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...