Excerpt: ...art and DENIED in part. A. Combined Motion Is Not Sufficient Grounds for Denial In opposition to the Motion, Defendant raises three preliminary procedural issues that it contends warrant denial of the Motion. The first is that this Motion combines remedies authorized by separate provisions of the Civil Discovery Act. Plaintiff has moved (1) for an order compelling further responses to her Form and Special Interrogatories pursuant to Code of Civil...

Excerpt: ...under Civil Code § 1717(b)(2), there is generally no “prevailing party” when an action on a contract is voluntarily dismissed. “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.” Civ. Code, § 1717(b)(2). The statute is based on public policy to encourage plaintiffs to discontinue nonmeritorious litigation rather than continue...

Excerpt: ...st for Judicial Notice is GRANTED. Evid. Code Sect. 452(d). Defendants Kieran Treacy, Kelly Treacy, and Treacy Group, LLC's Demurrer to the SAC's First and Second Causes of Action (alleging breach of contract and breach of the implied covenant of good faith and fair dealing), is OVERRULED. Code Civ. Proc. Sect. 430.10(e). The Court previously sustained these three Defendants' Demurrer to these two causes of action in the original Complaint (see 6...

Excerpt: ...hat much of the $5,747.80 claimed in Item 1 consist of fees for legal service firms, and not filing or motion fees. Indeed, the only filing/motion fee listed in Item 1 is for Defendants' motion for summary judgment, incurred on October 8, 2019. However, the Court has discretion to grant costs of couriers or messenger fees if reasonably necessary to the conduct of the litigation. (Foothill‐De Anza Community College Dist. v. Emerich (2007) 158 Ca...

Excerpt: ...ies previously lived together for 13 years. Plaintiff alleges that in 2017, Defendant transferred/conveyed his ownership interest in the subject property from himself (individually) to himself as Trustee of the newly formed “MSI Family Trust.” Because Defendant's interest in the property is now held by himself as Trustee of the new Trust, it is proper for Plaintiff to request to add Defendant in his capacity as Trustee, so that any judgment c...

Excerpt: ...ts, judicial notice of Defendant's discovery responses is improper. Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 7.1 (TRG June 2022 update) (can take judicial notice of plaintiff's inconsistent discovery responses but not opposing party's responses). However, as previously, the Court accepts the responses for the fact that Plaintiff can plead additional facts to toll the statute of limitations. Defendants' Request for ...

Excerpt: ...olution of the preliminary injunction is automatically stayed pending Defendant's appeal of the preliminary injunction pursuant to Cal. Code of Civ. Proc. § 916(a), citing Varian Med. Sys., Inc. v. Delfino (2005) 35 Cal. 4th 180, 189‐ 90. Defendant argues that the Court retains jurisdiction of the issue because the order issuing the preliminary injunction is void for lack of requiring an undertaking pursuant to Cal. Code of Civ. Proc. § 529, ...

Excerpt: ...specific. 2. The Court exercises its discretion to not rule on Objections numbers 2, 3, and 8 because evidence relating to standard of care is not material to ruling on this motion. (Code of Civ. Proc. § 437c, subd. (q).) 3. Objections numbers 4, 5, 6, and 7, are sustained for lack of foundation. In addition, the opinions in paragraphs 4, 5, 6, and 7 lack a reasoned explanation for Dr. Light's opinions. (See Fernandez v. Alexander (2019) 31 Cal....

Excerpt: ...e grounds even if statutory relief is unavailable.” (Luxury Asset Lending, LLC v. Philadelphia Television Network, Inc. (2020) 56 Cal.App.5th 894, 910 (Luxury Asset Lending), quoting Rappleyea v. Campbell (1994) 8 Cal.4th 975 [quotation marks, brackets, and ellipses omitted].) “One ground for equitable relief is extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on th...

Excerpt: ...he second cross‐cause of action for dissolution of partnership regarding a real estate business is OVERRULED. Cross‐Defendant Loeswick's Demurrer to the First Amended Cross‐Complaint as to the third cross‐cause of action for violations of the Labor Code is SUSTAINED WITHOUT LEAVE TO AMEND. Cross‐Complainant Vernon fails to allege facts supporting any allegation that she was an “employee” of Loeswick under the Labor Code. A major con...

Excerpt: ...rt have the force of law and are as binding as procedural statutes as long as they are not inconsistent with statutory or constitutional law.” (R. R. v. Superior Court (2009) 180 Cal.App.4th 185, 205.) Defendants' failure to comply as to their Request for Judicial Notice imposes an unnecessary burden on the Court. Defendants' Request for Judicial Notice is GRANTED, The Demurrer by Defendants MERS and SHAUNA BOEDEKER as to the first, second, fou...

Excerpt: ... Action for Negligence and otherwise OVERRULED. A. Issue Preclusion Allied argues that Plaintiff is precluded from relitigating any issue raised by the FAC. Allied does not demonstrate that any issues litigated or decided in the prior proceeding are identical to those in the instant case. For issue preclusion to apply, there are five requirements: (1) the issue in the current proceeding must be identical to the issue in the former; (2) it must ha...

Excerpt: ...ure § 583.310. In response, on August 2, 2022, Plaintiff David Fennell filed an opposition to dismissal stating that the case was on federal appeal and, therefore, should not be dismissed. He states that he “is challenging the constitutionality of Code of Civil Procedure § 425.16, as used in this case and to block the Plaintiff's run for California Lieutenant Governor 2022.” Opposition at 2. He attaches a letter from the clerk of the United...

