Excerpt: ...attorney‐client relationship with the attorney, and the fees are actually incurred. Witte v Kaufman (2006) 141 Cal. App. 4th 1201; Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1324– 1325. Defendants have presented no evidence that Mr. Laydon was “in fact” retained and stood in an attorney‐client relationship with Defendants, or that the claimed fees were actually incurred (e.g. engagement agreement, amount billed, amou...

Excerpt: ...e the civil claims. Moreover, bifurcation is not necessary here to promote judicial economy, convenience of witnesses, and the interests of justice. Contrary to Encompass' claim that an early hearing on the Probate Petition can be conducted in a few hours, without the need for live witnesses or testimony, (Encompass P's & A's p. 15:4) the court in Estate of Bennett, (2008) 163 Cal. App. 4th 1303 held that in a contested hearing, it was error to f...

Excerpt: ...0:95.1, citing Nazir v United Airlines, Inc. (Cal. App. 1st Dist. 2009) 178 Cal. App. 4th 243, 252. Defendant has included UMFs No. 7 and 8 in its Separate Statement under Issue No 1 (the County is entitled to summary judgment because it is absolutely immune from liability pursuant to Govt. Code §831.2); under Issue No. 2 (the County is entitled to judgment on Plaintiffs' first cause of action because there was no notice of a dangerous condition...

Excerpt: ...�1033.5 (c)(1), (3). No declaration or other evidence has been presented demonstrating that fees have been incurred; and in the absence of any evidence as to how the fees were calculated there no way for the court to determine if the claimed fees are reasonable. The court may only award costs that are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”. CCP §1033.5(c) (2). In...

Excerpt: ...Quelimane Co. v. Stewart Title Guaranty Co.,(1998) 19 Cal. 4th 26, 38) Moreover, a demurrer is simply not the appropriate procedure for determining the truth of disputed facts.' The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.”(Fremont Indemnity Co. v. Fremont General Corp., (2007) 148...

Excerpt: ...nd partially oral”, and that the written agreement sets forth the terms of the agreement. He therefore meets the pleading standard for alleging a contract. Plaintiff alleges that the oral agreement was memorialized by the written agreement attached the FAC as Exhibit A. He further alleges on information and belief that it was signed by Defendants (i.e. signed by the party to be charged). A statute of frauds defense therefore does not appear on ...

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