Excerpt: ...tter, including time spent drafting and revising pleadings, meeting with clients, and preparing for and presenting the case at trial. (Serrano v. Priest (1977) 20 Cal.3d 25, 28‐29, n. 4.) "Reasonable" attorney's fees are based on the prevailing market rate where the legal services were rendered. PLCM Grp. v. Drexler (2000) 22 Cal.4th 1084, 1095. In determining a reasonable hourly rate, the court should be guided by the rate prevailing in the co...

Excerpt: ...e integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter's knowledge or consent. ..."[a] fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act. ... [T]he liability ...

Excerpt: ...ion 425.16, subdivision (e)" If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88) The inquiry under the catchall provision calling for a two‐part analysis is rooted in the statute's purpose and internal logic. First, we ask what “public issue or ... issue of public interest” the speech in q...

Excerpt: ...The only “existing road' depicted on the Surveyor's Map attached to the Declaration of Noah Selman (attached to the Declaration of Aaron Mohammed as Exhibit A) is Russell Ridge Road. Mr. Selman's declaration and attachments indicate that the Ridge Runner Plaintiffs were granted a second, 40 ft wide easement in 1994 over the D'Orio parcel (Assessor's Parcel No 106‐101‐01), but that this is in addition to their 60 ft wide easement granted in ...

Excerpt: ...as failed to sufficiently allege the existence of any statements or representations that were misleading or otherwise fraudulent, the trial court could reasonably require plaintiffs to set out or attach a representative selection of advertisements, to state the misrepresentations made by those advertisements, and to indicate the language or images upon which any implied misrepresentations are based. This is a method of pleading which has been end...

Excerpt: ...eference its Preliminary Statement and the general objections. Responding Party further objects to this Request on the ground that it invades theattorney‐client privilege and the attorney work product doctrine because the Answer in the NLRB proceeding was not verified and was based on incomplete, limited and/or inaccurate information available to counsel at the time of the Answer. Subject to and waiver of these objections, Responding Party resp...

Excerpt: ...tion of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., § 452.) (Chazen v. Centennial Bank (1998) 61 Cal.App.4th 532, 542 [71 Cal.Rptr.2d 462].) A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Id) As a general rule, in testing a pleading against a de...

Excerpt: ...produce evidence in defense of an exemplary damage claim; fairness demands that he receive adequate notice of the kind of conduct charged against him. The complaint must contain factual assertions supporting a conclusion petitioner acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041 [13 Cal.Rptr.2d 133].) Because Plaintiff has not pleaded oppression, fraud or malice with specificity, (see Complaint ¶...

Excerpt: ...laratory relief/injunction (3rd and 5th causes of action), writ of mandate (4th cause of action), and a claim under Govt. Code §54999.7. These causes of action are predicated on allegations that the City violated the substantive and procedural provisions of Proposition 218 by its Joint Pilot Program contract with SCWD. Although the complaint also refers to other unidentified governmental agencies, it can now be assumed that Plaintiffs are not ch...

Excerpt: ...ing interest that overcomes the right of public access to the records, namely, Cory Mayer's privacy rights, his contractual obligation of nondisclosure, and his right as a civil litigant to a fair hearing. (2) The overriding interest supports sealing the records. (3) A substantial probability exists that the overriding interest will be prejudiced if the records are not sealed, namely, the Settlement Agreement is confidential and contains financia...

Excerpt: ...ough it has already been appropriated to a public use. (Reply pg. 2:6‐22) However, as the City points out, CCP § 1241 was repealed in 1976. None of the statutes cited by the City as the new Eminent Domain law appear to unequivocally empower a city to condemn public utility property even though it has already been appropriated to a public use as CCP § 1241 did. (Reply pg. 2 fn 1) The Parties are requested to appear at the hearing to set a new ...

Excerpt: ... Petitioner in the second, untimely motion, Petitioner has failed to present a valid challenge to these costs, and the motion is denied. As the prevailing party the District is entitled to its costs as a matter of right, “except as otherwise expressly provided by statute”. CCP §1032(b). The court has no discretion to deviate from this rule where, as here, Respondent was the clear prevailing party. There is no statutory authority to consider ...

