Excerpt: ...ks. (1975) 13 Cal.3d 710, 717) In Lyles v. State of California, (2007) 153 Cal. App. 4th 281, the Sixth District applied the 3 year statute of limitations to bar an inverse condemnation cause of action for damages to residential property allegedly caused by an inadequate drainage system surrounding public roads which allowed flooding of the property. Significant to the Court was the fact that “this case involves a one‐time known damage event�...

Excerpt: ...ed facts demonstrate that Ford's express warranty does not cover items needed to maintain the vehicle, such as “oils, lubricants, other fluids”; and that it does not cover “damage caused by using contaminated or improper fuel/fluids” [UMF 3]; that the truck was “perfect”, and did not have any problems in the first year [UMF 2]; that during the third repair visit on 10/16/16, after testing and diagnosis, a dealership technician working...

Excerpt: ... a non‐judicial foreclosure and trustee's sale of their property, because they did so under color of two recorded assignments of the Deed of Trust which are void: • A Corporate Assignment of Deed of Trust, executed on October 29, 1997 and recorded on May 17, 1999, by ICI Funding Corporation to Bankers Trust “as trustee under Indentiture relating to IMH Assets Corp., Collateralized AssetBacked‐Bonds, Series 1998‐3” [Assignment #2]; and...

Excerpt: ...of at least $25,000 as it requested in its Complaint. However, Plaintiff did prevail, on a practical level, by achieving its main litigation objective of stopping work in Defendant's unit until all necessary permits were obtained and ensuring that such work was carried out in compliance with the CC &R's. The Court concludes that had the litigation not been initiated, and the temporary restraining order obtained, Defendant would have continued wit...

Excerpt: ...ettlement is granted. A rough approximation of plaintiffs' total recovery is $5,000,000.00 As for settlor's proportionate liability, Settlor's percentage of liability is the touchstone question to be considered by the trial court in a contested good faith settlement hearing. (City of Grand Terrace v. Superior Court, (1987) 192 Cal. App. 3d 1251, 1262.) UCC had several viable defenses which would tend to limit its percentage of liabili...

Excerpt: ... on Maleksalehi's filing of the underlying complaint, which constitutes protected speech. Turner alleges that Malkesalehi “filed this action” after her divorce proceeding with Tabatabai was set for trial; and that he is “asserting the claim” to recover a loan from Enabledware in order to lower the value of Enabledware and help Tabatabai in the divorce proceedings. Her cause of action for Interference with Economic Advantage specifically a...

Excerpt: ...n for general negligence fails to state facts sufficient to constitute a cause of action against this defendant and the pleading is uncertain, ambiguous and unintelligible”. As these causes of action are for Conversion, Theft, Constructive Trust and Declaratory Relief, Defendant has failed to specify the grounds for demurring to these causes of action. The demurrer is therefore disregarded pursuant to CCP S430.60, and overruled. The motion to s...

Excerpt: ...er Tunnels/Pre‐Con v. Traylor Brothers, Inc./Obayashi Corp., (2003) 111 Cal. App. 4th 1328 where the court found the agreement to the Dispute Resolution Board unconscionable because only the owner and general had the right to select neutrals resulting in a DRB that was biased against the sub‐contractor, here the parties, i.e. the general and the subcontractor, each have the right to select one neutral with the third neutral being selected by ...

Excerpt: ... when the trial court conducts independent judgment review under section 1094.5. (Fukuda v. City of Angels,(1999) 20 Cal. 4th 805,819) Here, after his arrest ( after the initial PAS test), petitioner was formally advised of his post‐ arrest obligations under the implied consent law, with the officer reading him the verbatim admonishment from the official DMV DS 367 form which included the admonition that Petitioner was now required to submit to...

Excerpt: ... is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” Hauter v. Zogarts (1975) 14 Cal.3d 104,110 BFR principally contends that John Cunningham's act of killing himself so far outweighs any “passive” failures on the part of BFR that the court must conclude as a matter of law that the negligence of BFR was not a substantial factor in causing Cunningham's death. B...

Excerpt: ...d the proposed settlement of 17% of that amount totaling $231,750. Plaintiffs are requested to provide supplemental briefing and declarations addressing the following so that the Court may evaluate whether the proposed settlement is fair, reasonable, and adequate: 1. A factual assessment of the strength of the case, including a factual basis for counsel's wholly conclusory statement that the proposed settlement for 17% of the total maximum recove...

Excerpt: ...cts. ‐ identify all documents that support its denials or affirmative defenses and the name, address, and telephone number of anyone who has each document. The motion to compel further responses to form interrogatory 17.1 is granted. As to Plaintiff's requests RFA F7—F8 and F10‐F14 BONY is ordered to address these specific requests for admission in its response and: ‐state the name, address, and telephone number of anyone with knowledge o...

