Excerpt: ...ight to “withdraw” a jury waiver. This case involves a dispute for breach of contract and fraud based upon an alleged agreement to purchase and “flip” a residential property and then divide the profits. The Complaint was filed January 3, 2019; and a First Amended Complaint was filed on March 13, 2019. The case was set for Case Management Conference on May 3, 2019. No jury fees were posted by either side. On April 19, 2019, Defendant Han f...

Excerpt: ..., as no Default Judgment has yet been entered against him. Defendant Thomas P. Davies' Motion to Set Aside Default entered March 24, 2020 is DENIED for the following same reasons: (1) Defendant is not entitled to relief under Code of Civil Procedure Section 473(b) as more than six months have passed since entry of the default; (2) Defendant is not entitled to relief under Section 473(b) due to his failure to comply with the statutory requirement ...

Excerpt: ...�10; Issue No. 3, Fact Nos. 1, 2, 3, & 5. Plaintiff's request for a hearing continuance pursuant to Code Civ. Proc. Sect. 437c(h) is DENIED AS MOOT. Notice of Motion As an initial matter, the Court notes that Defendant's motion seeks summary judgment, but does not properly seek summary adjudication. See 9‐ 24‐21 Notice of Motion, which seeks “summary judgment,” but which makes no reference whatsoever to “summary adjudication.” Code Ci...

Excerpt: ...and seeks damages from Defendant. It asserts no allegations pertaining to Defendant Nash. The attached Police Report does not cure this defect because the Police Report merely contains statements by a third party. Because the Complaint contains/sets forth no allegations pertaining to Defendant (or anyone for that matter), the Demurrer is sustained with leave to amend. Plaintiff shall file and serve her First Amended Complaint on or before January...

Excerpt: ...483.010 et seq. The Attachment Law requires strict construction; unless specifically provided for by the Attachment Law, no attachment procedure may be ordered by the court. Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106. As the moving party, Plaintiffs have the burden of proving a proper basis for Attachment. C.C.P. 484.090. Plaintiffs assert claims for money had and received, conversion, and imposition of a ...

Excerpt: ...ember 17, 2021. First, the Complaint is uncertain. Code Civ. Proc. Sect. 430.10(f). Although uncertainty demurrers are generally disfavored (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616), here, the Complaint alleges so few comprehensible facts that its leaves Defendant guessing as to the factual basis for the asserted claims. Plaintiff appears to allege Defendant law firm represented Plaintiff in a 2001 Worker's Compensation Ap...

Excerpt: ...The Attachment Law requires strict construction; unless specifically provided for by the Attachment Law, no attachment procedure may be ordered by the court. Pacific Decision Sciences Corp. v. Superior Court (2004) 121 Cal.App.4th 1100, 1106. As the moving party, Plaintiffs have the burden of proving a proper basis for Attachment. C.C.P. §484.090. Here, Plaintiffs have not demonstrated the probable validity of their claims against Defendant Jeff...

Excerpt: ...er of them Is Indigent. The court may waive the bond requirement when the appellant “is indigent and is unable to obtain sufficient sureties . . . .” (Code of Civ. Proc. § 995.240.) Nadine Bagnarol presents no evidence of her financial state. The Court cannot find that she is indigent for purposes of Section 995.240. Carolina Bagnarol claims that her only assets are her interest in the LLC, her interest in the Canyon and Vera properties, and...

Excerpt: ...n for conflict of interest based on a prior (successive) or current representation. Lynn v. George (2017) 15 Cal.App.5th 630, 638. A motion to disqualify requires the Court to consider a number of factors, including each party's right to counsel of choice, the challenged attorney's interest in representing a client, the financial burden on a client of changing counsel, any tactical abuse underlying a disqualification motion, and delay in seeking ...

Excerpt: ...D. This claim arises from Cross‐Defendant initiating this action on September 6, 2017. Thus, on the face of the FACC and the judicially‐noticeable facts, this claim is barred by the oneyear statute of limitations for FDCPA claims. See 15 U.S.C.A. § 1692k (“An action to enforce any liability created by this subchapter may be brought . . . within one year from the date on which the violation occurs.”). Cross‐Complainant Alfredo Andrade c...

Excerpt: ...f ownership title of 50% in the subject property. As this seeks more than simple declaratory relief, and rather is an action to enforce the oral contract, trial preference is discretionary in the Court, pursuant to Section 1062.3(b). Further, Plaintiff admits that she presently has no ownership interest in the subject property – rather she is seeking to have an ownership interest transferred back to her. Plaintiff presents no declaration or oth...

