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: ...ettlement is granted. A rough approximation of plaintiffs' total recovery is $5,000,000.00 As for settlor's proportionate liability, Settlor's percentage of liability is the touchstone question to be considered by the trial court in a contested good faith settlement hearing. (City of Grand Terrace v. Superior Court, (1987) 192 Cal. App. 3d 1251, 1262.) UCC had several viable defenses which would tend to limit its percentage of liabili...

Excerpt: ... on Maleksalehi's filing of the underlying complaint, which constitutes protected speech. Turner alleges that Malkesalehi “filed this action” after her divorce proceeding with Tabatabai was set for trial; and that he is “asserting the claim” to recover a loan from Enabledware in order to lower the value of Enabledware and help Tabatabai in the divorce proceedings. Her cause of action for Interference with Economic Advantage specifically a...

Excerpt: ...n for general negligence fails to state facts sufficient to constitute a cause of action against this defendant and the pleading is uncertain, ambiguous and unintelligible”. As these causes of action are for Conversion, Theft, Constructive Trust and Declaratory Relief, Defendant has failed to specify the grounds for demurring to these causes of action. The demurrer is therefore disregarded pursuant to CCP S430.60, and overruled. The motion to s...

Excerpt: ...er Tunnels/Pre‐Con v. Traylor Brothers, Inc./Obayashi Corp., (2003) 111 Cal. App. 4th 1328 where the court found the agreement to the Dispute Resolution Board unconscionable because only the owner and general had the right to select neutrals resulting in a DRB that was biased against the sub‐contractor, here the parties, i.e. the general and the subcontractor, each have the right to select one neutral with the third neutral being selected by ...

Excerpt: ... when the trial court conducts independent judgment review under section 1094.5. (Fukuda v. City of Angels,(1999) 20 Cal. 4th 805,819) Here, after his arrest ( after the initial PAS test), petitioner was formally advised of his post‐ arrest obligations under the implied consent law, with the officer reading him the verbatim admonishment from the official DMV DS 367 form which included the admonition that Petitioner was now required to submit to...

Excerpt: ... is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” Hauter v. Zogarts (1975) 14 Cal.3d 104,110 BFR principally contends that John Cunningham's act of killing himself so far outweighs any “passive” failures on the part of BFR that the court must conclude as a matter of law that the negligence of BFR was not a substantial factor in causing Cunningham's death. B...

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...

Excerpt: ...gle such issue, the motion must be denied…On a motion for summary adjudication , the test is whether there is any “triable issue of material fact as to the particular claim… “If a triable issue is raised as to any of the facts in the separate statement, the motion must be denied.” Matters going to the weight of the evidence must be disregarded in ruling on the motion. Thus, one witness's declaration may effectively controvert a dozen to...

Excerpt: ...t proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. (Id at p. 499) LAW AND MOTION TENTATIVE RULINGS DATE: July 1, 2019 ...

Excerpt: ...ptance of the dedication was not required to make the 1929 dedication effective. The case of Wright v. City of Morro Bay, (2006) 144 Cal. App. 4th 767 resolves this issue. That case involved the city of Morro Bay's acceptance of an offer of a dedication of a public street in 1935, 20 years prior to the enactment of the predecessor to CCP 771.010. There the court held, “It is an accepted rule of statutory construction that, absent a clear indica...

Excerpt: ...owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, a claim for damages, or an issue of duty. (o) A cause of action has no merit if either of the following exists: (1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded. (2) A defendant establishes an affirmative defense to that...

Excerpt: ...0 A.M. 2 The terms “discriminate” and “harass” appear in separate provisions and define distinct wrongs under FEHA. FEHA's discrimination provision addresses only explicit changes in the terms, conditions, or privileges of employment; that is, changes involving some official action taken by the employer (such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disc...

Excerpt: ... a cause of action for fiduciary duty, Plaintiff alleges Defendants owed a fiduciary duty to Plaintiff as his real estate agent and broker. (Complaint p. 10:8) Plaintiff also alleges Defendants breached their duty by saying Plaintiff had to be on title with Defendant and by working together to enter a lease agreement over Plaintiff's objection. (Complaint p. 10: ¶ 38) Plaintiff also alleges damage. (Prayer at pp. 14‐15). LAW AND MOTION TENTATI...

