Excerpt: ...l distress is overruled. The motion to strike the allegations and prayer for attorney's fees is granted. Elder Abuse (2d c/a) The court finds that Plaintiff has failed to state a cause of action for elder abuse under a theory of either financial or physical elder abuse. W&I Code §15610.30 defines financial elder abuse as occurring when a person “takes, secretes, appropriates, obtains of retains real or personal property of an elder or dependen...

Excerpt: ...ect provides for the construction of oncampus housing for a number of students that exceeds the CSA's enrollment cap; and (2) that Defendants have breached §5.1 of the CSA by proceeding with the planning process for the 2020 LRDP, including the release of a Draft LRDP and a Final Proposed Land Use Map which locates all new student housing on campus, without first conducting a comprehensive analysis of potentially feasible alternative locations t...

Excerpt: ...tances, or law. DEMURRER The unopposed special demurrer for uncertainty and general demurer to the 2d, 3 rd, 4th and 5th causes of action asserted in the Second Amended Complaint is sustained, without leave to amend. On its own motion the court strikes the 1st, 6th, 7th and 8th causes of action as constituting improper matter. Discussion The court previously sustained a special demurrer to the First Amended Complaint for uncertainty, and also sus...

Excerpt: ...tive damages from the prayer of the SAC is granted. The balance of the motion is moot in light of the sustaining of the demurrer to the Third cause of action ...

Excerpt: ...o defend their insureds does not make the parties." .Southern Cal. Edison Co, v, State Farm Mut. Auto, Ins. Co., (1969) 271 Cal. App. 2d 744 749. Plaintiff's cause of action is therefore not properly brought against Farmers. Plaintiff is granted leave to amend only to the extent that he can assert a negligence claim against Farmers which is not based solely on a contract of insurance with a defendant‐driver. MOTION TO STRIKE The motion to strik...

Excerpt: ...Section 809 (enforcement of an easement) and Pen. Code Section 420.1 (penalties for obstructing an easement), only the allegations in the body of the complaint constitute the cause of action. Falahatir v Kondo (2005) 527 Cal. App. 4th 823,829. A demurrer therefore will not lie to the prayer. Caldera Pharmaceuticals, Inc. v Regents of U.C. (2012) 205 Cal. App. 4th 338, 368. Defendants' Requests for Judicial Notice The court denies Defendant's RFJN...

Excerpt: ...irmation of Verbal Agreement for Emergency Force Account Agreement dated January 25, 2017. ▪ Disputed issues of fact exist as to whether CALTRANS Project Engineers asserted control over debris hauling and dumping practices used by Graniterock. LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 25, 2020 TIME: 8:30 A.M. 2 Supporting evidence UMF No. 6, 10, 17—Plaintiffs' Exhibit. K [Lauderdale depo] , at 39:6‐15, 129:15‐130:9; Exhibit B [Wright d...

Excerpt: ...ctively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in the separate statement, the motion should be denied. Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 252 (Cal. App. 1st Dist. 2009. The court finds that triable issues of material fact are raised as to each of the issues submitted by Defendants for summary adjudication. Based on the declaration of Plaintiff's expert...

Excerpt: ...cident. Counsel are ordered to appear at the hearing by Court Call to set a trial date (possibly 5/26/20) within 120 days of the hearing (i.e. on or before 7/20/20). ...

Excerpt: ...cident. Counsel are ordered to appear at the hearing by Court Call to set a trial date (possibly 5/26/20) within 120 days of the hearing (i.e. on or before 7/20/20). ...

Excerpt: ...n enough to allow Defendants to understand the nature of the allegations against them, and the theory of liability in order to fashion an appropriate response. Any ambiguities can be clarified under modern discovery procedures. (Id.) The face of the first and second causes of action for breach of contract and breach of the implied rental agreement does not reveal that the oral rental agreement was for more than one LAW AND MOTION TENTATIVE RULING...

Excerpt: ... 2 Circle Dr., Santa Cruz, CA (“the Property”) at a trustee's sale, despite Plaintiffs' submission of a complete loan modification application. (First, Third, Fourth, and Fifth causes of action) As to those four surviving causes of action, the following paragraphs constitute the allegations of the operative TAC following the demurrer and motion to strike the TAC: ¶¶40(b), 56‐59, 78‐80,82‐86,88‐ 105,107‐113. (see Order on demurrer ...

Excerpt: ...ttorney's fees”. The parties agree that this provision is broad enough to encompass both contractual and non‐contractual claims. In this case Defendants successfully defended the contractual claims, while Plaintiff received a monetary award on the non‐contractual claim for conversion. The court is therefore guided by Maynard v BTI Group, Inc.(2013) 216 Cal. App. 4th 984, which holds that in this situation the general provisions of the Code ...

