Excerpt: ...to make their claims for breach of contract and breach of the implied covenant of fair dealing based upon their status as an insured. As to punitive damages, Plaintiffs' allegations that CAFPA failed over a lengthy period of time to perform its duty to investigate and adjust the claim, willfuly ignored evidence, and that such conduct was ratified by a managing agent are sufficient to support a claim for punitive damages at the pleading stage. (Co...

Excerpt: ...t of no other California authority on point. Further, Plaintiff is not entitled to statutory prejudgment interest since he failed to seek that relief from the jury (Civil Code §3288; Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 103) and failed to submit any CCP §998 offer and obtain a more favorable judgment (Civil Code §3291). Tax neutralization generally applies to cases in which several years of back wage...

Excerpt: ...ny information besides the individual account information for other non‐party consumers from the documents it has produced. If it hasn't and if the master purchase agreement and verification are served prior to or at the hearing, the motion to enforce court order as to RFP no. 3 will be denied. As to RFP no. 16, Plaintiff/Cross‐Defendant needs to identify the responsive documents it is producing responsive to the request, as required by Code ...

Excerpt: ...tential–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. A court should only grant a preliminary injunction if the plaintiff shows a “reasonable probability” that it would prevail at trial and would suffer more harm from a denial than the defendant would suffer from its grant. Robbins v. Superior Court (1985) 38 Cal.3d 199, 205‐206. However, it is an abuse of ...

Excerpt: ...oses of the underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil legal services to the indigent” (Code Civ. Proc., § 384 (b) or providing the name of an appropriate cy pres recipient. (If a proposed settlement does not expressly provide that fund not claimed by the class are retained by, or revert to, the defendant, Code of Civil Procedure section 384 requires payment of the residue to a cy pres...

Excerpt: ... Civil Procedure section 397 motion is not specified; however, a motion for change of venue based on convenience of witnesses must be made within a reasonable time after the answer is filed. What constitutes “reasonable time” lies primarily in the trial court's discretion. Weil & Brown, Civil Procedure Before Trial (the Rutter Group 2021) at section 3:559.5, citing Cooney v Cooney (1944) 25 Cal.2d 202, 208. “... [A] ‘reasonable time' depe...

Excerpt: ...his motion is granted. The Court's 7/22/22 Judgment states: “Based upon the initial two causes of action [breach of contract and breach of covenant of good faith and fair dealing], and the evidence presented, the Court will find in favor of the Defendant.” (Judgment, 5:8‐10) “This Court finds in favor of the Plaintiffs as to the Partition Cause of Action. Partition by Sale will be ordered. All parties will comply with their relative respo...

Excerpt: ...ation of his or her rights or duties with respect to another ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross‐complaint in the superior court for a declaration of his or her rights and duties ..." "The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject." Otay Land Co. v. Royal Indemnity Co. (2...

Excerpt: ... the court or abuse of discretion by which either party was prevented from having a fair trial. 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary ...

Excerpt: ... it never intended...When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. ..." To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last, the mo...

Excerpt: ...that an additional change Plaintiff seeks to make is the addition of “Breach of Contract” as to the CSAA and CEA Defendants under the Second Cause of Action heading. Plaintiff states she seeks to add an intentional infliction of emotional distress claims, based on facts already pleaded.” (Plaintiff's P&A's at p.3.) Plaintiff's counsel states “[a]fter reviewing Defendants' most recent motion for summary judgment and critically re‐analyzi...

Excerpt: ...t 5, and waiting beyond the 21 day safe harbor period to file the motion, on August 29, 2022. The Court further finds that Mr. Lindow's Motion for Return of Property violated §128.7(b)(1)‐(3), in that the allegations and factual contentions therein were without evidentiary support, and were in fact demonstrably false based on the April 17, 2017 transcript of the hearing before Judge Almquist in the Tabatabai's divorce proceedings; the legal co...

Excerpt: ...incident. Plaintiff's initial response to both interrogatories was “unknown”. His amended response stated “not relevant or likely to lead to the discovery of admissible evidence because Plaintiff is not seeking past medical expenses as a component of his damages”. Defendant argues that since Plaintiff has not abandoned any claim for the costs of future care and medications, the amount he incurred in the past is probative of the amount he ...

Excerpt: ... only on the following conditions: (1) motion must be based on new or different facts, circumstances or law; and (2) the motion must be supported by a declaration showing ...what new or different facts or circumstances or law are claimed to exist.” Weil & Brown Civil Procedure Before Trial (the Rutter Group 2021) at §9:337; Code of Civil Procedure section 1008(b). In a personal injury or wrongful death case, the Code of Civil Procedure section...

Excerpt: ...tends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion. (c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that t...

Excerpt: ...e has done. It is improper to plead the evidence by which he plans to prove the ultimate facts, as Defendants seem to argue; and had Plaintiff done so that evidentiary matter would be subject to a motion to strike as “surplusage”. Weil & Brown, California Procedure Before Trial §6:127. The Demurrer itself does not comply with CRC 3.1320 (a), which requires that a demurrer state whether the ground asserted is to the entire pleading or to some...