Excerpt: ...ce (9th c/a) as to Defendants Mendoncas, The Holcomb Corporation, and Kyla Holcomb‐Piramoon and for breach of duty to be honest and truthful (11th c/a) as to Defendants The Holcomb Corporation, and Kyla Holcomb‐Piramoon. The demurrer to the cause of action for cancellation of instrument (7th c/a) asserted against the Mendonca Defendants is sustained. The demurrer to the cause of action for fraud (5th C/A) asserted against Defendants Mendoncas...

Excerpt: ...tnut Sr., who suffers from advanced Parkinson's disease. They assert that, in the event that these motions are granted, there will be insufficient time to prepare the new probate case for trial, or to conduct the deposition of William Sr.. Based on the July 27, 2021 declaration of Aaron Mohammed counsel were then in discussions to arrange for a competency evaluation of William Chestnut Sr., and Mr. Mohammed committed to produce him for a depositi...

Excerpt: ...e a failure to comply ... and (2) the failure must be willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [51 Cal.Rptr.2d 311].) The duty to preserve documents is relatively clear. That duty extends to any documents or tangible things made by individuals "likely to have discoverable information that the disclosing party may use to support its claims or defenses." The duty also includes documents prepared for those individuals, to the ...

Excerpt: ...ormation to acquaint the other party with the nature of information desired, attempt to place the burden and cost of supplying information equally available to both solely upon the adversary, placing more burden upon the adversary than the value of the information warrants, etc.). Such improper methods of 'fishing' may be (and should be) controlled by the trial court under the powers granted to it by the statute." (Id at pp 224‐225.) Here, the ...

Excerpt: ...cted to unwarranted annoyance, oppression and expense by Tabatabai, who has served him with duplicative sets of Form Interrogatories. Mr. Lindow's declaration provides only his conclusion that the third set of From Interrogatories is “substantially similar” to the previous interrogatories. This is insufficient to demonstrate good cause for a protective order. ...

Excerpt: ...l Procedure section 1987.1 contains permissive, not mandatory, language regarding motions to quash. It states, "When a subpoena requires the . . . production of books, documents or other things . . . the court, upon motion . . . may make an order quashing the subpoena entirely...Discovery procedures are generally less onerous for strangers to the litigation. That is because they are less likely to be represented by counsel, familiar with the issu...

Excerpt: ...who was underaged, was subjected to hazing in order to obtain an officer position in the fraternity; that he was instructed to drink multiple shots of alcohol at the cross‐ over ceremony, and became visibly intoxicated; that he was then directed to attend, and was driven to a party to celebrate the initiation, which was located at a house at 511 Broadway, in which several fraternity members resided; that fraternity members continued to “ply�...

Excerpt: ....; and that Plaintiffs are therefore entitled to summary adjudication of their first and second causes of action for quiet title and declaratory relief. Plaintiff s have also presented evidence, through their own declarations, the deposition testimony of Defendants, and evidence of Defendants' posting of Civil Code section 1008 signage, that Defendants dispute Plaintiffs' right to use the gravel road, and intend to block this use. This entitles P...

Excerpt: ...U.S.Dist.LEXIS 124509, at *8‐9.) Turning to whether the Second Cause of Action for failure to accommodate in violation of FEHA states sufficient facts to constitute a cause of action, there are three elements to a failure to accommodate action: “(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed t...

Excerpt: ...required to prove assignment or ownership of loan documents in order to proceed with a foreclosure. Saterbak v JP Morgan Bank (2016) 245 Cal. App. 4th 808, 814. Regardless, the judicially noticeable documents demonstrate that the Deed of Trust securing the loan which is the subject of this action and foreclosure was validly assigned to Defendant Affinia. The Court is not persuaded by Plaintiffs' claim that they were never notified of the identity...

Excerpt: ... court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as ...

Excerpt: ...is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 [109 P.2d 942].) A demurrer may properly be granted based on the failure to adequately plead an exhaustion of administrative remedies. A plaintiff must exhaust the administrative remedies available before resorting to...

Excerpt: ...go to the power of the court, has been recognized as being harsh, and it will not be adhered to where its application will result in an unjust decision.” (Di Genova v. State Board of Education (1962) 57 Cal.2d 167, 179 [18 Cal.Rptr. 369, 367 P.2d 865].) The order sustaining the demurrer to the Complaint stated, “The judicially noticeable documents indicate that the UPA has determined that that Defendant committed minor violations, which is no...