Excerpt: ...gle such issue, the motion must be denied…On a motion for summary adjudication , the test is whether there is any “triable issue of material fact as to the particular claim… “If a triable issue is raised as to any of the facts in the separate statement, the motion must be denied.” Matters going to the weight of the evidence must be disregarded in ruling on the motion. Thus, one witness's declaration may effectively controvert a dozen to...

Excerpt: ...t proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. (Id at p. 499) LAW AND MOTION TENTATIVE RULINGS DATE: July 1, 2019 ...

Excerpt: ...ptance of the dedication was not required to make the 1929 dedication effective. The case of Wright v. City of Morro Bay, (2006) 144 Cal. App. 4th 767 resolves this issue. That case involved the city of Morro Bay's acceptance of an offer of a dedication of a public street in 1935, 20 years prior to the enactment of the predecessor to CCP 771.010. There the court held, “It is an accepted rule of statutory construction that, absent a clear indica...

Excerpt: ...owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, a claim for damages, or an issue of duty. (o) A cause of action has no merit if either of the following exists: (1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded. (2) A defendant establishes an affirmative defense to that...

Excerpt: ...0 A.M. 2 The terms “discriminate” and “harass” appear in separate provisions and define distinct wrongs under FEHA. FEHA's discrimination provision addresses only explicit changes in the terms, conditions, or privileges of employment; that is, changes involving some official action taken by the employer (such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disc...

Excerpt: ... a cause of action for fiduciary duty, Plaintiff alleges Defendants owed a fiduciary duty to Plaintiff as his real estate agent and broker. (Complaint p. 10:8) Plaintiff also alleges Defendants breached their duty by saying Plaintiff had to be on title with Defendant and by working together to enter a lease agreement over Plaintiff's objection. (Complaint p. 10: ¶ 38) Plaintiff also alleges damage. (Prayer at pp. 14‐15). LAW AND MOTION TENTATI...

Excerpt: ...y has no legal right to relocate existing public utilities serving the Konzen property. (SAC ¶ 31) Plaintiffs have alleged an actual controversy, therefore they have stated sufficient facts to constitute a cause of action for declaratory relief. With respect to the argument that the SAC should be dismissed as a sham pleading due to the inconsistent allegations between the verified Answer in case no. 16CV00307 Konzen v City of Santa Cruz and the ...

Excerpt: ...quiring the continuance. Petitioner claims that an essential expert witness, Dr. Richard Alloy, is unavailable during the scheduled trial dates. However, there is an alternative means to procure and preserve his testimony in that Dr. Alloy is still available on multiple dates in May, June and July during which he could appear for a deposition which could be video recorded for use at trial. Secondarily, Petitioner asserts that his client, Jessica ...

Excerpt: ...enied. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, The Rutter Group 2018 ¶ 10:95.1; Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 252 (Cal. App. 1st Dist. 2009. The court has the inherent authority to strike proposed undisputed facts “that impede the ability of the court to determine whether the case presents triable issues of material facts”. Id., at 290. Defendant's Separate Statement includes numerous dispute...

Excerpt: ...thy trial would continue into the week of May 6 the objection as to his unavailability appears valid and to have been made in good faith. It is harassment for attorneys to schedule discovery knowing that an opponent may be unable to respond, and doing so may result in sanctions, Tenderloin Housing Clinic, Inc. v Sparks (1992) 8 Cal. App. 4th 299, 305. The fact that Plaintiff Gill Jr. has testified that he worked only part‐time during that week ...

Excerpt: ...arately established, even if that element is separately pleaded. (p) 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. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a tri...

Excerpt: ... remedy. Id., §9:522, 9:527. 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 that must be shown on the other. Id., at §9:531. The parties have given widely divergent declarations as to the events surrounding Steven Smith's work at the two properties owned by Mr. Valente, for whom Defendant French acted as real estate broker. The court is unable to ...

Excerpt: ...Midtec, Inc. (2008) 168 Cal. App. 4th 1194, 1209, on which Viking relies, is factually distinguishable. There a builder brought a claim against a manufacturer under the Right to Repair Act, which provides that only homeowners can be “claimants”. The court found that the builder was limited to a claim for indemnity because he did not qualify as a “claimant” under the Act. The crosscomplaint by Above & Beyond is not brought under the Right ...

Excerpt: ... Cal., (1986) 182 Cal. App. 3d 1079, 1083) Although here the Second Amended Criminal Complaint and the County's Civil Complaint both allege that Pastore violated Santa Cruz County Code Sections 16.20.210(a); 16.30.080(a);16.22.160(b); and 12.10.430(b), (see Complaint herein and Plaintiff's RJN Ex.'s F), the County's civil Complaint also alleges violations of Santa Cruz County Code Section 7.126.040. While the County states in a footnote that it d...

