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

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: ...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: ...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...