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: ...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: ...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: ...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: ...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...