Excerpt: ...on. (Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191.) In contrast, an undertaking is required in order to stay operation of a prohibitory injunction. (Id.) “California has had the rule that an appeal automatically stays mandatory injunctions for more than 100 years.” (Agric. Lab. Bd. v. Superior Ct. (1983) 149 Cal. App. 3d 709, 716.) “A prohibitory injunction remains in full force pending such an appeal, and the court below may enf...

Excerpt: ...tion for summary judgment. (See Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Plaintiff Joan K. Levin (“Plaintiff”) owned property located at 100 Palmetto Avenue in Pacifica (“property”) for nearly forty years until she sold it to Western Edge Projects, LLC (“Western”) on January 11, 2016. (Amended Complaint (“AC”) ¶ 8.) Plaintiff agreed to a seller finance or carry back loan of $1.9 mi...

Excerpt: ...he time of the foreclosure.” (MPA, p.1.) Indeed, according to the declaration of Eric Houser, Defendant's counsel, “Rushmore stopped servicing the loan months before the foreclosure sale.” Houser Decl., ¶ 2. However, Rushmore is identified as the loan servicer in the Notice of Default and Election to Sell Under Deed of Trust recorded on August 19, 2021, attached to Defendant's request for judicial notice. The Notice contains a declaration,...

Excerpt: ...EE”) TENTATIVE RULING: The Petition of Honeybee Foods Corporation/Red Ribbon Bakeshop Inc./Tokyo Teriyaki Corporation (“Jollibee”) for an Order to Release Property from Claim of Lien is DROPPED as MOOT. Respondent All Pro Services dba 1‐ 877‐DUMP‐PRO (“Respondent”) demonstrates that Releases of the Mechanic's Liens were recorded in May 2022. (Mattuch Decl. ¶ 2, and Exh. B.) Jollibee's request for $4,567.50 in attorney's fees is D...

Excerpt: ...SBs) and NHTSA complaints regarding the allegedly defective transmission, including those relating to Honda Odysseys. According to Defendant, “This case has nothing to do with Honda Odysseys, nothing to do with prior Honda Pilot models, and indeed nothing to do with any vehicles other than the Subject Vehicle.” MPA, p.2. However, as set forth in the analysis of Defendant's demurrer, Plaintiff alleges that “These defective transmissions were...

Excerpt: ...ition relies on 17 exhibits, comprising 140 pages. Of that evidence, 120 pages (15 exhibits) are redacted in their entirety. The unredacted evidence is merely lodged under seal, but not filed. Similarly, Plaintiff's Opposing Separate Statement is lodged under seal, but not filed. The parties stipulated to a Protective Order, which requires that when filing any documents designated as “CONFIDENTIAL,” “the filing party shall follow the proced...

Excerpt: ...”) and Laurel Elementary School's (“School”) unopposed Demurrer to the First and Second Causes of Action (“COA's”) in Plaintiff's Second Amended Complaint is SUSTAINED without leave to amend pursuant to Cal. Code of Civ. Proc. § 430.10(e). First COA for Negligent Supervision The requisite duty of care that the School and District owed to Plaintiff was to protect from foreseeable injury at the hands of third parties. C.A. v. William S. ...

Excerpt: ...nnot assert claims for breach of express and implied warranties under the Song‐Beverly Act because the Act does not apply to used vehicles, even where the applicable manufacturer's warranties have not expired. Defendant relies on the recent decision in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 219–221. In that case, the court held that vehicles with a remaining balance on the original warranty do not meet the Act's definition of a �...

Excerpt: ... Further Responses to Requests for Production (Set Seven) (Motion) and Requests for Monetary Sanctions is GRANTED IN PART and DENIED IN PART. 1. Request for Production (RFP) No. 78 In responding to RFP No. 78, Defendant Nordstrom, Inc. only provided objections. Defendant's response is not, however, code compliant. Under Code of Civil Procedure section 2031.240, a party who objects to a request for production must “identify with particularity an...

Excerpt: ...nsula Infiniti, a dealership, pursuant to a Retail Installment Sale Contract (Contract). (Maugeri Decl., ¶ 4, and ex. 3.) The only signatories to the Contract are Peninsula Infiniti and Plaintiff. (See id., ex. 3.) Defendant is not a signatory. (Ibid.) The Contract contains an arbitration provision, which states in relevant part that: “Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope...

Excerpt: ...age limit and font size. California Rule of Court 2.104; 3.1113(d). In its discretion, however, the Court has chosen to reach the merits of the motion rather than ordering Plaintiffs to re‐file their Opposition brief. All parties are reminded to comply with the Rules of Court going forward. Facts/background. The parties to this case had a prior relationship, which led, in 2017, to defendant Aaron Timm filing a lawsuit against Plaintiffs Sarah B...

Excerpt: ...ifornia Code of Civil Procedure §§ 2030.220, 2031.310; and 2) further responses and all documents responsive to the City's document demand to Plaintiff, Request No. 2, along with a privilege log pursuant to California Code of Civil Procedure §§ 2031.240, 2031.310 is GRANTED. Plaintiff shall provide the verified supplemental responses within 10 days after entry of order; Plaintiff shall provide all responsive documents and a privilege log with...