Excerpt: ... and issuing the Notice of Determination. These combined actions are referred to herein as the “SHW Approvals”. The challenged SHW Approvals followed this Court's issuance of a writ in East Meadow Action Committee v Regents (19CV01312‐‐EMAC) directing the University to set aside its 2019 approvals of the SHW Project based on a finding that violations of CEQA had occurred in the 2019 approval process. Specifically, this Court found that th...

Excerpt: ...from a combination of Defendants' failures to provide decedent with adequate services to meet his basic medical needs, resulting in pain, suffering, a COVID‐19 infection, and ultimately death. (Complaint ¶10, 17‐19, 23‐27, 32‐33, 46‐52, 56.) The PREP Act immunizes "Covered Persons," "Program Planners," and "Qualified Persons" who affirmatively administer a covered countermeasure. Here, Plaintiffs' Complaint alleges that it was, in fact...

Excerpt: ...at SIBANNIC had “applied for federal registrations for the mark” but SIBANNIC can't ignore the remainder of QLORA'S allegations in order to win at demurrer. The FACC and Ex. B clearly establish that QLORA entered into the agreement with an understanding that SIBANNIC could actually deliver a registered mark to them for exclusive use in California, yet SIBANNIC failed to have such a mark. (FACC ¶¶ 7‐67) SIBANNIC also argues that there was ...

Excerpt: ...h in connection with a public issue.” Where a cause of action is “mixed,” and is based on both protected and non‐ protected activity, the entire cause of action may be stricken under §425.16 if the principal thrust or gravamen of the claim is protected activity. If the court determines that the defendant has made this threshold showing, the burden shifts to plaintiff to demonstrate a probability of prevailing on the claim, by showing tha...

Excerpt: ...on 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code. Cal Pub Util Code § 216 “Public utility” (a) (1) “Public utility” includes every ... telephone corporation... Cal Pub Util Code § 2891 Telephone and telegraph customer privacy; Consent to release of information a) No tel...

Excerpt: ...ths, after the judgment, dismissal, order, or proceeding was taken... Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (2) resulting default judgment or dismissal entered against his ...

Excerpt: ... of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. (b) The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought was of no sub...

Excerpt: ... admission to be withdrawn or amended. Weil & Brown Civil Procedure Before Trial (the Rutter Group, 2021) citing Code of Civil Procedure section 2033.300(b). “Relief under Code of Civil Procedure Section 2033.300 is available for all admissions, and thus permits withdrawal or amendment of admissions deemed admitted for failure to respond as well as of admissions contained in an actual response.” 3 California Deposition and Discovery Practice ...

Excerpt: ...n for order allowing filing of supplemental complaint filed 5/16/22 and Walter Dec. filed 5/16/22, Ex. 1 ¶ 20) Cal Code Civ Proc § 464 Supplemental complaint and answer (a) The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer. “As a general rule, the right to file a supplemental complaint can be exerc...

Excerpt: ... grievance form. • While Garcia was giving a “group chat” to employees by telephone, another employee texted a slur about Garcia (“shut up gay ass bitch”); Garcia then called Plaintiff, showed disinterest in talking to the person who actually sent the text, and “basically told him he was fired”. Plaintiff told Garcia that he was going to file a grievance, but was fired before he could do so. • Garcia “hated” Plaintiff because ...

Excerpt: ...te, but no new fact discovery may be propounded. Any fact discovery already propounded but not complete (such as PMQ depositions) can proceed up to and including 30 days prior to the new trial date. Motions to compel related to discovery responses propounded on 9/6/22 shall be filed no later than 45 days from the verification date. MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY Plaintiffs' motion to compel is moot based on Defendant...

Excerpt: ...ny notice of contesting the 6/6/22 tentative ruling; (3) Even if Defendant knew of the 6/23/22 hearing, it would not have appeared because Plaintiff failed to provide any notice of contesting the tentative ruling; and (4) Plaintiff's underlying motion failed to contain any new facts or law. The legislative intent behind CCP § 1008 was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstanc...

Excerpt: ...mmediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers. A valid order and judgment of indirect contempt must cover the following elements: the issuance of an order, the contemnor's knowledge of the order, the contemnor's ability to obey it, LAW AND MOTIO...

Excerpt: ...ial court decides whether there is an agreement to arbitrate between the parties, and whether the agreement covered the dispute at issue. Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960. If Defendants meet their burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, the burden then shifts to Plaintiff: “a party opposing the petition bears the burden of proving by a preponderance of the ev...

Excerpt: ...tain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor. The intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintif...

Excerpt: ...allowing the admission to be withdrawn or amended. Weil & Brown Civil Procedure Before Trial (the Rutter Group, 2021) citing Code of Civil Procedure section 2033.300(b). “Relief under Code of Civil Procedure Section 2033.300 is available for all admissions, and thus permits withdrawal or amendment of admissions deemed admitted for failure to respond as well as of admissions contained in an actual response.” 3 California Deposition and Discove...