Excerpt: ...hovel if that person comes near Defendant's birds. The Notice alleges Defendant's threat of violence is unlawful and constitutes a nuisance. A threat to inflict serious bodily injury on another person can, in some cases, constitute just cause for an eviction. See, e.g., Civ. Code 1946.2(b)(1)(F) (“… at‐fault just cause is …. any of the following: (F) Criminal activity by the tenant on the residential real property, …or any …criminal t...

Excerpt: ...Judgment. Pursuant to Code Civ. Proc., § 1285.4, a petition to confirm an arbitration award must (1) set forth the substance of the agreement to arbitrate, (2) set forth the names of the arbitrators, and (3) set forth or attach a copy of the arbitration award. The unopposed Petition complies with these requirements. The arbitrator's Final Award was issued on March 8, 2021. The present Petition was timely filed and served in accordance with Code ...

Excerpt: ...tatutes of limitations. The motion for judgment on the pleadings as to the cause of action for unjust enrichment and for fraud for failure to state a claim is DENIED. Request for judicial notice are GRANTED as to court orders and the pleadings, but otherwise DENIED as irrelevant. Plaintiffs shall file and serve their Second Amended Complaint on or before October 20, 2021. The motion is granted on the ground that these claims are potentially barre...

Excerpt: ...an Express Bank FSB against Defendants C.D. Rowsell and Bosonda International Ltd. as to all claims alleged in the First Amended Complaint is GRANTED. Alternatively, Plaintiff's motion for summary adjudication of the first cause of action for breach of contract is GRANTED; Plaintiff's motion for summary adjudication of the second cause of action for account stated is GRANTED; Plaintiff's motion for summary adjudication of the third cause of actio...

Excerpt: ...on, the court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) If the defendant makes this threshold showing, then the burden shifts to the plaintiff to establish a probability of prevailing on the claim. (Ibid.; see also Code of Civ. Proc. § 425.16(b)(1).) The plaintiff “must demonstrate that the complaint is...

Excerpt: ...Court. Plaintiff filed a notice that the case was “at issue” and requested a court trial – at a time when Benjamin Skelton was not a party, and given no notice thereof. The notice of the pretrial conference and of the trial were not served upon Benjamin Skelton. No default was ever entered against Benjamin Skelton – nor requested. No service of process or notice of trial was given to him as an unidentified occupant either, nor was any def...

Excerpt: ...d is otherwise DENIED as to all other causes of action. Plaintiff's request for judicial notice of other lawsuits against Defendants is DENIED and Defendants' objection thereto is SUSTAINED. Defendants' Evidentiary Objections, filed 8‐11‐21, are ruled upon as follows:  Obj. No. 1. OVERRULED.  Obj. No. 2. OVERRULED. Defendants object to this evidence on the basis of hearsay, but it appears that this evidence is not being used to show the...

Excerpt: ...t filed by Hillsborough Park Company (“HPC”) are DENIED. Absent objection, the Court grants Cross‐defendants Wisemans' Request for Judicial Notice as to all requested matters (Exhibits A through X.) HPC's cross‐complaint seeks to adjudicate that a strip of roadway adjacent to Crossdefendants Wisemans' lot is owned by HPC. The Wisemans contend that the Strip is a dedicated public road. The motion argues that the Howard Estate dedicated wit...

Excerpt: ... LEAVE TO AMEND, the ground that Plaintiff has failed to plead facts with particularity. Demurrer on other grounds is deemed MOOT given the lack of facts alleged in the pleading. Plaintiff shall file her Second Amended Complaint on or before August 28, 2021. Defendant argues that Plaintiff has not pled facts with sufficient particularity to satisfy the heightened statutory pleading standard for statutory liability against a government entity, cit...

Excerpt: ...omplaint is GRANTED. Alternatively, Plaintiff's motion for summary adjudication of the first cause of action for breach of contract is GRANTED; Plaintiff's motion for summary adjudication of the second cause of action for account stated is GRANTED; Plaintiff's motion for summary adjudication of the third cause of action for money lent is GRANTED: and Plaintiff's motion for summary adjudication of the fourth cause of action for money had and recei...

Excerpt: ...STAINED WITHOUT LEAVE TO AMEND; the demurrer to the seventh cross‐cause of action for violation of Business & Professions Code Section 17200 for “unlawful” or fraudulent acts or practices is SUSTAINED WITHOUT LEAVE TO AMEND; and the demurrer to the eleventh cross‐cause of action for “injunctive relief” is SUSTAINED but with leave to amend only to add a request for injunctive relief as a remedy to an appropriate and viable cause of act...

Excerpt: ...he fourth cause of action for breach of the implied covenant of good faith and fair dealing. Plaintiff shall file and serve his First Amended Complaint (with proper exhibits attached) on or before July 23, 2021. In general, a demurrer can be used only to challenge defects that appear on the face of the pleading, including attached exhibits, or from matters subject to judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Here, the Complaint ...