Excerpt: ...22.20.) 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.) Therefore the demurrer to the first cause of action for quiet title is overruled. As to the Second Cause of Action for violations of CEQA, the County's claimed public nuisance exemption from CEQA assumes that the C...

Excerpt: ...5 allows the trial court to impose sanctions for frivolous actions or tactics made in bad faith. Plaintiff has not followed the safe harbor provision in this section; the trial court cannot award appellate sanctions; and while this court's orders were affirmed on appeal the appellate court decision does not indicate that the appeal was necessarily frivolous or in bad faith; • CCP §2025.430 provides for discovery sanctions for failure to attend...

Excerpt: ...hood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.” CCP §2017.020 (a). The court finds that justice requires the issuance of the requested protective order to protect Plaintiff from unwanted annoyance, embarrassment, oppression, or undue burden and expense; and that the intrusiveness of this disc...

Excerpt: ... has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding. (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492) Defendant Kurrus was neither a named nor a fictitiously designated party to the proceeding when the original complaint was filed. Moreover, while the Supreme Court has a liberal attitude toward all...

Excerpt: ...parate trials of issues or causes of action will further convenience or “be conducive to expedition and economy”. The purpose of bifurcation is to promote judicial economy. Horton v Jones (1972) 26 Cal. App. 3d 952, 954. The preferred procedure is to try equitable actions first, where to do so will result in factual and legal findings that effectively dispose of the legal claims, and promote judicial economy. Weil and Brown, California Proced...

Excerpt: ...facbo (2003) 539 U.S. 52,55‐57; Valley View Health Care, Inc. v. Chapman (E.D.Cal. 2014) 992 F.Supp.2d 1016, 1029.) The FAA requires courts to place arbitration agreements “on equal footing with all other contracts” and a state rule that singles out arbitration agreements for disfavored treatment violates the FAA. (Kindred Nursing Ctrs. Ltd. P'ship v. Clark (2017) ___U.S.___ [137 S.Ct. 1421, 1423.) LAW AND MOTION TENTATIVE RULINGS DATE:FEBR...

Excerpt: ... good faith and fair dealing overlap, this does not necessarily mean that the gravamen of the two counts is the same. Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract. (Digerati Holdings, LLC v. Young Money Entertainment, LLC, (2011) 194 Cal. App. 4th 873, 884‐885) The demurrer to the Third cause of...

Excerpt: ...she knows no facts that support her contention that the alleged misrepresentations were false when made, to say so. Special Interrogatory no. 27: Plaintiff is ordered to review her response and if there are other items of "valuable restaurant equipment” that Defendants were allowed to use as part of the oral agreement to rent, Plaintiff should identify each item with particularity. Special Interrogatory no. 31. Because Plaintiff no longer conte...

Excerpt: ...d against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal. 4th 26, 38) (Contrary to Defendant's claim that section 2923.55 has been repealed and no longer exists, section 2923.55 was added by Stats 2018 ch 404 § 6 (SB 818), effective January 1, 2019.) Moreover because the motion is directed as to the entirety of the Complaint on the grounds that the Complaint fails to state any cognizable claims as to Defendant (Notice...

Excerpt: ...or gravamen of the claim, i.e the “allegedly wrongful and injury producing conduct that provides the foundation for the claims”. Weil and Brown, California Procedure Before Trial, TRG, §7:775. The act “underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech”; and the court must distinguish between “(1) speech or petitioning activity that is mere evidence related to ...

Excerpt: ...y affiliates of Monomoy Capital Partners III],West Marine was sold to Monomoy for only $12.97 per common share. Plaintiff should state what a fair and reasonable price per common share would have been but for the allegedly severely conflicted and flawed sales process. (Plaintiff's P's & A's p. 2:19‐28) • [Repass'] actions resulted in the Company entering into lease agreements for properties owned or controlled by Repass, netting him “millio...

Excerpt: ...attorney‐client relationship with the attorney, and the fees are actually incurred. Witte v Kaufman (2006) 141 Cal. App. 4th 1201; Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1324– 1325. Defendants have presented no evidence that Mr. Laydon was “in fact” retained and stood in an attorney‐client relationship with Defendants, or that the claimed fees were actually incurred (e.g. engagement agreement, amount billed, amou...

Excerpt: ...t provides that, “[In] Any action to enforce or interpret this Agreement… [the] prevailing party shall be entitled to reimbursement of fees, costs, and expenses incurred in connection with the action.” (Ex. A to Mohammed Declaration, Ex.A to Shields Declaration.) Cal Civ Code § 1717 Contract provision for attorney fees and costs provides: (a) In any action on a contract, where the contract specifically provides that attorney's fees and cos...

