Excerpt: ...”) on Plaintiff's former counsel, David G. Finkelstein, Esq. (“Mr. Finkelstein”). Procedurally, Plaintiff filed a Separate Statement with his motion that fails to comply with Cal. Rules of Court Rule 3.1345. The separate statements must include the text of the request or demand. (See Cal. Rules of Court Rule 3.1345(c).) Plaintiff's counsel failed to include the entire text in the separate statement, and therefore is admonished to comply wit...

Excerpt: ... or cause unnecessary delay or needless expense under CCP § 128.7. Notably, Defendant's motion for sanctions was not denied on the merits. Rather, as noted in the court's May 20, 2019 order, Defendant's motion was denied because Defendant failed to follow the safe harbor procedures mandated by CCP § 128.5. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written or...

Excerpt: ...iffs”) for Terminating Sanctions Against Defendants Cevera Automotive Group, LLC and Robert V. Branzuela (“Defendants”), or Alternatively, for Issue and Evidentiary Sanctions, and Contempt, is ruled on as follows: The Motion for Terminating Sanctions, or Alternatively, for Issue and Evidentiary Sanctions, is DENIED. A trial court has broad discretion in selecting discovery sanctions, and considers both the conduct being sanctioned and its e...

Excerpt: ...‐Bilt v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488. The Tech‐ Bilt decision requires this Court to consider “the allocation of settlement proceeds among plaintiffs”. Id. at 499‐500. Given that Ms. Geipe is not a Plaintiff in this action and has not articulated a persuasive reason why $1 million of her son's settlement should be allocated to her personally for the purpose of buying a house, the Court declines to find that the se...

Excerpt: ...ce of the complaint; it is not enough that the complaint shows merely that the action may be barred. McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874. Here, the statute of limitations bar appears clearly on the face of the Verified Complaint as Plaintiff admits that he waited nineteen years to assert a claim to the Subject Property. The discovery rule does not save Plaintiff's claims. It is the discovery of facts, not their l...

Excerpt: ... Motion of Plaintiff Bonnie Rodemeyer (“Plaintiff”) and proposed additional Plaintiffs Kristina L. Nelson, Michael J. Rodemeyer and Edward E. Rodemeyer, III (“proposed Plaintiffs”) to Compel Defendants Jim Heldberg and Professional Computing Solutions, Inc. dba Silicon Segway (“Defendants”) to Produce Independent Medical Examiner (“IME”) Report is ruled on as follows: This motion purports to be brought by the proposed Plaintiffs, ...

Excerpt: ...RULING: The Motion of Plaintiff Bonnie Rodemeyer (“Plaintiff”) and proposed additional Plaintiffs Kristina L. Nelson, Michael J. Rodemeyer and Edward E. Rodemeyer, III (“proposed Plaintiffs”) to Compel Defendant Jim Heldberg dba Silicon Segway to Serve Verified Answers and for Issuance of Monetary Sanctions is ruled on as follows: This motion purports to be brought by the proposed Plaintiffs, who are not yet parties to this action. Theref...

Excerpt: ...ndant's motion is procedurally defective as it fails to include a copy of the answer or other pleading proposed to be filed in this action. Code Civ. Proc. §473(b). If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling for the Court's signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice...

Excerpt: ...e of whether the existence of Defendants, who are necessary parties to Plaintiffs' claim for partition, but who are non‐signatories to the arbitration provision of the Bagnarols' LLC operating agreement, precludes the Court from determining that Plaintiffs' claim is subject to arbitration pursuant to the arbitration agreement. Because Plaintiffs have not presented authority indicating that the existence of third parties precludes application of...

Excerpt: ...the entire cause of action for failure to allege the legal description of the property and failure to allege tender of the outstanding debt. The allegation of tender is not excused; Plaintiff fails to allege facts showing that the sale was void. B. Third Cause of Action (Breach of Implied Covenant) Demurrer is SUSTAINED. Of the implied covenant of good faith and fair dealing, the pleading fails to allege a breach. The acts of which Plaintiffs com...