Excerpt: ...rocured by extrinsic fraud or mistake. Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 299. Defendant Michael Dilkey declares that he was never served with the operative First Amended Complaint and Amended Summons, either personally or by mail. A proof of service of the amended summons and complaint was filed on June 24, 2015, reflecting personal service on Mike Dilkey in the parking lot of his business on Lindbergh Street in Auburn by a licensed p...

Excerpt: ...ants attempted to meet and confer in good faith. Francis Decl., ¶¶ 2‐7. Further, following the parties' participation in an informal discovery conference, the Court authorized this motion to compel. 4/15/21 Minute Order. Plaintiff has placed his mental condition at issue due to his claim for intentional infliction of emotional distress and his assertion that he has experienced “grave emotional distress.” Compl. ¶¶ 97‐104. Plaintiff do...

Excerpt: ...Grayson's allegedly fraudulent representations renders the arbitration agreement unenforceable lacks merit. Plaintiff claims that Mr. Grayson fraudulently represented to him that the employment agreement was a “mere formality.” Though claims of fraud in the execution of the entire agreement are not arbitrable under either state or federal law (Rosenthal v. Great Western Fin'l Secur. Corp. (1996) 14 C4th 394, 416; Duffens v. Valenti (2008) 161...

Excerpt: ...inthis case. The Court takes judicial notice of the public records of the State Bar of California. In re White (2004) 121 Cal.App.4th 1453, 1469 fn. 14. A. Factual Background On March 15, 2019, the Court granted Defendants' motion to compel arbitration. Thereafter the parties were unable to agree upon an arbitrator. Defendants' former attorney filed a Rule 9.20 Notice of Interim Suspension on August 29, 2019. D's RJN, Exh. A. Defendant Carolina B...

Excerpt: ...aint on or before June 10, 2021. Defendant Cabezali's demurrer to the first cause of action is MOOT, as it is undisputed that he is not sued under the first cause of action – only the second cause of action. The second cause of action is for fraudulent inducement to entered into the settlement agreement and release contract. This is not pleaded as a tort claim for fraud itself. This is a contract claim, for which the remedy is rescission on the...

Excerpt: ...led beyond the statutory 60‐day deadline, the Court exercises its discretion to rule on the motion. Code of Civ. Proc. Section 425.16(f.) Cross‐ defendants Atulya Velivelli's and Aditya Velivelli's special motion to strike the third cause of action from the Cross‐complaint fails to make a prima facie showing under prong one of the SLAPP statutes, Code of Civil Procedure Section 425.16, that the cause of action arises from protected speech o...

Excerpt: ...irst Set of Requests for Production of Documents, Request No. 4, is GRANTED IN PART AND DENIED IN PART. The requests for judicial notice are DENIED as irrelevant. Requests for fees are DENIED. In its written response to Request #4, Sun Valley Partners LLC make dozens and dozens of evidentiary objections – on every conceivable basis, whether or not meritorious or applicable. No privilege log was served. As part of the “meet and confer” proce...

Excerpt: ...ff failed to comply with the requirements of CRC Rule 3.1324(b). Second, Plaintiff has failed to allege a viable cause of action in the proposed amendments. Plaintiff alleges that he tripped and fell, and sustained personal injuries, while waling on the pedestrian walkway at his apartment complex. His existing complaint alleges negligence and premises liability. Plaintiff now seeks to asserts that he suffers from diabetic neuropathy and that his ...

Excerpt: ...ants shall file and serve their First Amended Cross‐Complaint on or before June 1, 2021. As to the first cross‐cause of action for abuse of process, such a claim is the willful act in the use of process not proper in the regular conduct of the proceeding. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168.) Further, “merely obtaining or seeking process is not enough; there must be subsequent abu...

Excerpt: ...The case will be set for Case Management and Trial Setting Conference. This case was filed in January 2016. In January 2017, after participation in mediation, the parties allegedly agreed to sale of the disputed property and to participate in arbitration on remaining issue of accounting. The alleged settlement stipulation of the parties was NOT provided to the Court or filed in this action. There is only a joint ex parte request by counsel for th...

Excerpt: ..., seventh, and eighth cross‐causes of action; and is GRANTED as to the ninth cross‐cause of action. Third through Eighth Causes of Action Sayad attacks the cross‐claims against him for indemnity, declaratory relief, apportionment of fault, and contribution – all based upon the theory that Sayad and Gachot were co‐counsel for the client Montgomery Sansome and that Sayad committed attorney malpractice in regards to the underlying litigati...

Excerpt: ...udicial notice” and the Court can consider all filings in this action. Tolu's objection that the demurrer is untimely is OVERRULED. First, it appears Tolu served the Fourth Amended Complaint on Naber personally, but not on Naber's counsel of record – as discussed in the reply brief. There is no filed Proof of Service showing that Tolu served Naber's counsel with the 4ACC. It is improper to serve papers on a party when the serving party knows ...