Excerpt: ... §§6:638‐639) Regarding Plaintiffs/Cross‐Defendants' concern that allowing the amendment would require postponement of trial because an arbitration would have to occur first (CA Civil Code §845) prejudicing Plaintiffs, (Opposition pg. 5), since both the Complaint and Cross‐Complaint pray for equitable relief, CA Civil Code §845 would not be applicable pursuant to Cal Code Civ Proc § 1141.13. Counsel are requested to appear at the heari...

Excerpt: ...he motion to strike is denied. Turning to the motion for an order that the attorney‐client privilege has been waived, Cal Evid Code § 954 Lawyer‐client privilege: Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The...

Excerpt: ...0 days after the rendition of the judgment or the making of the order being appealed”. The oral pronouncement of the order in open court generally marks the beginning of the time to appeal, unless a statute requires a certain form of order, in which case the order is only effective when made in the statutory form. However, if the matter is taken under submission and the court issues a written order, which is both filed and served on the parties...

Excerpt: ...se.” ' Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163 [57 Cal.Rptr.3d 755].) No opposition having been filed and thus no prejudice having been shown, the unopposed motion for leave to amend the FAC and to file a Second Amended Complaint is granted. ...

Excerpt: ...sserts that Plaintiff's claims based on actions which occurred prior to 2020 are barred by the one year statute of limitations applicable to FEHA claims. Plaintiff's 1st through 3rd causes of action are based on actions alleged to have occurred both before and after 2020; and a demurrer does not lie to only a part of a cause of action (Weil & Brown, California Civil Procedure Before Trial, §7:42.2). Plaintiff's 4th and 5th causes of action are b...

Excerpt: ...he Labor Commissioner, uncertainty, and the discovery is a pattern of abuse. Ruling: Objections are overruled. AMH is ordered to produce a verified response with all responsive documents without objections. LAW AND MOTION TENTATIVE RULINGS DATE: NOVEMBER 16, 2021 TIME: 8:30 A.M. 2 RPD 2: All documents related to any and/or all of your interactions (of any kind in any form including communications) with Datson's wife related to Ms. Hoffman in any ...

Excerpt: ...er cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. In ruling on the petition for writ of mandate, the trial court's task was to determine, exercising its independent judgment, whether the hearing officer's decision was supported by the weight of the evidence. (McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 523 [7 Cal...

Excerpt: ... Prayer for Relief) LAW AND MOTION TENTATIVE RULINGS DATE: NOVEMBER 10, 2021 TIME: 8:30 A.M. 2 Therefore, pecuniary compensation would afford adequate relief, moreover it would not be extremely difficult to ascertain the amount of compensation which would afford adequate relief.(If monetary damages afford adequate relief and are not extremely difficult to ascertain, an injunction cannot be granted. (Thayer Plymouth Center, Inc. v. Chrysler Motors...

Excerpt: ...) For purposes of motions for summary judgment and summary adjudication: (2) A defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable is...

Excerpt: ...ney paid out or loaned at the defendant's specific request. The cases do not require such a request as an element of the claim. The principles permitting conclusory pleading of common count claims apply to “a common count for moneys paid, laid out, expended, loaned or advanced to and for the defendant by the plaintiff at the former's instance and request.” (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 809‐810 [263 Cal.Rptr.3d 344].) Her...

Excerpt: ...746].) Defendant moves for judgment on the pleadings on the grounds that the conflict between the Adult Use of Marijuana Act and the asset forfeiture statutes is such that there has been a repeal by implication of asset forfeiture laws as to all marijuana conduct...,the Act delineates the specific financial and asset forfeiture repercussions for unlicensed activity is strictly limited to civil penalties and forfeiture of the marijuana..., the Act...

Excerpt: ...ere was a prejudicial abuse of discretion in that the agency has not proceeded in a manner required by law (Pub. Resources Code, § 21168.5, Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426.). The documents which are the subject of the County's motion to augment demonstrate that on 8/24/21 the County Zoning Board conducted a public hearing re: the formation of an Assessment District for the ...

Excerpt: ...se of action cannot be separately established, even if that element is separately pleaded. (p) For purposes of motions for summary judgment and summary adjudication: (2) A defendant or cross‐defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cau...

