&E”) as a defendant under a successor liability theory. Plaintiff had moved for leave to amend after Yanagi was sold to JE&E, and after Plaintiff purportedly learned that C‐JDR's CEO, Kyong Jeong, left the country prior to trial. JE&E moves h...

Excerpt: ...pervising Environmental Health Specialist with the CUPA. (LaBarre Decl., ¶ 2.) Linnea Faulkner is an Environmental Health Specialist III with San Luis Obispo County Environmental Health Services (“EHS”), and works in the CUPA program to ensure compliance with state, federal, and local regulations as they apply to (among other things) UST. (Faulkner Decl., ¶ 2.) Beginning in 2006, EHS employees observed a series of violations at facilities (...

Excerpt: ...weeks. Plaintiffs have yet to file a proof of service of Summons via publication. (See Code Civ. Proc., § 415.50(c); Gov. Code, § 6064 [service completed on the 28th day following the first day of publication].) Now, before the Court is Plaintiffs' “Petition (Motion) for Mediation Agreement to Become a Judgment, Court to Retain Jurisdiction Under CCP § 664.6” (“the Motion”). In their Motion, Plaintiffs aver that they mediated a dispute...