Excerpt: ...f undisputed material facts, [and] the declaration of Kirkman J. Hoffman, submitted herewith,” no such declaration was filed in support of the motion. Plaintiff requests the Court take judicial notice of discovery responses that have not been filed with the Court. Plaintiff, however, has provided no grounds upon which the discovery responses may be judicially noticed. Accordingly, the request for judicial notice is DENIED. Because Plaintiff has...

Excerpt: ... initialing the space, no agreement is created. Plaintiff Nay did not initial Paragraph 22B. Therefore, no agreement to arbitrate and no waiver of judicial rights arose. If an agreement to arbitrate were enforceable in the absence of the parties' initials, then the language “by initialing in the space below” would be surplusage. An interpretation that renders part of a contract surplusage should be avoided. (City of El Cajon v. El Cajon Polic...

Excerpt: ...on a contractual forum selection clause, is DENIED. First, the Indemnitor Application and Agreement upon which moving party relies is expressly between Plaintiff Waller and Defendant Lexington National Insurance. Defendant U.S. Immigration Bonds has failed to make an initial showing of any contract to which it is a party that contains a forum selection clause. The Deed of Trust referencing Freedom Immigration Bonds (the dba for U.S.> Immigration ...

Excerpt: ...Gov. C. § 810 et seq. Section 815 provides that “Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. C. § 815.) Thus, to state a cause of action alleging government tort liability, every fact essential to the existence of a statutory duty must be pleaded with particularity, includin...

Excerpt: ...ity cause of action, but DENIED as to the remaining claims. Id. As to Conco, Plaintiffs allege claims for negligence, premises liability, and loss of consortium. 9‐ 26‐19 Complaint. The parties appear to agree that the loss of consortium claim is predicated upon and dependent on the negligence and premises liability claims. Having reviewed the parties' briefing and supporting evidence, the Court concludes that triable issues of fact preclude ...

Excerpt: ...mpt from disclosure under Gov. Code § 6254(k), part of the California Public Records Act (CPRA), which provides that the Act does not require disclosure of “Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” In Citizens Oversight, Inc. v. Vu (2019) 35 Cal.App.5th 612, 618– 620, the Fourth District Court of Appeal...

Excerpt: ...ssity and the reasons for the discovery; (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or r...

Excerpt: ...st instruments”. It is Defendant's contention that the oral examination can be conducted remotely, but that some of the psychological tests cannot be conducted remotely. The Amended Notice lists a multitude of potential tests, and that the doctor “will use her judgment to administer any, all or none of the following test”. No specific evidence has been presented as to which specific tests the doctor has a good faith belief will actually nee...

Excerpt: ...s contained within the documents. Defendant/Cross‐Complainant Cullens' Motion to Enforce Settlement is GRANTED. Plaintiff/Cross‐Defendant Jeromes' Motion to Enforce Settlement is DENIED. Defendant/Cross‐Complainant Cullens' request for attorney's fees is DENIED. The Court has jurisdiction to enforce the Settlement Agreement pursuant to Cal. Code of Civ. Proc. § 664.6, item 7 of the Settlement Agreement, and the March 5, 2020 Order Retainin...

Excerpt: ...§ 437c. The parties agree that Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny apply to the facts, but disagree as to the result. In general terms, the California Supreme Court's decision in Privette limits the liability of the hirer of an independent contractor for on‐the‐job injuries sustained by the independent contractor's employees. Id. As the Supreme Court explained in subsequent case law, however, the Privette doctrine...

Excerpt: ... other responsive pleading on or before five days after service upon him of the notice of entry of the order denying the motion to quash. In unlawful detainer actions, the filing of a motion to quash “extends the defendant's time to plead until five days after service upon him of the written notice of entry of an order denying his motion[.]” C.C.P. § 1167.4(b). Defendant filed a motion to quash on March 4, 2020. The Court denied the motion t...

Excerpt: ...2 Cal.App.4th 1234); Weil & Brown, Civil Procedure Before Trial ¶6:94‐¶6:96. Plaintiffs appearing pro per drafted and filed their Complaint on December 21, 2018, alleging claims for negligence and personal injuries arising from a vehicle collision on January 2, 2017. In the caption, Plaintiff identified “AAA Insurance (American Automobile Association)” as Defendant. Throughout the body of the Complaint, Plaintiffs addressed their negligen...

Excerpt: ...e answer. Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1379. “The grounds for a motion for judgment on the pleadings must appear from the face of the complaint or from a matter of which the court may take judicial notice.” RichardsonTunnell v. Schools Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061 (disapproved on other grounds by Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798). Here, Plaintiff...