Excerpt: ... to the subject property before RMF brokered the loan between Oliver Seville and SDC, and she was therefore not a party to the loan transaction; and (2) she has failed to allege facts to support a duty under Biakanja. Plaintiff's assertion that she was the “putative” borrower from SDC and an intended beneficiary of the loan transaction as a result of the Court's nunc pro tunc order is unavailing. That order was made long after the loan transa...

Excerpt: ... BRAD DATSON The motion is denied. On 10/16/19 Plaintiff's counsel personally served Hoffmann's first set of requests for admissions on Brad Datson which consisted of 23 RFA's. (Ex. A to Shearer Dec.) The responses were due served within 30 days after service of the RFA's, i.e. on or before 11/15/19. (CCP § 2033.250) On 11/27/19 verified responses were served without objection. (12 days late). (Shearer Dec. filed 3/30/21 ¶ 2) Cal Code Civ Proc ...

Excerpt: ...ment of a cause of action for breach of fiduciary duty. (see FAC pp. 2:12‐3:1, 3:2‐8, 3:23‐ 25) Turning to the Second cause of action for negligence, Plaintiff has pleaded each element of the cause of action, (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082; FAC ¶¶ 7,13,14) therefore the demurrer is overruled. The demurrer to the Third cause of action for gross negligence is overruled. Plaintiff has pleaded each element...

Excerpt: ...onable probability of success on the merits; and (2) who will suffer greater injury? (Weil & Brown, Civ. Pro. Before Trial, §9:522, 9:527, 9:531,) The burden of proof is on the moving party to show all elements necessary to support the issuance of a preliminary injunction. (Weil & Brown supra at 9:632.1.) In ruling on the motion, the court is to evaluate the potential merits and interim harm factors, and the greater the showing on one, the less ...

Excerpt: ... act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)" If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88) The inquiry under the catchall provision calling for a two‐part analysis is rooted in the statute's purpose and internal logic. F...

Excerpt: ... of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. Unless the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion. (Le Francois v. Goel (2005...

Excerpt: ...court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void. (Hampton v. Superior Court of Los Angeles County (1952) 38 Cal.2d 652, 655 [242 P.2d 1].) Here, the 6DCA stated in the Remittitur, “Subdivision (b) of section 389 giv...

Excerpt: ...onable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193‐ 1194.) Defendants have met their burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established by showing they were holder of the note at the time of the Trustee's ...

Excerpt: ...leave to amend. The demurrer to the Third cause of action for Intimidation is sustained with leave to amend as the allegations are vague, uncertain, and unintelligible. Plaintiff's allegations do not state sufficient facts to constitute a cause of action for retaliation (Civil Code §1 942.5), therefore the demurrer to the Fourth cause of action is sustained with leave to amend. The allegations the Fifth cause of action for Negligent Breach of Co...

Excerpt: ...e that a confidential relationship existed. (Id at 1083.) Here, a signed retainer Agreement governed Hansen's involvement in the 2013 Action. The Agreement explicitly describes the purpose and scope of Mr. Hansen's engagement in the 2013 Action. Attorney Kevin Cody retained Mr. Hansen as an expert witness on behalf his clients Richard Bartel and Ellen Stok. Hansen was engaged to “perform services as an expert consultant and possible witness” ...

Excerpt: ...s that in order to serve process in the PRC, as per the US Supreme Court, service must be pursuant to the Hague Service Convention. (https://www.legallanguage.com/international‐ litigation/service‐of‐process/countries/China/ pg.1) As to the exception that the Hague Convention shall not apply where the address of the person to be served with the document is not known, the only reasonable construction of the “address of the person to be ser...

Excerpt: ...bt may give rise to a LAW AND MOTION TENTATIVE RULINGS DATE: OCTOBER 5, 2021 TIME: 8:30 A.M. 3 claim of intrusion upon seclusion.(Masuda v. Citibank, N.A. (N.D.Cal. 2014) 38 F. Supp. 3d 1130, 1134.) Plaintiff has alleged sufficient facts to constitute a cause of action, therefore the demurrer is overruled. The demurrer to the Fourth Cause of Action for violation of the Telephone Consumer Protection Act (47 USCS § 227) is overruled. Plaintiff all...