Excerpt: ...e attorney. (Id at pp 178‐179) Therefore the work product privilege does not apply. The motion to compel is also granted as to form interrogatory 13.2. Interrogatory 13.2 merely asks for information re: whether a report was made and if so by whom, therefore disclosure is not protected by the attorney client or work product privileges. (Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68‐ 69.) Plaintiff is awarded sanctions against Defendan...

Excerpt: ... by the court, no demurrer having been sustained or being then pending. (CCP 586(a)(3). (6 Witkin CA Procedure (5th Ed.2008) PWT §§143,147) However, CCP § 587 requires that an application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant's attorney of record or, if none, to the defendant at his o...

Excerpt: ...between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits. The rule is established and enforced not "so much to protect the rights of parties as to protect the rights of Courts of coordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice." (Plant Insulation Co. v. Fibreboard Corp. (1...

Excerpt: ...3, *31.) The doctrine "precludes recovery for 'purely economic loss due to disappointed expectations,' unless the plaintiff 'can demonstrate harm above and beyond a broken contractual promise. (Martinez v. Welk Group, Inc. (S.D.Cal. 2012) 907 F.Supp.2d 1123, 1134.) Here, the duty that gives rise to tort liability is dependent on the contract. The Lease states at Clause 11, “pursuant to the Lease, Tenants will keep the premises clean, sanitary, ...

Excerpt: ...An award of attorney's fees is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. CCP §916. In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140. Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs. Attorney fees are perm...

Excerpt: ...e based on CCP § 394(a) is inapplicable. In addition, AMH has failed to show actual prejudice to the moving party or that a change of venue would promote justice or convenience of witnesses, therefore the motion is denied based on CCP § 397. Lastly, AMH has failed to show circumstances of the likelihood, or the appearance of bias and the motion is denied on this ground. Sanctions Sanctions are not awarded. Each side will reserve the right to cl...

Excerpt: ...pecified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Article 28 of the Lease provides that if either party undertakes litigation against the other in connection with the lease, the prevailing party as determined by Civil C. § 1717(b)(1) is entitled to reasonable attorney's fees and costs. In view of the Court's ruling that Plaintiff shall take nothing by its complaint and judgment shall iss...

Excerpt: ... in which he said he moved out of 211 Blackburn no later than 3/15/20 (Tim Kephart Dec. filed 2/24/21 ¶2) and his Cross‐complaint in which he said that he moved out of 211 Blackburn Street on or about June 2020, (Cross‐complaint filed 10/19/20 attached as Ex. 1 to Hamerslough Dec. filed 3/5/21 at ¶ 22), Tim Kephart will be ordered to pay Petitioner $3,000.00 rent for March ‐June 2020 or 4 x $3,000.00 = $12,000.00 within 30 days of the dat...

Excerpt: ...s filed that Margot Schwartz claimed that she and her brother were Directors of the Foundation. (See Ex. D to Margot Schwartz Declaration, the Corporation Statement of Information filed with the CA Secretary of State on 9/11/20 designating Margot and Noah Schwartz as officers and Erik Dryburgh as agent for service of process; email from Donald dated 10/22/20 asking Margot, “Do you have an attorney on the Schwartz Foundation”, Ex. H to Margot ...

Excerpt: ...rit and interim‐harm factors is tipped in favor of Defendants, who will suffer prejudice if an improper injunction is issued. Authority for issuance of the requested injunction CCP §526(a)(2) and (4) authorizes the issuance of an injunction where the moving party has an inadequate remedy at law or will suffer irreparable harm These two criteria are often related and may be present, despite the availability of monetary damages, where a defendan...

Excerpt: ...alistic prospect that the party enjoined intends to engage in the prohibited activity.” (Epstein v Sup. Ct. (2011)193 CA4th 1405, 1411) Based on the affidavits and the allegations in Plaintiffs' Complaint that “Through further communications between counsel, Defendants have modified their statement that they intend to block the Gravel Road as of 1/31/21, now claiming they will refrain from blocking the path temporarily, while Plaintiffs consi...

Excerpt: ... within the redemption period. Additionally, the three year limitations period on Plaintiff's inverse condemnation claim began to run no later than October 6, 2017, when the sale occurred, and Plaintiff did not file his complaint until October 22, 2020. Plaintiff's claim for inverse condemnation is therefore time barred under CCP §338(j). The court is not persuaded by Plaintiff's assertion that the five year statute of limitations period for adv...

