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...

Excerpt: ...acy to commit trespass or conversion, (Opposition pg3:27), except in limited circumstances which do not apply here, a party to a contract cannot recover damages in tort for breach of contract... The Court's job is to determine whether the essence of the claim is fundamentally based on conduct that sounds in contract or in tort. (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 181 [8 Cal.Rptr.3d 840].) The es...

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: ...ges on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. Taylor v. Superior Court of Los Angeles County (1979)24 Cal. 3d 890, 895‐896.Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act fro...

Excerpt: ...1999) 75 Cal. App. 4th 486, 496; Valbona v. Springer (1996) 43 Cal.App.4th 1525. Willfulness does not require a wrongful intention. A simple lack of diligence may be deemed willful where the party knew there was an obligation, had the ability to comply, and failed to do so. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787. The party on whom the discovery was sought has the burden to show that the failure was not willful. Id. at 788. On March 2, 20...

Excerpt: ...ll and opening of the private patio areas to unfettered public access and the Rio Del Mar Flats Stormwater drainage project, in a full EIR; and (c) to comply with the Coastal Act's requirement that the County obtain a CDP in a noticed hearing for its opening of a new public walkway and installation of appurtenant structures. The threshold issue is whether the project was adequately described in the County's Notice of Exemption. For the reasons se...

Excerpt: ... supports sealing the records. (3) A substantial probability exists that the overriding interest will be prejudiced if the records are not sealed. (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. The facts supporting these findings are as follows: During discovery, Defendant produced pursuant to a signed and stipulated protective order (filed 5/4/21) unredacted Exhibits 3�...

Excerpt: ... finds that none of these ground have merit, and the motion is therefore denied. 1. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial [§657(4)]: As “new evidence” Petitioner asserts that “the trial court failed to examine the fact that the Sixth District Court of Appeal, the higher court where she filed her action in the first L...

Excerpt: ... is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement that party bears the burden of producing evidence and proving by a preponderance of the evidence any fact necessary to that defense. Rosenthal v Great Western...

Excerpt: ...quasi‐specific performance of contract to make will/trust; (7th c/a) declaratory relief; (8th c/a) quiet title; (9th c/a) slander of title; (11th c/a) reclamation of decedent's property; and (12th c/a) false promise Defendants assert that Plaintiff's claims all arise from the Warranty Deed which the decedent, Don Harris Lee, executed on October 29, 2012 and recorded on November 5, 2012; that as the transferee Plaintiff had knowledge of the Warr...

Excerpt: ... manufacturer furnishing finished products, materials, or articles of merchandise who does not install or contract for the installation of those items) the O'Bannon declaration says he delivered various items to the jobsite. (O'Bannon Dec. filed 7/16/21 pg.1:26) In addition, the contract is for building the cabinets, not installing. It says on the bottom of the contract, “No install quoted”. (Ex 1 to complaint) Because Plaintiff did not insta...

Excerpt: ...ion for negligence, for failure to file a timely government tort claim; and is denied as to the causes of action for equitable indemnity, apportionment of fault and declaratory relief. Summary judgment/adjudication as to Plaintiffs' complaint The City moves for summary judgment/adjudication as to Plaintiffs' complaint on the following grounds: • Inverse condemnation: (1) Plaintiffs cannot establish the “public project” element of this claim...

Excerpt: ...il Procedure Before Trial§ 8:2235) Plaintiff is ordered to provide the discovery responses subject of this Court's orders filed 3/16/21 (RFP's, form and special interrogatories) within 15 days of service of this order. In addition, further proceedings by Plaintiff are hereby stayed until the orders for discovery filed 3/16/21 are obeyed. Defendants are awarded further monetary sanctions in the amount of 8 hours x $260.00/hour =$2,080.00 against ...

Excerpt: ...onditional acceptance for value for proof of claim upon DCSS services contract for determination of meeting of the minds, fraud of the contract and/or unconscionable contract and/or agreement for commercial discharge”, “Notice of Fault [sic] and opportunity to cure and contest acceptance”, “Affidavit of notice of default”, and “Certificate of non‐response” are not contracts. “All that is required of a plaintiff, as a matter of p...

Excerpt: ... allegations do not suffice." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. The pleading should be sufficient '"to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud." ' " (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216‐217). Thus, a plaintiff must plead facts which show how, when, where, to whom, and by what means ...

Excerpt: ...d 95].) The findings of the adjudicatory agency are presumed to have been supported by substantial evidence. The petitioner in an administrative mandamus proceeding bears the burden of establishing that the agency's decision was invalid and should be set aside...The reviewing court must resolve reasonable doubts in favor of the administrative findings and decision." "[We] may reverse an agency's decision only if, based on the evidence before the ...

Excerpt: ...of the CSA.. Amendment No. 2 to the 2005 LRDP has not been ordered set aside or rescinded by the University. Plaintiffs' claim based on the approval of Amendment No. 2 therefore presents a live and justiciable controversy. The motion to strike portions of the Second Amended Complaint is granted in part, and denied in part, as follows: 1. The motion to strike Plaintiffs' claims challenging the University's 2019 approvals of the SHW Project (the ap...