Excerpt: ...019. There are no acts for the Court to compel. The sufficiency of the objections and responses are not at issue in the present motion since the motion is pursuant to Code of Civil Procedure sections 2030.290 and 2031.300 and not 2030.300 or 2031.310. (See Notice of Motion.) Defendant's Motion to Compel Production of Documents is DENIED. A motion to compel production of documents is proper when a party responds that he will comply with the reques...

Excerpt: ...d cause of action against Defendant. All of Plaintiffs' claims against Defendant are barred by res judicata. Res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) Claim preclusion operates as a bar to a second lawsuit between the same parties on the same cause of action. (Id.) The elements for claim preclusion are: ...

Excerpt: ... Proc. §1987.1. These subpoenas seek information that is protected by Plaintiff's privacy rights. In Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, the Court barred disclosure of “personnel… or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Id. at 529; see Cal. Const., Article I, §1. Defendants fail to demonstrate a compelling need for the production of these documents...

Excerpt: ...ngs if “the complaint does not state facts sufficient to constitute a cause of action against that defendant.” Code Civ. Proc. § 438(c)(1)(B)(ii). “The grounds for motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of ...

Excerpt: ...owledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363). Fraud must be pled with specificity. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The plaintiff must allege facts which show how, when, where, to whom, and by what means the representations were tendered. (Ibid.) Here, Plaintiff fails to allege facts sufficient to support a claim f...

Excerpt: ...arnered the requisite two‐thirds of the vote to pass, pursuant to Gov. Code §§ 53326(b) and 53328; and (2) Whether the CFD boundary map was fatally defective because it includes “openspace” territory without Plaintiff's consent, in violation of Gov. Code § 53312.18(a). As to the first issue, the Court finds that the City was not a qualified landowner for purposes of voting in the special election. The City acknowledges that it voted its ...

Excerpt: ...t the sale. As the winning buyer, AJE is the owner of the personal property listed in the UCC‐1 Statements. After the sale, Cross‐defendants remained in possession of the property at the dental office, despite AJE's having purchased the personal property at the sale. AJE estimates that the property is valued at $161,000. Cross‐defendants' Opposition does not contest the estimate. B. Opposing Arguments Lack Merit. NGUYEN contends that the ap...

Excerpt: ...ED. All requests for judicial notice are GRANTED. This matter was originally heard on January 24, 2019 at which time the court continued the matter to March 7, 2019 and ordered defendant Suzie Investments, Inc. to comply with CCP §430.41(a)(3) by filing the declaration required by that statute. The Second Declaration of Seth Weiner in Support of Demurrer to Complaint filed on February 1, 2019 satisfies the statute, so the demurrer may now procee...

Excerpt: ...tion: (1) Paul McKinnie, et al. v. Phyllis Harrison, et al., Case No. 18CIV04938 (“McKinnie action”), and (2) William Grosso, et al. v. Phyllis Harrison, et al., Case No. 18CIV02540 (“Grosso action”) However, Ms. Harrison has not demonstrated that a transfer order is necessary given that both the McKinnie and Grosso actions were also filed in this court. (See C.C.P. § 403 [“A judge may, on motion, transfer an action or actions from ano...

Excerpt: ...lication for leave to present a claim as contemplated by that section. Indeed, Petitioner does not indicate that “application was made to the board under Section 911.4 and was denied or deemed denied,” as required to obtain relief under Gov't. Code § 946.6. As set forth below, Respondent appears to have waived any defense as to the timeliness of Petitioner's claim pursuant to Gov't. Code § 911.3(b). Petitioner submitted a Government Claim o...

Excerpt: ...e days before the date a motion to strike must be filed” (Id. sect. 435.5, subd. (a)(2).) The motion to strike must include a declaration setting forth in detail the compliance with section 435.5, or reasons why compliance was not possible. (Id. sect. 435.5, subd. (a)(2) & (3).) Plaintiff's motion fails to comply with these statutory requirements. No declaration is on file. The motion is also possibly untimely. A motion to strike an Answer must...