Excerpt: ...on‐Liability of Landlord: Tenant agrees to and shall defend and indemnify Landlord against all claims. liability loss and expense by reason of injury to person or property, or both. including without limitation. injury to the person or property of Tenant, its agents. officers, employees,. licensees or Invitees arising out of the condition of the Premises or any portion thereof over which Tenant has control and a duty to repair and maintain unde...

Excerpt: ...VilaVet Labs (2016) (6 CA5th 1178, 1184). Based on the affidavits submitted, it appears that the status quo or the last actual peaceable, uncontested status which preceded the pending controversy was a gate to Plaintiffs' property unobstructed by mounds of dirt or mailboxes. Moreover, there is a reasonable probability that Plaintiffs will prevail on the merits at trial and that Plaintiffs would suffer greater injury if the injunction were not gra...

Excerpt: ...ohol, refused to take both a breath and a warrantless blood test. The court noted that the question of whether a motorist can be subjected to a license suspension for the failure to submit to a warrantless blood test is an open question, and therefore chose to “err on the side of caution” in affirming Espinoza's license suspension based only on her failure to take a breath test. Petitioner contends that this suggests that a license suspension...

Excerpt: ...speculate as to which causes of action the issues Defendants seek to have adjudicated relate, and as to which causes of action their UMFs are directed. Defendants have failed to meet their threshold burden of proof on their claim that Plaintiff does not have an easement under any theory Defendants have failed to meet their threshold burden of proof on their claim that Plaintiff does not have an express easement for access to its facility from the...

Excerpt: ..., breach of fiduciary duty and a cause of action entitled “dual representation”. Since the complaint still includes these causes of action summary judgment is not available to Plaintiff. Regardless, Plaintiff has either failed to meet his threshold burden of proof or triable issues of material fact exist as to several elements of his cause of action for fraudulent concealment: On the element of concealment of a “material” fact: Plaintiff ...

Excerpt: ...versity's sanctioning options range from dismissal to loss of privileges to restitution and probation. (Ex. G to Eklof Dec, pg.19 of 22) The primary remedy Plaintiff seeks through this action is damages, but there is no effective administrative remedy available to Plaintiff. Therefore, the demurrer is overruled on this ground. The demurrer to the First Cause of Action for violation of the Unruh Act (CA Civil Code § 51) is sustained without leave...

Excerpt: ... 2020; and (2) Labor Code §2780 now provides exceptions to the “ABC” test set forth in Dynamex Operations W., Inc. v Superior Court (2018) 4 Cal. 5th 903, for determining whether a worker is an employee or an independent contractor.; and the exception set forth in §2780 (I) for “independent radio promoters” applies to Plaintiff. The Second Amended Complaint alleges that Plaintiff stopped working at KCSO in May 2020, four months before L...

Excerpt: ...sale is voidable because of irregularities in the sale notice or procedure, the borrower must offer to pay the full amount of the debt for which the property was security. The borrower must pay, or offer to pay, the secured debt, or at least all of the delinquencies and costs due for redemption, before commencing the action. “The rationale behind the rule is that if [the borrower] could not have redeemed the property had the sale procedures bee...

Excerpt: ...n (FAC ¶25). Unlike the case or controversy limitation on federal court jurisdiction, which requires that the plaintiff have a personal stake in the outcome of the controversy, state court jurisdiction has no such limitation. Singleton v Wulff (1976) 428 U.S. 106, 113‐116. Instead, a plaintiff challenging a legislative or executive action in a California court must only show that “he or she is sufficiently interested”. Weatherford v City o...

Excerpt: ...the “litigation exception” set forth in 18 USCS § 2721 (b)(4) (“the Act”), does not entitle Petitioner to the information he seeks. (Petition p. 4:6, Motion p.5:17) The US Supreme Court has directed that the exception is to be construed narrowly: the “exception to a “general statement of policy” is “usually read . . . narrowly in order to preserve the primary operation of the provision”. (Maracich v. Spears (2013) 570 U.S. 48, ...

Excerpt: ...ons Petitioners assert that this action is not barred by the claims splitting doctrine and res judicata, because the Dependency Count did not adjudicate the issue of whether Director Timberlake's decision was arbitrary, capricious and lacking in evidentiary support. However, both actions involve the same ultimate issue: the validity of the Department's final decision; both actions involve the same primary right: the Petitioner's custodial relatio...