Excerpt: ...pital Dist. (1992) 2 Cal.4th 962, 966‐967.) No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on a demurrer. (Weil and Brown CA Practice Guide (TRG 2021) Civil Procedure Before Trial § 7:44) Turning to whether the inconsistent allegations of the SAC should be disregarded under the sham pleading doctrine, Plaintiff may plead alternative bases for recovery (4 Witkin CA Procedure (5th...

Excerpt: ...t acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion. The word “interferes” as used in the Bane Act means “violates.” The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, intimidation or coercion”), tried to or did prevent the plaintiff from doing somet...

Excerpt: ... in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced'". The exception promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right. (Green v. Obledo (1981) 29 Cal.3d 126, 144.) Petitioners has the “public interest” of all citizens of Santa Cruz County t...

Excerpt: ... here, because both actions are proceedings in personam. Gregg v Sup. Ct. (1987) 194 Cal. App. 3d 134,137. The court finds that the discretionary factors which the court is to consider do not “weigh strongly” in favor of a stay, as required by Farmland Irr. Co. v Dopplmaier (1957) 48 Cal. 2d 366. There is at least some question as to whether this action and the federal court case, Police Retirement System of St. Louis v Granite Construction I...

Excerpt: ...rden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. LAW AND MOTION...

Excerpt: ...s have been alleged here to constitute a cause of action against Jakob Laggner, Nicole Laggner, and Reefside Health Center. Turning to the Second cause of action for breach of contract, the reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded (Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 966‐967) The Amended Option Agreement is between ICG, its subs...

Excerpt: ...spital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713.) Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. The adjective “...

Excerpt: ...2, 966‐967) As a general rule, in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children's Television, Inc. v. General Food...

Excerpt: ...tificates of compliance. [Defendant's RFJN Exhibits B,C, and D]. Pursuant to Health & Safety Code §25404.1.2(a)(2) this creates a rebuttable presumption that the violations were classified as “minor”. [“In any proceeding concerning an enforcement action taken pursuant to this section, there shall be a rebuttable presumption upholding the determination made by the UPA regarding whether the violation is a minor violation.”] The complaint f...

Excerpt: ...es of action. The City asserts that it is not seeking reconsideration of that ruling, but includes these causes of action in its demurrer only to preserve appeal rights. The prior ruling therefore stands. II. The City's general demurrer to the new causes of action The Third Amended Complaint asserts four new causes of action, entitled Taxpayer Suit/Citizens Suit/Public Interest Suit/Injunction” (3 rd c/a); Declaratory relief cause of action (4t...

Excerpt: ...erification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant”. When Plaintiff appeared at the May 25 hearing on that motion the Court ordered her to provide code complaint verifications by June 4, 2021. Plaintiff was served with a Notice of Entry of the written Order on June 11, 2021, after the deadline for providing the verifications had expired. [T]wo facts are a...

Excerpt: ...ourt further finds that Petitioner's declaration fails to comply with CRC 3.1324(b), as it does not state which three new causes of action have been added, or their effect; does not fully LAW AND MOTION TENTATIVE RULINGS DATE: July 27, 2020 TIME: 8:30 A.M. 2 state why the addition of 169 paragraphs are necessary; and does not state when the facts giving rise to the SAP were discovered, or why Petitioner did not file her motion earlier. Finally, t...

Excerpt: ...ween Watsonville Cadillac Buick GMC and Defendant. Plaintiff has further established that the RISC was assigned to Plaintiff. Parties can agree to delegate to the arbitrator the decision on threshold or “gateway” issues of the validity, enforceability and scope of an arbitration agreement, as long as two conditions are met: (1) the language of the delegation is “clear and unmistakable”; and (2) it is not subject to revocation under standa...

Excerpt: ...of the Statement of Decision in Case No 19CV03692 confirms that Plaintiff's claim for injunctive relief in that action was litigated through trial, and that Plaintiff's post‐trial attempt to amend the complaint to remove and/or strike the claim for injunctive relief was denied. A second action for damages is barred under the doctrine of res judicata where the first suit did not seek purely declaratory relief, and the second suit was based on th...

Excerpt: ...at they do not have the ability to satisfy the bond requirement, (Barragan Dec. filed 6/9/21¶ 18), the Court will use its equitable powers and set the bond amount at one half the amount of the judgment. $908,097.67 ÷2= $454,048.83. Defendants may apply (or may be credited for) the $130,520.52 in funds levied in Defendants' Chase Bank Accounts pursuant to Plaintiff Valley Fresh Produce Inc.'s Writ of Execution. Therefore, in addition to the $130...

Excerpt: ...tories which request private financial information from Mr. Tabatabai which is unrelated to his interest in Enabledware and/or the value of that interest”. The Court's tentative decision further stated that it would only entertain a further motion to compel a response to the interrogatories “ upon (1) a showing that the parties have met and conferred in good faith; and (2) the identification of the specific interrogatories which remain in dis...