Excerpt: ...s and Work Comp Vols List 6‐06 to 5‐07.xls that have been produced during this litigation is granted. The scope of the deposition is to be limited as discussed below. The discovery statutes "must be construed liberally in favor of disclosure… the broad scope of the discovery right, permitting a deponent to be examined " 'regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action&...

Excerpt: ...edge regarding how and when the spill that led to her fall occurred, and on an inspection report and a declaration of a store employee regarding store conditions. In order to meet its burden of production in a summary judgment motion, a defendant must show that there is a complete defense or that one or more of the elements cannot be established. Chevron U.S.A, Inc.vs. Superior Court (1992) 4 Cal. App.544,548. The defendant must show that under n...

Excerpt: ...acity of a board member… The SAC contains no negligence claims against Doane. The allegations against Doane are contained in the Fourth Cause of action, as alleged an intentional tort, and the Fifth cause of action for Fraud, (as alleged, an intentional tort). Because the SAC contains only intentional tort allegations, not negligence allegations, the demurrer on this ground is overruled. (see also Weil & Brown Civil Procedure Before Trial (TRG ...

Excerpt: ... Cal., (1986) 182 Cal. App. 3d 1079, 1083) Although here the Second Amended Criminal Complaint and the County's Civil Complaint both allege that Pastore violated Santa Cruz County Code Sections 16.20.210(a); 16.30.080(a);16.22.160(b); and 12.10.430(b), (see Complaint herein and Plaintiff's RJN Ex.'s F), the County's civil Complaint also alleges violations of Santa Cruz County Code Section 7.126.040. While the County states in a footnote that it d...

Excerpt: ...he application for a preliminary injunction. Mr. Frey's May 3 letter requesting the continuance states only that “The defendants need time. to determine whether Ryan Rodriguez is guarantor on certain of the company vehicles as well as other business details”. Plaintiffs' application seeks a turn over order as to only one vehicle: a Ford truck. The hearing on this matter was originally set for May 10, has already been continued for six days, a...

Excerpt: ... the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. The motion must be accompanied by an affidavit (declaration) from the moving party stating: ‐what ap...

Excerpt: ...shown that there is an “affiliation between the forum and the underlying controversy, principally, an activity (engaged in by defendant) or an occurrence (caused by that activity) that takes place in the forum State”. “When there is no such connection jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State…There must be a connection between the forum and the specific claims at issue”. Id. at...

Excerpt: ...cuments; for when Defendant disclosed the identity of Cixi as the allegedly true manufacturer; or for what offers Defendant has made to remedy the late disclosure of Cixi as the allegedly true manufacturer. In addition, Defendant's opposition is devoid of any verified evidentiary support. Neither side has followed proper procedure for litigating this issue. The motion is therefore denied without prejudice. The court is also willing to entertain a...

Excerpt: ...uested, Cal Rules of Court, Rule 7.955 Attorney's fees for services to a minor provides: (a) Reasonable attorney's fees “(1) In all cases under Code of Civil Procedure section 372 unless the court has approved the fee agreement in advance, the court must use a reasonable fee standard when approving and allowing the amount of attorney's fees payable from money or property paid or to be paid for the benefit of a minor”. Santa Cruz C...

Excerpt: ...�judicial relief” or a recovery other than money. The condition was imposed only to confirm and clarify the representations made by Mr. Haag that he that he forever waived any rights to assign or license use of the property for skydiving purposes. Although Petitioners obtained their litigation objective, this was not the result of any actions or change in position by the County. As to the real Parties in Interest the evidence before the court d...

Excerpt: ...Issues 1‐4, 6, 9‐15, and 18 CRC 3.1350(d)((2) provides: “The separate statement should include only material facts and not any facts that are not pertinent to the .disposition of the motion”. Defendants' Separate Statement therefore concedes the materiality of each of the facts included therein. If triable issues are raised as to any one of these issues the motion must be denied. Weil & Brown, Cal. Practice Guide: Civil Procedure Before T...

Excerpt: ...ntiff has failed to obey the court order and the motion for sanctions will be granted as set forth below. B. Form Interrogatories Plaintiff has also failed to obey the court order to produce further responses to Lyng's Form Interrogatories, Set One. Therefore the motion for sanctions will be granted as set forth below. C. Request for Production Plaintiff has failed to obey the court order to produce complete responses to Lyng's Request for Produc...