Excerpt: ...ble to give a knowing and intelligent consent due to a concussion suffered in the accident which preceded his arrest. The hearing officer's rejection of this contention is supported by the evidence— specifically the arrest report and supplemental report, which indicate that Petitioner was responsive, answered Officer Vasquez' questions, and gave oral consent to a blood test. Petitioner presented no medical evidence to support his contention tha...

Excerpt: ...is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery and (contrary to popular belief), fishing expeditions are permissible in some cases. (Stewart v. Colonial Western Agency, Inc. (2001) 87 C...

Excerpt: ...fendants on their claim that Plaintiff is in breach of the MIPA, these obligations will remain unaffected. The court therefore finds that the issues involved in Plaintiffs' 6th c/a for declaratory relief with regard to the Exchange Interests and Rights for the Pledged Securities are severable from the issues involved in the arbitration. Pursuant to CCP Section 1281.4 the court exercises its discretion to limit the stay and permit Plaintiff to con...

Excerpt: ...rden of showing there is no other plain, speedy and adequate remedy. According to the Declaration of Dylan Fukai, on 10/21/20, the County informed Petitioner that his writ of execution would be enforced as soon as a court clerk transferred his existing writ onto the updated EJ‐130 form. Moreover, the County filled the new form out for him and instructed him how to obtain a new writ. (Declaration of Dylan Fukai, ¶ 3, Exhibit A.) Petitioner's ar...

Excerpt: ...r the position that this allegation is required for a common counts claim based on a quantum meruit theory. However, E.J. Franks Construction, Inc. v Sahota is an appeal from a judgment, not a demurrer, and involves issues of proof not pleading. Plaintiff does not cite any authority for the position that a common counts claim is inadequately pled unless it includes this specific allegation. Plaintiff/Cross‐defendant demurs on the further basis ...

Excerpt: ...suffer emotional distress, knowing that plaintiff was present when the conduct occurred; (3) that plaintiff suffered severe emotional distress; and (4) that defendant's conduct was a substantial factor in causing plaintiff's severe emotional distress. (CACI 1600.) A defendant's conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Liability for intentional infliction of emoti...

Excerpt: ... element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action. (p) For purposes of motions for summary judgment: (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 defend...

Excerpt: ...reement, and not as a trustee or in furtherance of its mission under its Articles of Incorporation. CFSC may therefore sue Encompass on the Services Agreement for breach of its fiduciary duty (1st c/a) and for breach of the Services Agreement (2d c/a) under an agency theory. The court is not persuaded by Encompass' assertion that a trustee cannot sue a beneficiary even if the subject of the lawsuit is unrelated to the trust. Encompass' reliance o...

Excerpt: ...is four years. Defendant's failure to make distributions and to provide the profit and loss statement followed by his denial of the contract (i.e. repudiation) in the 7/14/15 letter constituted a total breach of the agreement. “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. A plaintiff need no...

Excerpt: ...he same grounds instead of moving to strike the new and improper allegations/argument, the County has essentially invited the court to reconsider the prior ruling. To the extent that the court is now required to engage in such reconsideration, without adherence to the jurisdictional requirements set forth in CCP §1008, the court will exercise its inherent authority to do so pursuant to Le Francois v Goel (2005) 35 Cal 4th 1094. On reconsideratio...

Excerpt: ...d cause of action for wrongful foreclosure which is barred by Res Judicata. (see further discussion below) LAW AND MOTION TENTATIVE RULINGS DATE: JANUARY 4, 2021 TIME: 8:30 A.M. 2 The demurrer to the First cause of action for breach of contract is sustained without leave to amend for Plaintiff's failure to allege a contract and her performance. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745; Goodman v. Kennedy (1976) 18 Ca...

Excerpt: ... and attorneys have a duty of loyalty to their clients. Thus, while an attorney must represent his or her clients zealously within the bounds of the law a broker only needs to use reasonable care to represent his or her client. (Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1123.) Plaintiff has failed to plead that Defendant failed to obtain insurance at the best possible price; ( Westrec Marina Mgmt v Jardine Ins. Brokers (2000) 8...

Excerpt: ...rbitrate between the parties (The trial court is to decide two “gateway issues” of arbitrability: (1) whether there is an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960.), the Court finds that Defendants have met their burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. The Decla...

Excerpt: ... no right to discovery in this Superior Court action and the Request was premature as the Court had not ruled on the Responding Party's Petition to Compel Arbitration. MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES FROM RAMOS The motion to compel further responses to Special Interrogatories Set One is granted. Mr. Ramos is ordered to serve verified responses to Connellys' Special Interrogatories Set One within 30 days of service of...