Excerpt: ...nding shall give the action or proceeding preference over all other civil actions, in the matter of setting the action or proceeding for hearing or trial, and in hearing or trying the action or proceeding, so that the action or proceeding shall be quickly heard and determined. CEQA's purpose to ensure extremely prompt resolution of lawsuits claiming noncompliance with the Act is evidenced throughout the statute's procedural scheme. Such suits hav...

Excerpt: ...um on November 18, 2020. Petitioner filed this action nearly four months later, on March 8, 2021. A challenge to an action under CEQA must be brought within 30 days of the date a NOD is filed, or in this case by December 18, 2020. Pub. Res. Code §21167(e.). Respondent therefore demurrers to the Petition on the basis that it is time barred. The demurrer is sustained. CEQA imposes intentionally short and strict statues of limitations to ensure pro...

Excerpt: ...aused by the willful or negligent act of lessor or lessor's agents or employees. (SVP X‐C filed 4/22/20 ¶ 12 emphasis added) The FAC sets forth one cause of action on behalf of plaintiff Judy Feldman, premises liability and one cause of action on behalf of Scott Feldman, loss of consortium. (FAC filed 4/9/19 caption, ¶ 10, pp. 4‐6) The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, a...

Excerpt: ...ied World National Assurance Co. (2017) 18 Cal.App.5th 881, 885.) Defendant does not dispute that he owes a personal debt of approximately $250,174.81. (Opposition p.2:6) In answers to special interrogatories, Blume Distillation conceded it owed Plaintiff $195,000.00; Whiskey Hill Farms owed $45,000; Blume owed $7,895.00. (Ex. M‐1 attached to Reply and Ex. A to Ex. M‐1) Re: the $100,000.00 “invested” in Blume Distillation, Defendant does ...

Excerpt: ...y to contracts generally apply to settlement contracts. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) Cal Civ Code § 1688 Rescission extinguishes contract A contract is extinguished by its rescission. Cal Civ Code § 1689 When party to a contract may rescind (b) A party to a contract may rescind the contract in the following cases: (2) If the consideration for the obligation of the rescinding party fails, in whole or in...

Excerpt: ...sions of the Hearing Committee when evidence is being received. (AR 1; see also Petitioner's Memo at 4:17‐20.) The P&T Hearing Committee requested guidance from UCJR, a systemwide committee tasked with interpreting the Code of the Academic Senate and issuing interpretive guidance and rulings (AR 1‐2 and 18.) which stated in an email dated 4/28/20: “You put to us a question about the need for in‐person proceedings in the context of hearing...

Excerpt: ... and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable: (1) The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4. 'A petitioner must show more than that he did not discover a fact...

Excerpt: ... evidence any fact necessary to its defense.” LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 21, 2021 TIME: 8:30 A.M. 4 California law governs the determination as to whether an agreement was reached “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is rai...

Excerpt: ...h in connection with a public issue.” If the court determines that the defendant has made this threshold showing, the burden shifts to plaintiff to demonstrate a probability of prevailing on the claim, by showing that the claim is both legally sufficient, and that it is supported by a prima facie showing of facts to LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 18, 2021 TIME: 8:30 A.M. 2 support a favorable judgment. Weil & Brown, California Proc...

Excerpt: ...at the Legislature has suggested that, where possible, the courts should impose partial limitations rather than outright denial of discovery. The privacy interests of fellow employees elsewhere in California could have been addressed by conditioning discovery on a Belaire‐West notice. (Williams v. Superior Court (2017) 3 Cal.5th 531, 559) Regarding the motion to compel further response to Special Interrogatory Nos. 4 and 5, the Court finds that...

Excerpt: ...t any time before or after commencement of trial, in the furtherance of justice”. CCP §573. However, an amendment after the conclusion of the trial, with the evidence in and arguments completed, is permissible in only three situations: (1) to conform to proof; (2) to correct a mistake or imperfection in the pleading; and (3) to bring in new issues, necessitating a reopening of the case for further evidence. Witkin, 5 Cal. Procedure, “Pleadin...

Excerpt: ... an attachment order “shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein”. CCP §482.040. Conclusory or generalized statements in a declaration in support of an application for a writ of attachment “do not suffice”, and ...

Excerpt: ...do not have the ability to satisfy the bond requirement, (Barragan Dec. filed 6/9/21¶ 18), the Court will use its equitable powers and set the bond amount at one half the amount of the judgment. $908,097.67 ÷2= $454,048.83. Defendants may apply (or may be credited for) the $130,520.52 in funds levied in Defendants' Chase Bank Accounts pursuant to Plaintiff Valley Fresh Produce Inc.'s Writ of Execution. Therefore, in addition to the $130,520.52,...

Excerpt: ...eir duties with respect to the care of Charles McDermott's Foley catheter while he was in their care and custody, and in failing to properly train and supervise their staff; and that this neglect was the cause of Mr. McDermott's death. Defendant Healthy Living moves for summary judgment/adjudication on the basis that its nurses met the standard of care in all respects, including the care of Charles' catheter; and that this demonstrates that Defen...

Excerpt: ... CCP § 340.5), she must allege (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638) and the allegations must be pled with specificity, “In California, fraud must be pled specifically; general and conclusory allegations do not s...