Excerpt: ... have been futile. Therefore, the failure to comply with §800 does not appear on the face of the complaint. Demurrers for uncertainty are disfavored. A demurrer for uncertainty will only be sustained where the complaint is so bad that the defendant cannot reasonably respond. Weil and Brown, California Procedure Before Trial, TRG, §7:85. Atkins has not demonstrated that the allegations as to him are so uncertain that he cannot reasonably respond...

Excerpt: .... Sanctions in the amount of $2100 are awarded to CFSC against counsel for Encompass Community Services, Colin Pearce, pursuant to 2023.010(g) and 2023.030(a). Encompass is further ordered to provide a verified supplemental response which is fully compliant with this court's orders of October 1, 2019 by January 13, 2019. The court sets a hearing on January 16, 2010 to confirm full compliance, or, in the event of a failure to fully comply, to set ...

Excerpt: ...ial (TRG), §§6:653, 6:639. A denial of leave to amend is appropriate where the pleading is defective as a matter of law, and the defect cannot be cured by further amendment. Id., at §6:646. However, unless the defect is fatal, the court should not consider the merits of the proposed pleading in deciding whether to grant leave to amend. Id., at §6:644. The new allegations in the proposed SAC as to indemnity, tax consequences as damages, and in...

Excerpt: ...in Los Angeles county, where they reside and their law office is located. They rely on §395(a), the general venue statute, which provides in part: “Except as otherwise provided by law and subject to the power of the court to transfer…the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of that action”. Defendants are correct in asserting that another provision of this ge...

Excerpt: ...ngth and is not collusive; • An estimate of what each class member will receive in the settlement; • Plaintiff should also provide further information which allows “an understanding of the amount that is in controversy and the realistic range of outcomes of the litigation… The salient point is whether the factual record before the court is sufficiently developed to allow the LAW AND MOTION TENTATIVE RULINGS DATE: DECEMBER 16, 2019 TIME: 8...

Excerpt: ...3.5(c)(2) Regarding Item 11 Models, illustrations, Plaintiff is to provide a further declaration related to the $21,695.00 requested to allow the Court to evaluate the reasonableness and LAW AND MOTION TENTATIVE RULINGS DATE:DECEMBER 12, 2019 TIME: 8:30 A.M. 2 necessity of the illustrations by providing an itemization, date, and explanation for each illustration for which the cost is being requested. II. PLAINTIFF'S MOTION FOR ATTORNEY'S FEES The...

Excerpt: ...r” theory does not support the claim, as it does not apply where several joint defendants jointly commit a tort. Electrical Electronics Controls Inc v Los Angeles unified School District (2005) 126 Cal. App. 4th 601, 617. As to the claim for punitive damage: The SACC does not allege the malicious, oppressive or fraudulent conduct necessary for a punitive damage claim. The conclusory allegation that “in suppressing and concealing the true fact...

Excerpt: ...��1969 statutes required strict and exact compliance with the statutory requirements the provisions of the new law, according to its draftsmen, 'are to be liberally construed. "The provisions of this chapter should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant.” (Espindola v. Nunez, (1988) 199 Cal. App. 3d 1389, 1391) There is no evidence here that Defen...

Excerpt: ...s uncertain are presumptively within the defendant's knowledge. (Chen v. Berenjian, (2019) 33 Cal. App. 5th 811, 822) LAW AND MOTION TENTATIVE RULINGS DATE: November 22, 2019 TIME: 8:30 A.M. 2 Because the date of conversion of the Property is presumptively within Defendant's knowledge, the demurrer is overruled on this basis. In addition, Plaintiffs have alleged sufficient facts to allege a duty on the part of Defendants to disclose that the conv...

Excerpt: ...(2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Armstrong Petroleum Corp. v. Tri‐Valley Oil & Gas Co., (2004) 116 Cal. App. 4th 1375, 1391 note 6) Here, Allied alleges: 1) Oceanside executed a “Request to Bind” in which it requested that Applied Underwriters, through its affiliates or subsidiaries, cause workers' compensation policies to be issued to Oceanside...

Excerpt: ...ND MOTION TENTATIVE RULINGS DATE: November 21, 2019 TIME: 8:30 A.M. 3 The general demurrer is sustained without leave to amend as to the 1st, 2d, 4th and 8th causes of action; and with leave to amend as to the 3rd, 5 th and 7th causes of action as follows: The 1 st, and 2d causes of action (Terrorist Death Threat, Scheme and Swindle) are not cognizable, legally recognized, causes of action. Additionally, the 2d cause of action relates to a prior ...