Excerpt: ...not disputed that Plaintiff delivered all of the originals of the documents at issue (Exhibits 3‐13 to the Amended Complaint) to Mr. Paetkau in August 2017; nor have they provided applicable authority for their assertion that Plaintiff is not entitled to use copies of these documents in this litigation, or that the documents should be sealed. In support of their claim that Plaintiff's “self‐help evidence gathering” is inappropriate, and t...

Excerpt: ...ling on the contract within the meaning of Section 1717 of the Civil Code.” (Notice of motion p.2:2) However, the motion to compel arbitration in case No. 18CV00897 was denied without prejudice; the Court's order says,“ A request for an order compelling arbitration has also been brought by the identical party in the earlier filed action [Case No. 18CV00848] and that action is more complex because of issues related to additional parties who ma...

Excerpt: ...nded complaint alleges facts that are sufficiently similar to those alleged in the original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading. The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits. This policy is satisfied when recovery under an amended complaint is sought ...

Excerpt: ...avor of Ralph Partners on July 9, 2018 (RFJN Ex. 11). Plaintiffs' claim against Ralph Partners, as well as against Defendant Geiser who is alleged to be the alter‐ego of Ralph Partners, is therefore barred by judicial estoppel/res judicata. In addition, the FAC fails to allege any facts to support the claim of fraud, and therefore fails to state a cause of action against Defendants, and is uncertain. Defendants' RFJN is granted in its entirety ...

Excerpt: ...egularities in the sale notice or procedure, the borrower must offer to pay the full amount of the debt for which the property was security. The borrower must pay, or offer to pay, the secured debt, or at least all of the delinquencies and costs due for redemption, before commencing the action. “The rationale behind the rule is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in...

Excerpt: ...s to Defendant Larsh's co‐defendants, NFMG, Susan White and Anthony Tirri, and has expressly alleged that NFMG and Susan White, dba Susan White Chiropractic, Inc., were her joint employers; and that her employment contract, “which she understood to be between and her employer‐NFMG” was signed by Susan White, President of NFMG, “on behalf of NFMG”. However, Plaintiff has not alleged any facts giving rise to an employment relationship w...

Excerpt: ...he trial court's broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234‐235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.) In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action s...

Excerpt: ...avor of Ralph Partners on July 9, 2018 (RFJN Ex. 11). Plaintiffs' claim against Ralph Partners, as well as against Defendant Geiser who is alleged to be the alter‐ego of Ralph Partners, is therefore barred by judicial estoppel/res judicata. In addition, the FAC fails to allege any facts to support the claim of fraud, and therefore fails to state a cause of action against Defendants, and is uncertain. Defendants' RFJN is granted in its entirety ...

Excerpt: ...tion or a defense thereto. (CA CCP § 437c (p)(1)) LAW AND MOTION TENTATIVE RULINGS DATE: NOVEMBER 24, 2020 TIME: 8:30 A.M. 2 As set forth below, Defendant's objections to evidence are overruled. Moreover, because Defendant has failed to provide any references to any supporting evidence for each of the material facts he contends are disputed, he has failed to create a triable issue of material fact. (CA CCP § 437c (b)(3) & (c)) Judgment shall be...

Excerpt: ...pel arbitration due to a risk of inconsistent rulings. Plaintiffs have failed to demonstrate that the Agreement is subject to revocation Plaintiffs contend that the Agreement is subject to revocation due to lack of mutual consent, lack of consideration, its illusory nature, and fraud. The parties mutually agreed to arbitrate any disputes covered by the Agreement. Therefore, pursuant to Civ. Code §1605, there was good consideration for the Agreem...

Excerpt: ...ty of the petitioner to make available to the trial court an adequate record of the administrative proceeding; otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “‘prejudicial abuse of discretion. (Foster v. Civil Service Com (1983) 142 C...

Excerpt: ...standard. The court finds that the Commission did exceed its authority by granting the County's request and reconsidering the September 27, 2018 decision on an issue other than those specified in County Personnel Regulations §130 (E)(7)(a). Factual background Petitioner appealed a disciplinary action taken by the Santa Cruz Sheriff's Office, demoting him from the position of Lieutenant to Sargent, to the Civil Service Commission. On September 27...

Excerpt: ...ty of the petitioner to make available to the trial court an adequate record of the administrative proceeding; otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “‘prejudicial abuse of discretion. (Foster v. Civil Service Com (1983) 142 C...