Excerpt: ... Defendant's business records subpoena, which requests records relating to “treatment for any condition” since July 1, 2010 is overly broad, as it makes no attempt to limit its scope to the conditions alleged in Plaintiff's complaint. The scope of the subpoena shall be limited to records relating to the conditions identified in Plaintiff's complaint, including records relating to the treatment Plaintiff sought immediately following the allege...

Excerpt: ...ons. Under Plaintiffs' reasoning, any litigant could avoid the mandatory 21‐day period merely by waiting until the Court has ruled on a motion and then filing a motion for sanctions. Plaintiffs cite no authority for this interpretation. The interpretation is unreasonable because it would render the waiting period provision meaningless. (See Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 274 (statutes must be construed in m...

Excerpt: ...its entirety. The Complaint alleges claims for open book account, account stated, money lent, and money paid at Defendant's request. (Complaint ¶¶ CC‐1(a) & CC‐1(b).) The motion against the entire complaint can be granted only if it defeats all causes of action. The motion is denied because it fails to dispose of three of the four causes of action. A. The Motion Establishes that Defendant Owes $3,321.48 to Plaintiff for “Money Paid.” Th...

Excerpt: ...�) Cross‐Complaint, is ruled on as follows: (1) Plaintiff's Motion for Summary Judgment, or in the Alternative, Summary Adjudication, to the Complaint is DENIED. Plaintiff fails to meet her initial burden of establishing each element of her causes of action. (See C.C.P. § 437c(p)(1).) Plaintiff not only seeks recovery of the possession of the vehicle, but also seeks damages in connection with all three causes of action alleged. (See Third Amen...

Excerpt: ...Memorandum of Points & Authorities, neither Defendant's Notice of Motion nor the Demurrer itself state that the Demurrer is being brought under Code Civ. Proc. § 430.10(a), which is the subsection dealing with subject matter jurisdiction. Thus, the jurisdiction argument was not properly noticed. Further, the cited authority does not establish that the Court lacks subject matter jurisdiction over this breach of contract claim. The Complaint is no...

Excerpt: ...tter. The Court directs Plaintiffs' counsel to file motions separately in the future. A. BLACK PINE GROUP's Motion to Compel JAMES YOUNG to Produce Documents The motion is DENIED. 1. The motion identifies documents that purportedly have not been produced, but the motion does not indicate whether the missing documents are responsive to any document category. Plaintiff's failure to specify the document categories places the burden on the Court to f...

Excerpt: ...App.2d 194, 197.) The same policy favoring liberality in amended pleadings applies so that all matters in dispute between the parties may be resolved in a single lawsuit if reasonably possible. (Id.) Plaintiffs seek to supplement the Complaint to include allegations of additional trespasses and nuisances that they have discovered since the Complaint was filed. The only prejudice argued by Defendants is that they have already deposed Plaintiffs an...

Excerpt: ...olves the objections to be raised in the motion. §435.5(a)(3) requires the moving party to file and serve with the motion a declaration stating either the means by which the moving party met and conferred and that they did not reach an agreement or that the party who filed the pleading that is the subject of the motion failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. The declaration of Gopal ...

Excerpt: ...18, 19 and 20. As to the Declaration of Gilg, the Court overrules Chantler's Objection 1 and sustains Objection 2. The Court exercises its discretion to not rule on Yeganeh's Objections since none of the matter to which Yeganeh objects was necessary or material to the Court's analysis of the present motion. (See Code of Civ. Proc. Sect. 437c, subd. (q).) B. Issue 1 (Sixth Cause of Action) Plaintiff Chantler's claim for action on a judgment is tim...