Excerpt: ...ompel pursuant to Cal Code Civ Proc § 2025.480(b) applies, not the 20 days set forth in CCP § 1985.3(g). Calcagno purports to have mailed written objections on 12/21/18 electronically and by US mail. (No proof of service by mail pursuant to CCP § 1013a or proof of electronic service compliant with CCP§ 1013b has been filed.) Sixty days from 12/21/18 is 2/19/19. Adding two court days for electronic service pursuant to CCP § 1010.6(a)(3) is 2/...

Excerpt: ...to serve discovery until Jan. 17, 2019. Moreover, although Plaintiff's discovery responses were apparently due Feb. 16, 2019 and Defendant has not yet received them, it does not appear from the court file or the pleadings that Defendant has filed a motion to compel those responses. In addition, there is an alternative means to address the problem that gave rise to the motion for a continuance in that Defendant can file an ex parte application to ...

Excerpt: ...App. 4th 1187,1196) As to whether attorney's fees should not be awarded because neither side argued that the written contract was entered or agreed to, whether a party is entitled to attorney's fees for the purpose of invoking Civil Code section 1717 depends not on the evidence adduced at trial or some interim proceeding, but on the pleadings"(Manier v. Anaheim Bus. Ctr. Co., (1984) 161 Cal. App. 3d 503, 508). Here Plaintiffs allege in the SA...

Excerpt: ... or that Kramer's claim for sick pay and penalties is preempted by the Labor Management Relations Act (LMRA). I. ANALYSIS The court is to conduct a de novo trial of an appeal from a decision of the Labor Commissioner on an employee complaint regarding wage and hour violations, pursuant to Labor Code §98.2. However, on a motion for summary judgment Appellant bears the burden of persuasion that there is no triable issue of fact and that Appellant ...

Excerpt: ...g based on its interpretation of the Purchase Agreement under English law. The court assumes that the U.K. court will determine the financial obligations at issue between Carl and Fisken arising under the Purchase Agreement. Thereafter, this Court will determine Canepa's obligations concerning time, manner and place of LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 28, 2019 TIME: 8:30 A.M. delivery of the gear box and any other issues not resolved ...

Excerpt: ...n Castro v. Superior Court, (2004) 116 Cal. App. 4th 1010, 1022‐1023. Although the complaint here contains a cause of action for declaratory relief which would, if meritorious, affect the use of an easement identified in the pleading and therefore constitutes a “real property claim”, Plaintiff did not establish by a preponderance of the evidence the probable validity of her claim. Therefore, had the lis pendens not been withdrawn, the Court...

Excerpt: ...r and/or file its own cross‐complaint. The Cross‐Complaint filed by Alfredo Trinidad and the Landis Law Firm is therefore not yet at issue. Additionally, Cross‐Complainants have not provided authority for determining the competing claims of the parties on a regular motion as opposed to a motion for summary judgment ...

Excerpt: ... (2016) 63 Cal. 4th 148, 155 as “where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able bodied and fully competent adult would ordinarily be capable of managing without assistance”. A landlord‐tenant relationship is not a caretaking or custodial relationship under this definition. Plaintiff has also failed to allege an Elder Abuse cause of action b...

Excerpt: ...a consideration as is the policy of trying cases upon their merits.” (3 Witkin CA Procedure (5th Ed. 2008) Actions § 433.) Although Plaintiff argues that the Court previously determined that Defendant waived or forfeited the limitations defense in its ruling on the summary judgment motion. (Opposition p. 3:10), as Defendant correctly points out, the Court's Order denying the MSJ states, “IT IS ORDERED that the motion for summary judgment is ...

Excerpt: ...clude facts or expert opinion and therefore did not raise a significant environmental effect; that the EIR was not legally required to analyze the Project's consistency with the SSCCP; that with augmentation of the Administrative Record and the lodging of a certified addendum to the Administrative Record, the Administrative Record is sufficiently LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 8, 2019 TIME: 8:30 A.M. complete; and that Petitioner's ...

Excerpt: ...ormed and believes that in or around November or December 2016, the servicing of his mortgage loan transferred to Defendant Bayview. However, Plaintiff was not notified of the servicing transfer by either SPS or Bayview prior to the date that the servicing of his loan transferred to Bayview.” (Complaint ¶ 08) However SPS provides a copy of a letter dated 11/14/16 indicating servicing of the Loan was being transferred to Bayview. (Defendant's C...

Excerpt: ...��972) the lease provision here that provides for mandatory arbitration is unenforceable as it is both procedurally and substantively unconscionable. (see Penilla v. Westmont Corp., (2016) 3 Cal. App. 5th 205, 212‐218) The arbitration provision is procedurally unconscionable in that: ‐It did not detail the amount of arbitration fees. Nor were fee schedules for JAMS arbitrators attached. (see Ex. A to ELP Petition to compel filed 11/26/18) ‐...