Excerpt: ...e the civil claims. Moreover, bifurcation is not necessary here to promote judicial economy, convenience of witnesses, and the interests of justice. Contrary to Encompass' claim that an early hearing on the Probate Petition can be conducted in a few hours, without the need for live witnesses or testimony, (Encompass P's & A's p. 15:4) the court in Estate of Bennett, (2008) 163 Cal. App. 4th 1303 held that in a contested hearing, it was error to f...

Excerpt: ...0:95.1, citing Nazir v United Airlines, Inc. (Cal. App. 1st Dist. 2009) 178 Cal. App. 4th 243, 252. Defendant has included UMFs No. 7 and 8 in its Separate Statement under Issue No 1 (the County is entitled to summary judgment because it is absolutely immune from liability pursuant to Govt. Code §831.2); under Issue No. 2 (the County is entitled to judgment on Plaintiffs' first cause of action because there was no notice of a dangerous condition...

Excerpt: ...�1033.5 (c)(1), (3). No declaration or other evidence has been presented demonstrating that fees have been incurred; and in the absence of any evidence as to how the fees were calculated there no way for the court to determine if the claimed fees are reasonable. The court may only award costs that are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”. CCP §1033.5(c) (2). In...

Excerpt: ...Quelimane Co. v. Stewart Title Guaranty Co.,(1998) 19 Cal. 4th 26, 38) Moreover, a demurrer is simply not the appropriate procedure for determining the truth of disputed facts.' The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.”(Fremont Indemnity Co. v. Fremont General Corp., (2007) 148...

Excerpt: ...nd partially oral”, and that the written agreement sets forth the terms of the agreement. He therefore meets the pleading standard for alleging a contract. Plaintiff alleges that the oral agreement was memorialized by the written agreement attached the FAC as Exhibit A. He further alleges on information and belief that it was signed by Defendants (i.e. signed by the party to be charged). A statute of frauds defense therefore does not appear on ...

Excerpt: ...den, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense. The contract here provides: No action of any character arising from or related to this contract or the performance thereof, the construction of the project or the furnishing of any work, labor services or material, shall be commenced by either party against the other more than two (2) years after completion or cessation of ...

Excerpt: ...edure Before Trial, TRG, §2:15. The naming of these two entities as plaintiffs therefore appears to have been done due to mistake or inadvertence. “If the original statement was due to mistake, inadvertence, inadequate knowledge of the facts, and the amended pleading seeks to allege the true facts as known, there is no admission, judicial or evidentiary”. 4 Witkin, California Procedure, 5th Ed., Pleading, §457. Given the nature of the case,...

Excerpt: ...omplaint for injunctive and declaratory relief in intervention. Counsel for the Parties are directed to meet and confer re: whether this case is appropriate for coordination with County of Santa Cruz et al. v. Bureau of Cannabis Control, et a1., Fresno County Superior Court, Case No.19CECG01224 (filed on April 4, 2019), pursuant to CCP §404 et seq. and CRC 3.520 et seq. The Parties are directed to appear at the hearing to advise the Court of the...

Excerpt: ...se allegations demonstrate that Defendant/Cross‐complainant has “created and/or assented to and has been using” the driveway that he now claims is illegal for 30 years, and he has therefore waived any claim of nuisance from illegal use; that “any violation of fire codes is a matter of fire safety, not access issues with undefined construction vehicles”; and therefore the Cross‐Complaint does not contain a cognizable theory of nuisance...

Excerpt: ...rtz Corp. 221 Cal. App. 4th 768, 775. The demurrer is overruled as to the first cause of action for declaratory relief. Plaintiff has stated a dispute and an actual controversy over the interpretation of the March 21, 2018 Purchase and Sale Agreement and the March 30, 2018 Addendum. The Court is unable to conclude as a matter of law that the terms of the agreement between the parties are clear and unambiguous on their face ‐ both as to the amou...

Excerpt: ...the settlement terms. The standard governing review of such determinations by a trial court is whether the court's ruling is supported by substantial evidence. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.) LAW AND MOTION TENTATIVE RULINGS DATE: SEPTEMBER 19, 2019 TIME: 8:30 A.M. 2 To make this factual determination, the court in its discretion may receive oral testimony or determine the motion on declarations. (Id.) A judge ruling on ...

Excerpt: ...ra at 9:632.1.) "It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." (Mazurek v. Armstrong (1997) 520 U.S. 968,972). LAW AND MOTION TENTATIVE RULINGS DATE: SEPTEMBER 18, 2019 TIME: 8:30 A.M. 2 Examining the first of these elements, whether Plaintiff has a reasonable probability of success on ...

