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: ...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: ...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: ...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: ... 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: ...s and Work Comp Vols List 6‐06 to 5‐07.xls that have been produced during this litigation is granted. The scope of the deposition is to be limited as discussed below. The discovery statutes "must be construed liberally in favor of disclosure… the broad scope of the discovery right, permitting a deponent to be examined " 'regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action&...

Excerpt: ...edge regarding how and when the spill that led to her fall occurred, and on an inspection report and a declaration of a store employee regarding store conditions. In order to meet its burden of production in a summary judgment motion, a defendant must show that there is a complete defense or that one or more of the elements cannot be established. Chevron U.S.A, Inc.vs. Superior Court (1992) 4 Cal. App.544,548. The defendant must show that under n...

Excerpt: ...acity of a board member… The SAC contains no negligence claims against Doane. The allegations against Doane are contained in the Fourth Cause of action, as alleged an intentional tort, and the Fifth cause of action for Fraud, (as alleged, an intentional tort). Because the SAC contains only intentional tort allegations, not negligence allegations, the demurrer on this ground is overruled. (see also Weil & Brown Civil Procedure Before Trial (TRG ...

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: ...he application for a preliminary injunction. Mr. Frey's May 3 letter requesting the continuance states only that “The defendants need time. to determine whether Ryan Rodriguez is guarantor on certain of the company vehicles as well as other business details”. Plaintiffs' application seeks a turn over order as to only one vehicle: a Ford truck. The hearing on this matter was originally set for May 10, has already been continued for six days, a...

Excerpt: ... the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. The motion must be accompanied by an affidavit (declaration) from the moving party stating: ‐what ap...

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...

Excerpt: ...�judicial relief” or a recovery other than money. The condition was imposed only to confirm and clarify the representations made by Mr. Haag that he that he forever waived any rights to assign or license use of the property for skydiving purposes. Although Petitioners obtained their litigation objective, this was not the result of any actions or change in position by the County. As to the real Parties in Interest the evidence before the court d...

Excerpt: ...Issues 1‐4, 6, 9‐15, and 18 CRC 3.1350(d)((2) provides: “The separate statement should include only material facts and not any facts that are not pertinent to the .disposition of the motion”. Defendants' Separate Statement therefore concedes the materiality of each of the facts included therein. If triable issues are raised as to any one of these issues the motion must be denied. Weil & Brown, Cal. Practice Guide: Civil Procedure Before T...

Excerpt: ...uested, Cal Rules of Court, Rule 7.955 Attorney's fees for services to a minor provides: (a) Reasonable attorney's fees “(1) In all cases under Code of Civil Procedure section 372 unless the court has approved the fee agreement in advance, the court must use a reasonable fee standard when approving and allowing the amount of attorney's fees payable from money or property paid or to be paid for the benefit of a minor”. Santa Cruz C...

Excerpt: ...ntiff has failed to obey the court order and the motion for sanctions will be granted as set forth below. B. Form Interrogatories Plaintiff has also failed to obey the court order to produce further responses to Lyng's Form Interrogatories, Set One. Therefore the motion for sanctions will be granted as set forth below. C. Request for Production Plaintiff has failed to obey the court order to produce complete responses to Lyng's Request for Produc...

Excerpt: ...ompel pursuant to Cal Code Civ Proc § 2025.480(b) applies, not the 20 days set forth in CCP § 1985.3(g). Calcagno purports to have mailed written objections on 12/21/18 electronically and by US mail. (No proof of service by mail pursuant to CCP § 1013a or proof of electronic service compliant with CCP§ 1013b has been filed.) Sixty days from 12/21/18 is 2/19/19. Adding two court days for electronic service pursuant to CCP § 1010.6(a)(3) is 2/...

Excerpt: ...to serve discovery until Jan. 17, 2019. Moreover, although Plaintiff's discovery responses were apparently due Feb. 16, 2019 and Defendant has not yet received them, it does not appear from the court file or the pleadings that Defendant has filed a motion to compel those responses. In addition, there is an alternative means to address the problem that gave rise to the motion for a continuance in that Defendant can file an ex parte application to ...

Excerpt: ... or that Kramer's claim for sick pay and penalties is preempted by the Labor Management Relations Act (LMRA). I. ANALYSIS The court is to conduct a de novo trial of an appeal from a decision of the Labor Commissioner on an employee complaint regarding wage and hour violations, pursuant to Labor Code §98.2. However, on a motion for summary judgment Appellant bears the burden of persuasion that there is no triable issue of fact and that Appellant ...

Excerpt: ...App. 4th 1187,1196) As to whether attorney's fees should not be awarded because neither side argued that the written contract was entered or agreed to, whether a party is entitled to attorney's fees for the purpose of invoking Civil Code section 1717 depends not on the evidence adduced at trial or some interim proceeding, but on the pleadings"(Manier v. Anaheim Bus. Ctr. Co., (1984) 161 Cal. App. 3d 503, 508). Here Plaintiffs allege in the SA...

Excerpt: ...clude facts or expert opinion and therefore did not raise a significant environmental effect; that the EIR was not legally required to analyze the Project's consistency with the SSCCP; that with augmentation of the Administrative Record and the lodging of a certified addendum to the Administrative Record, the Administrative Record is sufficiently LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 8, 2019 TIME: 8:30 A.M. complete; and that Petitioner's ...

Excerpt: ...ormed and believes that in or around November or December 2016, the servicing of his mortgage loan transferred to Defendant Bayview. However, Plaintiff was not notified of the servicing transfer by either SPS or Bayview prior to the date that the servicing of his loan transferred to Bayview.” (Complaint ¶ 08) However SPS provides a copy of a letter dated 11/14/16 indicating servicing of the Loan was being transferred to Bayview. (Defendant's C...

Excerpt: ...��972) the lease provision here that provides for mandatory arbitration is unenforceable as it is both procedurally and substantively unconscionable. (see Penilla v. Westmont Corp., (2016) 3 Cal. App. 5th 205, 212‐218) The arbitration provision is procedurally unconscionable in that: ‐It did not detail the amount of arbitration fees. Nor were fee schedules for JAMS arbitrators attached. (see Ex. A to ELP Petition to compel filed 11/26/18) ‐...