Excerpt: ...xcept as to privilege and in a form complying with the Code of Civil Procedure, to form interrogatories, set one, Nos. 9.1 and 9.2, special interrogatories, set one, Nos. 1, 2, 3, 5, 6, 8, 9, 11, 12, 14, 17, 20 through 24, 26, 27, 29, 30, 32, 33, 35, 36, and 39, and request for production of documents, set one, Nos. 1 through 16, as explained herein. Plaintiff Cortland T. Day shall serve such further responses on or before December 2, 2019. Concu...

Excerpt: ...titled to be compensated for "all hours reasonably spent on the matter." (Serrano v. Priest (1982) 32 Cal.3d 621, 624.) The number of hours reasonably worked is determined by reviewing the time reasonably spent on a matter, 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.) An attorney's declaration that the work pe...

Excerpt: ...dinance by Failing to Follow the Procedures, and Make the Findings Required, by SCMC §§ 24.08.810 and 24.08.820 Before Issuing the PDP? The interpretation of Title 24 of the Zoning Ordinance, contained in the Santa Cruz Municipal Code, and specifically Parts 8 and 9 of Chapter 24.08 and Part 1 of Chapter 24.14, presents an issue of law which is subject to independent review. MHC Operating Ltd Partnership v City of San Jose (2004) 106 Cal. App. ...

Excerpt: ...laint is uncertain are presumptively within the defendant's knowledge. (Chen v. Berenjian, (2019) 33 Cal. App. 5th 811, 822) Because the date of conversion of the Property is presumptively within Defendant's knowledge, the demurrer is overruled on this basis. In addition, Plaintiffs have alleged sufficient facts to allege a duty on the part of Defendants to disclose that the conversion was not permitted. Therefore the demurrer to the Eleventh cau...

Excerpt: ...the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence. (p) For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on ...

Excerpt: ...nnot be compelled to arbitrate the dispute under an agency theory. (A preexisting relationship between the nonsignatory and one of the parties to the arbitration agreement is a common factor in compelling the nonsignatory to arbitrate. County of Contra Costa v. Kaiser Foundation Health Plan, Inc., (1996) 47 Cal. App. 4th 237, 242) As to finding that Allied is the alter ego of Oreb/Radensky, before the alter ego doctrine will be invoked in Califor...

Excerpt: ...t the CA Building Code applies, the UPP report was prepared in support of Petitioner's permit application to correct unpermitted grading activities. The project description for Development Permit Application REV151055 says “Proposal for restorative grading”. (AR 13) Moreover, the scope of the UPP report does not include any references to any “buildings or structure or appurtenances connected or attached to such buildings or structures as re...

Excerpt: ...he following rulings: 1.The objections are overruled. Defendant is ordered to provide a further verified response producing the requested documents. 2. The objections are overruled. Defendant is ordered to provide a further verified response producing the requested documents. 3. The objections are overruled except for the objection that it improperly seeks premature disclosure of expert opinion. Defendant is ordered to provide a further verified ...

Excerpt: ...te where the pleading is defective as a matter of law, and the defect cannot be cured by further amendment. Id., at §6:646. However, unless the defect is fatal, the court should not consider the merits of the proposed pleading in deciding whether to grant leave to amend. Id., at §6:644. ...

Excerpt: ...hat burden, 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 or 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. “Th...

Excerpt: ...yment actions done in furtherance of a supervisor's managerial role can also have a secondary effect of communicating a hostile message. This occurs when the actions establish a widespread pattern of bias.” The Miller court therefore concluded that “official employment actions constituted the evidentiary basis of the harassment cause of action, because the supervisor used those official actions as his means of conveying his offensive message�...

Excerpt: ...de a rough approximation of the plaintiff's total recovery. Additionally, the City has failed to present evidentiary support for its claim that it has no liability because it does not own or control the area on Bean Creek Road where the slide occurred. While the City refers to the declaration of Taylor Bateman as support for this claim, this declaration has not been filed. ...

Excerpt: ...has met its threshold burden of proof that Cross‐Complainants cannot establish their claims that the grab bar was defectively designed or negligently manufactured; or that any alleged defect in the grab bar was a substantial factor in causing Plaintiff to fall. Wingit has done so through the factually devoid discovery responses of these Cross‐Claimants, and by the following evidence : (1) the declaration of Sal Siston, president of Wingit, wh...

Excerpt: ...E The motion by to allow Bella Vista Italian Kitchen and Bar, LLC to intervene is denied. CCP §387 (c) requires a motion to intervene to include the proposed complaint in intervention. There is no complaint in intervention included in the motion. ...

Excerpt: ...pation in the litigation is inconsistent with an intent to arbitrate. A waiver of the right to arbitrate may be implied from this conduct. Lewis v Fletcher Jones (2012) 205 Cal. App. 4th 436, 445‐446. ...