Excerpt: ...y has no legal right to relocate existing public utilities serving the Konzen property. (SAC ¶ 31) Plaintiffs have alleged an actual controversy, therefore they have stated sufficient facts to constitute a cause of action for declaratory relief. With respect to the argument that the SAC should be dismissed as a sham pleading due to the inconsistent allegations between the verified Answer in case no. 16CV00307 Konzen v City of Santa Cruz and the ...

Excerpt: ...quiring the continuance. Petitioner claims that an essential expert witness, Dr. Richard Alloy, is unavailable during the scheduled trial dates. However, there is an alternative means to procure and preserve his testimony in that Dr. Alloy is still available on multiple dates in May, June and July during which he could appear for a deposition which could be video recorded for use at trial. Secondarily, Petitioner asserts that his client, Jessica ...

Excerpt: ...enied. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, The Rutter Group 2018 ¶ 10:95.1; Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 252 (Cal. App. 1st Dist. 2009. The court has the inherent authority to strike proposed undisputed facts “that impede the ability of the court to determine whether the case presents triable issues of material facts”. Id., at 290. Defendant's Separate Statement includes numerous dispute...

Excerpt: ...thy trial would continue into the week of May 6 the objection as to his unavailability appears valid and to have been made in good faith. It is harassment for attorneys to schedule discovery knowing that an opponent may be unable to respond, and doing so may result in sanctions, Tenderloin Housing Clinic, Inc. v Sparks (1992) 8 Cal. App. 4th 299, 305. The fact that Plaintiff Gill Jr. has testified that he worked only part‐time during that week ...

Excerpt: ...arately established, even if that element is separately pleaded. (p) For purposes of motions for summary judgment and summary adjudication: (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. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a tri...

Excerpt: ... remedy. Id., §9:522, 9:527. In ruling on the motion, the court is to evaluate the potential–merits and interim‐harm factors, and the greater the showing on one, the less that must be shown on the other. Id., at §9:531. The parties have given widely divergent declarations as to the events surrounding Steven Smith's work at the two properties owned by Mr. Valente, for whom Defendant French acted as real estate broker. The court is unable to ...

Excerpt: ...Midtec, Inc. (2008) 168 Cal. App. 4th 1194, 1209, on which Viking relies, is factually distinguishable. There a builder brought a claim against a manufacturer under the Right to Repair Act, which provides that only homeowners can be “claimants”. The court found that the builder was limited to a claim for indemnity because he did not qualify as a “claimant” under the Act. The crosscomplaint by Above & Beyond is not brought under the Right ...

Excerpt: ... Cal., (1986) 182 Cal. App. 3d 1079, 1083) Although here the Second Amended Criminal Complaint and the County's Civil Complaint both allege that Pastore violated Santa Cruz County Code Sections 16.20.210(a); 16.30.080(a);16.22.160(b); and 12.10.430(b), (see Complaint herein and Plaintiff's RJN Ex.'s F), the County's civil Complaint also alleges violations of Santa Cruz County Code Section 7.126.040. While the County states in a footnote that it d...

Excerpt: ...shown that there is an “affiliation between the forum and the underlying controversy, principally, an activity (engaged in by defendant) or an occurrence (caused by that activity) that takes place in the forum State”. “When there is no such connection jurisdiction is lacking regardless of the extent of a defendant's unconnected activities in the State…There must be a connection between the forum and the specific claims at issue”. Id. at...

Excerpt: ...cuments; for when Defendant disclosed the identity of Cixi as the allegedly true manufacturer; or for what offers Defendant has made to remedy the late disclosure of Cixi as the allegedly true manufacturer. In addition, Defendant's opposition is devoid of any verified evidentiary support. Neither side has followed proper procedure for litigating this issue. The motion is therefore denied without prejudice. The court is also willing to entertain a...