Excerpt: ...multiple counties, not just where the defendant(s) reside. In breach of contract cases, venue is proper, inter alia, where the contract work is to be performed. Code Civ. Proc. § 395(a). On a motion to change venue, the moving party bears the burden of establishing the facts necessary to justify a change of venue. Buran Equip. Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666. The Complaint here alleges the contract was formed in, and perfo...

Excerpt: ...ive Order, filed 2‐13‐19, which includes a request for attorney's fees, is GRANTED‐IN‐PART and DENIEDIN‐PART, as set forth below. Plaintiff has not filed any “Opposition” per se, but on 2‐19‐19, filed and served (by regular mail) a document stating Plaintiff “Objects” to the DA's Motion to Quash. Even if this document had been formatted and entitled properly, Plaintiff served it by regular mail, which violates Code Civ. Proc...

Excerpt: ...to bring the instant motion. Moreover, the motion is untimely pursuant to Code Civ. Proc. § 473(b), and the Court has no jurisdiction to consider it. Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36. Even if Mr. Thompson had standing and the motion was timely, it would be denied for lack of merit. Mr. Thompson provides no explanation as to what “mistake, inadvertence, surprise or excusable neglect” resulted in entry of the Court's July...

Excerpt: ...nterrogatories (Set One) within 14 days of this order. Defendant's request for sanctions is DENIED. Allstate's opposition does not respond to the arguments presented in the moving papers, and it is not supported by a declaration signed under penalty of perjury. Allstate's response is also deficient because the attached exhibits are not what they are purported to be in its memorandum in opposition. In any case, Defendant has demonstrated it is ent...

Excerpt: ...t retained at the time the default was entered cannot be the proximate cause of the entry of default under 473(b).” In that case, the defendants' counsel was not contacted until after default was entered on June 4. Although counsel was retained in August, counsel failed to move to set aside the default before judgment was entered in September. The court concluded that counsel's conduct was not the proximate cause of entry of default because he ...

Excerpt: ...Plaintiff leave to amend one cause of action. Plaintiff then filed a TAC five days after the statutory deadline for filing an amended pleading had expired. Under the circumstances, including the absence of any compelling showing of prejudice, the Court will exercise its discretion and accept Plaintiff's late‐filed TAC. § 473(a)(1). To the extent the County contends the Court lacks discretion to do so, the Court disagrees. Harlan v. Department ...

Excerpt: ...and Bonnie Rodemeyer (“Plaintiffs”) to File Second Amended Complaint is GRANTED IN PART and DENIED IN PART. Defendants Professional Computing Solutions, Inc. dba Silicon Segway and Jim Heldberg (“Defendants”) ask that this motion be denied for failure to comply with California Rules of Court Rule 3.1324(a). While Plaintiffs did not state what allegations are proposed to be deleted and amended, by page, paragraph and line number, Plaintiff...

Excerpt: ...de full and complete responses within 14 days of this order. To the extent Newsweek has already provided the information sought, it may respond accordingly. Structure asserts that Newsweek has waived objections for failure to respond to the discovery requests by October 2. The court agrees. With respect to this issue, however, the court notes that Structure refused to grant any extension for responding to its discovery requests. Further, during t...

Excerpt: ...x months. Second, defendant has not provided a proposed responsive pleading as required by the statute. Finally, defendant has not offered evidence to support a finding that the default was entered as a result of her mistake, surprise, inadvertence of excusable neglect. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court's ruling ...

Excerpt: ...laintiff's objection to Defendant's purported attempt to file a moving Memorandum of Points and Authorities of excessive length by manipulating typeface size and line spacing. (Opp. P&A at 1 and n.1). The Court also notes that Plaintiff's extensive use of footnotes brings her Opposing brief to a word‐count nearly identical to that of Defendant. The motion for summary adjudication is DENIED as to Issues 1, 2, and 3. A. Issue 1 – Damages 1. The...