Excerpt: ...sonable costs of a title report, with legal interest at the legal rate from time of payment, or, if before the commencement of the action, from the time the action was commenced; • Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit. CCP §874.020 provides: The costs of partition include reasonable expenses, including attorney's fees, necessarily incurred by a party for the common benefit...

Excerpt: ...��; and “all reference to allegations concerning the POBRA”. (Notice of Motion, 2:3‐7). The County asserts that a February 14, 2019 letter from Thornton Kontz, as attorney for the Commission, is “the sole basis” for Petitioner's second cause of action for traditional mandamus and his claim of POBBRA violations. It asserts that this letter constitutes protected activity, because it is a communication made in connection with an official p...

Excerpt: ...ey's MPA as to Portola 5:15‐16, 13:18‐21). Summary adjudication must completely dispose of the cause of action to which it is directed. CCP §437c(f)(1). The prayer on the Fourth Cause of Action for Breach of Written Contract to Defend seeks compensatory damages and attorneys' fees, expert costs, and other litigation costs. The prayer on the Eleventh Cause of Action for Declaratory Relief for Duty to Defend seeks a judicial declaration as to ...

Excerpt: ... records pertaining to matters encompassed by this Agreement with the right to make copies of any or all thereof”. The court further finds that Plaintiff has demonstrated resulting prejudice if injunctive relief is not granted, as it will be unable to meet its reporting obligations and prepare its audit and tax returns. Defendant is ordered to provide the tenant files and financial records it maintained for CFSC within 20 days from this order. ...

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: ...ts to litigate its bad faith claims against NASIC. Plaintiff does not dispute that the 10/9/13 General Indemnity Agreement between Plaintiff and NASIC controls their rights and obligations. Nor does it appear that Plaintiff disputes that it was in breach of its obligations owing to NASIC when it failed to pay subcontractors and failed to respond to NASIC's collateral demand of 3/11/16. Accordingly, pursuant to the Assignment clause of the Indemni...

Excerpt: ...its”. Lantzy v Centex Homes (2003) 31 Cal. 4th 363, 369. Plaintiff is therefore unable to rely on the “discovery rule” to extend the 10‐year limitations period., which expired, at the latest, by January 2014. While equitable estoppel may extend the 10‐year limitations period under Lantzy, Plaintiff has pled no facts indicating that defendants' conduct directly prevented her from filing suit. Plaintiff's allegations fall short of those a...

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: ...nt ¶¶ 37,60,63) “Nonintentional torts may also form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of others. ( Taylor v. Superior Court, supra, 24 Cal.3d 890; G. D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d 22 [122 Cal. Rptr. 218].) Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionall...

Excerpt: ...ts have met their burden of overcoming the presumption of reasonableness of enforcing the 1954 CC&R's today. (Nahrstedt v. Lakeside Village Condominium Assn., (1994) 8 Cal. 4th 361, 380‐381): 1. Increasing housing for low to moderate residents is a public policy: (see Alfaro v. Community Housing Improvement System & Planning Assn., Inc., (2009) 171 Cal. LAW AND MOTION TENTATIVE RULINGS DATE: FEBRUARY 27 , 2019 TIME: 8:30 A.M. App. 4th 1356,...

Excerpt: ....A to Konzen Reply, Dervishian's First Amended Answer to FAC in case no. 16CV00307 p. 2:6‐13.) This allegation is inconsistent with the allegation in the FAC that “Plaintiffs are informed and believe, and thereon allege, that the City has no easement for public utilities situated with[in] the boundaries of Doane Street or Stable Street” (FAC ¶ 9), “The general rule, is that material factual allegations in a verified pleading that are omi...

Excerpt: ...bts (TRG 2018) §6:1564.) Here the judgment is against Defendant Marcia McClosky, an individual. (see Ex. A to Motion.) In addition, out of due process concerns, a default judgment, such as the one obtained here, is not subject to such an amendment (based on an alter ego theory). (Motores de Mexicali, S. A. v. Superior Court of Los Angeles County, (1958) 51 Cal. 2d 172,178) The motion to amend the judgment is denied without prejudice. ...

Excerpt: ...owledge and Evid. Code Sec. 1150: Sustained. Declaration of Roxanne Thompson 6. Paragraph 5 on the grounds speculative and no personal knowledge: Sustained. 7. Paragraph 6 on the grounds of hearsay, irrelevant, lack of foundation and Evid code Sect. 1150: Sustained. 8. Paragraph 7 on the grounds Evidence Code § 1150, and irrelevant: Sustained. 9. Paragraph 8 on the grounds of hearsay, Evidence Code § 1150, and irrelevant: Sustained. LAW AND MOT...