Excerpt: ...rden then shifts to the plaintiff to establish a probability of prevailing on the claim.” (Haight Ashbury Free Clinics, 184 Cal. App. 4th 1539, 1547 (2010). The defendant may meet his burden by showing the act which forms the basis for the plaintiff's cause of action was a written or oral statement made before a legislative, executive, or judicial proceeding. (§ 425.16, subd. (e)(1).) Thus, if the defendant's act was a lawsuit,… the ...

Excerpt: ...pply for a new CDP application, and 2) in threatening civil penates if neither of these actions are taken. The Commission essentially argues that this claim is not ripe until Petitioners accept the Commission's authority by submitting a new CDP application; and that they must do so in order to exhaust their administrative remedies. However, the Commission's legal authority for its position that Petitioners “must” submit a new CDP application ...

Excerpt: ...ich a money judgment could be docketed against the defendant liable for such deficiency, such a judgment was not the sole object of the action but was an incident of the equitable relief sought. It might not even become necessary, as the mortgaged premises might bring a sufficient sum to pay the mortgaged debt and the circumstance, that in the contingency of the premises proving insufficient, a judgment for the deficiency might result, did not en...

Excerpt: ...defendant will obtain judgment in the action. Case law has interpreted Defendant's burden to show that there is no reasonable possibility the out‐of‐state plaintiff will prevail: “The purpose of section 1030 is to protect California residents who are sued by out‐of‐state plaintiffs when there is no reasonable possibility the out‐of‐state plaintiff will prevail.” (Yao v. Superior Court, (2002)104 Cal. App. 4th 327,331, 333.) Unlike...

Excerpt: ...or prior to or during the trial, unless the parties otherwise agree in the settlement or compromise. Following entry of judgment in related case No.18CV03613, mobile home owner filed requests for entry of dismissal of his complaints in case no's 18CV02825 & 18CV03386, therefore Defendant Park Owner is prevailing party and entitled to reasonable attorney's fees. As for what constitutes “reasonable” attorney's fees: "Reasonable" attorne...

Excerpt: ...re the Court noted that the content of section 15610.57, subdivision (b)… seems to contemplate the existence of a robust caretaking or custodial relationship—that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder's basic needs that an able‐bodied and fully competent adult would ordinarily be capable of managing without assistance. (Winn v. Pioneer Medica...

Excerpt: ...st supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. II. VIKAS GOEL'S MOTION TO SET ASIDE VOID JUDGMENT AND TO QUASH SERVICE A. The Motion is Timely Cal. Code Civ Proc § 473 Amendment of pleadings provides: (d) The court may, upon mo...

Excerpt: ...ted/Complex. (2) Plaintiffs assert the matter should be designated complex under CRC 3.400 due to the number of parties and the volume of discovery. Answering Defendants do not oppose the motion. Plaintiffs are judgment creditors who in this action is seeking to hold Defendant entities liable for Plaintiffs' two judgments on alter ego theories. California Rules of Court Rule 3.400 provides guidance and notes the following factors are to be consid...

Excerpt: ...y constituted unprejudiced Committee on Charges, and then strictly adhering to the procedures mandated by CAPM 002.015”. The gravamen of Petitioner's claim is that Kletzer's predecessor, CP/EVC Tromp, deviated from the protocol set forth in CAPM .002.151 by assigning the investigation of LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 9, 2019 TIME: 8:30 A.M. 3 complaints against Petitioner for sexual harassment to the University's Title IX office...

Excerpt: ...ith CCP § 435.5's meet and confer requirements. In addition, Principal has failed to establish that Bonner is in default as to discovery, etc. as to Principal. For example, the order Principal cites in support of its motion entered 9/11/18, was an order finding that Steven Bonner disobeyed orders pertaining to discovery propounded by Plaintiff, not Principal. (Ex. D to Dec. M. Brisbin) Therefore, the Court, having reviewed Principal's Motion to ...

Excerpt: ...djudication as to Plaintiff's second cause of action for fraud is DENIED. The operative complaint (Plaintiff's Fourth Amended Complaint) asserts a cause of action for medical negligence against Defendants Dignity Health (dba Dominica Hospital), Tobias Yeh, M.D., and John Christensen, M.D.; and a cause of action for the intentional tort of fraud in falsifying medical records against Defendant Dignity Health. Medical negligence cause of action‐�...

Excerpt: ...se to believe that information disclosed constituted a violation of law or regulation Plaintiff alleges that she reported to principal Oklin that it was not appropriate for her to teach a full 15 units of a 30‐unit Algebra course, because (1) she only had a substitute teaching credential and did not have the proper credential required to actively and directly teach an Algebra course; and (2) as a substitute teacher she could not legally teach 5...