Excerpt: ...d on “the judgment debtor” and “all members” of the LLC in which the judgment debtor purportedly owns an interest. (Code of Civ. Proc. § 708.320(a).) The Proof of Service does not show that this motion was served on Judgment Debtor METAMINING, INC., or on any members of Spiro Mining, LLC, or Coal Creek, LLC. It shows service on the LLCs, but the statute requires service on the LLCs' “members.” This defect in service was pointed out i...

Excerpt: ...for breach of contract and negligence cannot be established, and Plaintiffs fail to meet their burden of showing the existence of a triable issue of material fact. Code Civ. Proc. § 437c(p)(2); Calvillo‐Silva v. Home Grocery (1998) 19 Cal.4th 714, 735. Moving and opposing papers in a summary judgment motion must be supported by admissible evidence consisting of “affidavits, declarations, admissions, answers to interrogatories, depositions, a...

Excerpt: ...confirming that Petitioner may install and use a second hoist at the south side location originally approved by the Harbor Master on March 28, 2014, this issue is DENIED AS MOOT. Petitioner acknowledges in its moving papers that at their October 17, 2018 Board meeting, “Respondents voted on a resolution authorizing Three Captains to install its second hoist and directing their General Manager to take all actions necessary to give effect to the ...

Excerpt: ...led to comply with CRC 3.1350(b), which requires that “[T]he specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” Defendants have not repeated the noticed issues verbatim in their separate statement. Further, Defendants have noticed and briefed issues, relating to Plaintiffs' c...

Excerpt: ...rike that portion of the SAC setting forth a cause of action for negligence is GRANTED. Paragraphs 87 through 107 of the second amended complaint are hereby stricken. Ocwen contends the entire SAC should be stricken because it was not timely filed under operation of CRC 3.1320. The court notes, however, there is a split of authority as to whether Plaintiffs must file a noticed motion seeking permission to file the late pleading, or whether the co...

Excerpt: ...ourt previously sustained Ocwen's demurrer to these causes of action and provided Plaintiffs with the opportunity to amend the complaint to plead facts sufficient to state a claim. The court's order provided, in pertinent part, as follows: As to the First Cause of Action for violation of Bus. & Prof. Code 17200, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. This claim is predicated on the alleged HBOR statutory violations and common law claims a...

Excerpt: ...otion for Summary Judgment/Adjudication is GRANTED pursuant to California Rules of Court Rule 2.550(d). Based on the Motion, the document is confidential pursuant to the terms of the parties' discovery stipulation; although it was submitted in support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment/Adjudication, it had limited bearing on the legal issues necessary to adjudication of the motion; and based on those facts, the c...

Excerpt: ...om its making. (Civ. Code sect. 1624, subd. (a)(1).) However, if it is merely unlikely that it will be so performed, or the period of performance is indefinite, the statute does not apply. (Blaustein v. Burton (1970) 9 Cal. App. 3d 161, 185.) The statute of frauds applies only to contracts that “cannot” be performed within one year. (Hollywood Motion Picture Equip. Co. v. Furer (1940) 16 Cal. 2d 184, 187.) Even though a promise may not by its...

Excerpt: ...NIED. Defendant brings this motion under Code of Civil Procedure section 473.5, or alternatively, under Code of Civil Procedure section 473(d). Defendant seeks to set aside the default and default judgment for possession entered on March 7, 2017, and the default judgment for money entered on May 8, 2018. Plaintiff argues that the motion is untimely because Defendant failed to bring it within 180 days after service on Defendant of written notice t...

Excerpt: ... a married spouse of the injured plaintiff or to his or her registered domestic partner. (CACI 3920; Fam. Code sect. 297.5, subd. (c). Plaintiff's reliance on the Butcher case is unpersuasive; the Supreme Court rejected Butcher for the proposition cited by Plaintiff. (See Elden v. Sheldon (1988) 46 Cal.3d 267, 277, 279‐80.) Plaintiff LOPEZ does not allege that she is the spouse or registered domestic partner of Plaintiff ALFARO. Plaintiff LOPEZ...