Excerpt: ... alleged the necessary element of a lack of consent to Defendants' release of hazardous substances in the course of Defendants' operation of their dry‐cleaning businesses. While the judicially noticeable documents demonstrate that Plaintiff's parents consented to Defendants' use of the leased premises for the purpose of operating a dry‐cleaning business, the issue of whether this necessarily constitutes consent to the release of hazardous sub...

Excerpt: ...back to plaintiff to establish the employer's articulated reason was a “pretext” or cover‐up for unlawful discrimination. (CA Practice Guide (TRG 2018) Employment Litigation § 7:390) To establish a prima facie case of unlawful discrimination Plaintiff must show: ‐Plaintiff was a member of a protected class; ‐Plaintiff was qualified for the position sought or was competently performing in the position held, satisfying the employer's exp...

Excerpt: ...xcusable neglect.” (CA CCP§ 473.5 (c)) Here, during the time period in which Defendant failed to comply with his mandatory statutory duty to inform the the California State Bar of his address, Defendant either through intentional avoidance or inexcusable neglect, evaded Plaintiff's reasonable, diligent attempts at service on him of the summons and complaint. This occurred after Defendant had been expressly warned that Plaintiff intended to sue...

Excerpt: ...n Plaintiff's cross‐complaint and summary adjudication of Defendants' affirmative defenses is granted. The motion for summary judgment on Defendants' cross‐complaint is denied, without prejudice, as the motion was filed prior to the filing of the First Amended Cross‐Complaint and the currently operative Second Amended Cross‐Complaint, which supersedes the prior Cross‐ Complaints. Plaintiff has met its threshold burden of proof by establ...

Excerpt: ...is not a bar to bringing a new action within the period of the statute of limitations. (Lewis v. Johnson, (1939) 12 Cal. 2d 558,563) “The pendency of another earlier action growing out of the same transaction and between the same parties is a ground for abatement of the second action…where the court determines there is another action pending raising substantially the same issues between the same parties, it is to enter the interlocutory judgm...

Excerpt: ...stablished, or that there is a complete defense to the cause of action. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof…If there is a single such issue, the motion must be denied…On a motion for summary adjudication , the test is whether there is any “triable...

Excerpt: ...bstantive law. (Lawrence v. Bank of Am.(1985), 163 Cal. App. 3d 431, 436) MOTION TO STRIKE PORTIONS OF FAC Plaintiff has not alleged conduct which is despicable, i.e. so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Tomaselli v. Transamerica Ins. Co., (1994) 25 Cal. App. 4th 1269, 1286‐1287) Nor has she provided support for the notion that the probable (as o...

Excerpt: ...do not demonstrate that the corporate contract is unenforceable based on the statute of frauds, because (1) the contract was not impossible to be performed within one year, as a sale of Enabledware and the repayment of the loan from the sale proceeds could have happened at any time: (2) the FAC alleges that the contract was documented in writing; and (3) the FAC does not demonstrate that Plaintiff was in the business of lending, and instead only ...

Excerpt: ...ocedure Before Trial, Weil & Brown, 2018, 10:270‐271. Pg. 10‐130‐ 131.) The evidence here would allow a reasonable trier of fact to find that SARL IROC, through its agent Lecourt, entered the contract and therefore has standing. (see Exhibits B and Exh. C to Plaintiff's separate statement, Sale and Purchase Agreement dated 1/19/16 and emails dated Jan. 12 & 13, 2016 between Jordan and Lecourt.) As to whether Plaintiff has standing to bring ...

Excerpt: ...vironmental review pursuant to CEQA. Petitioner challenges RTC's decision to enter into an ACL rather than apply to the Surface Transportation Board for approval of the abandonment of the line, RTC's choice of St. Paul as an operator, and two particular elements of the ACL: (1) St. Paul's freight operations on the Branch Line; and (2) RTC's commitment to make FEMA funded repairs to the storm damaged Line necessary for St. Paul to operate the perm...

Excerpt: ...ant's RJN Exh. 17 pg.262:27 & 263:4‐5 and Exhibit 18 pg. 266 ¶ C) (Branson v. SunDiamond Growers, (1994) 24 Cal. App. 4th 327, 340; Ghalehtak v. Fay Servicing, LLC, (2018) 304 F. Supp. 3d 877, 885; Dunkin v. Boskey, (2000) 82 Cal. App. 4th 171, 181.) In addition, pursuant to the Settlement and Release Agreement signed on 7/20/15 by the Court on behalf of Plaintiffs, Plaintiffs released all claims against Deutsche Bank and Ocwen. (Defendants' R...