Excerpt: ...M. 2 Regents to file a formal disqualification motion. The City did so, and Judge Marigonda agreed to recuse himself pursuant to CCP §§170.3(c)(3) and 170.1(6)(A)(iii). The Regents have moved to set aside the tentative ruling issued by Judge Marigonda. That motion is granted. This Court has undertaken an independent review of the entire file, including the supplemental briefing filed by the parties pursuant to stipulation. However, based upon i...

Excerpt: ...tory traffic controls, and design immunity. Design immunity, if established at summary judgment, is a complete bar to liability. Here, City cannot establish design immunity's second element. Triable issue as to design immunity: To establish design immunity, City must show (1) the plaintiff's injuries were caused by a feature in the plan or design, (2) that the design was approved before construction by the appropriate legislative body or entity/p...

Excerpt: ...ily law court. The only remaining debt to Maleksalehi is the interest on the loan to Enabledware, a community asset which the family law court has assigned to Tabatabai. This interest is a community debt, and the business valuations and the equalization/distribution of community assets and debts of Tabatabai and Turner are issues that have been reserved by the family law court for final determination, and have yet to be decided. The Court does no...

Excerpt: ...Civil Procedure section 2033.420.” Weil & Brown Civil Procedure Before Trial (the Rutter Group) § 8:1405, citing Garcia v. Hyster Co. (1994) 28 Cal.App. 4th 724, 736; Wimberly v. Derby Cycle Corp., (1997) 56 Cal.App. 4th 618, 638. After reviewing the timeslips attached to Mr. Redenbacher's Declaration in Exhibit 1, the Court found a significant portion of the fees requested occurred before the request for admissions were denied by the Defendan...

Excerpt: ...of the declaratory relief cause of action in his Cross‐complaint filed on August 5, 2019. (See UMF 5, 6]. The motion is denied. The motion is procedurally defective The motion is procedurally defective, as (1) Browne filed an Amended Cross‐complaint on April 5, 2022 which superseded the original cross‐complaint—so the motion is not directed to the operative pleading; (2) Browne's motion seeks a judicial declaration which differs from the ...

Excerpt: ...f the SLVUSD, and as the author of Argument. Petitioner now seeks his attorney's fees against George Wylie under the private attorney general statute (CCP §1021.5). CCP § 1021.5 allows the Court to award or deny fees, in its discretion, in cases in which the prevailing party has not obtained a monetary recovery, if (1) the action has resulted in enforcement of an important right affecting the public interest; (2) a significant benefit, whether ...

Excerpt: ...W AND MOTION TENTATIVE RULINGS DATE: August 22, 2022 TIME: 8:30 A.M. 2 (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (c) As used in this section, the following definit...

Excerpt: ...f the SLVUSD, and as the author of Argument. Petitioner now seeks his attorney's fees against George Wylie under the private attorney general statute (CCP §1021.5). CCP § 1021.5 allows the Court to award or deny fees, in its discretion, in cases in which the prevailing party has not obtained a monetary recovery, if (1) the action has resulted in enforcement of an important right affecting the public interest; (2) a significant benefit, whether ...

Excerpt: ...dmission (which there is not), “the law in this state is clear that senile dementia does not render one incapable of executing contracts or transacting business.” Holman v. Stockton Savings & Loan Bank (1942) 49 Cal.App.2d 500, 508. Further, the legislature has delegated the authority to consent to arbitrate to the patient and their heirs without violating the state constitutional right to a jury trial. Ruiz v. Podolsky (2010) 50 Cal.4th 838,...

Excerpt: ...elief obtained by the prevailing party in relation to the hours reasonably expended on the litigation and whether the expenditure of counsel's time was reasonable in relation to the success achieved. Although Hensley v. Eckerhart (1983) 461 U.S. 424, 429 [76 L. Ed. 2d 40, 103 S. Ct. 1933] interpreted the federal civil rights statute, the court's approach is consistent with the policies underlying the anti‐SLAPP statute. The fee‐shifting provi...

Excerpt: ...appraisers. Plaintiffs' 3rd c/a is for involuntary dissolution of the corporation pursuant to Corporations Code § 1800(b)(2)(4) – any shareholder in a closely held corporation (35 shareholders or less) may bring a dissolution action when those in control of the business have engaged in persistent and pervasive mismanagement, fraud or abuse of authority. It appears Plaintiffs are entitled to bring a claim for dissolution as the shareholders of ...

Excerpt: ...oc § 2025.450 Failure to comply with deposition notice; Motion for order compelling compliance; Requirements: (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or t...

Excerpt: ...vette doctrine, set forth in Hooker v Department of Transportation (2002) 27 CA4th 198), applied. LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 11, 2022 TIME: 8:30 A.M. 6 A renewed motion may only be brought on “newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion”. CalTrans does not present any new facts or circumstances. It requests judicial notice of the same evidence as...

Excerpt: ...ts are entitled to recover on the claims on which they prevailed upon a proper application by Cross‐Defendants. This ruling is consistent with Mann v Quality Old Time Service, Inc. (2006) 139 Cal, App. 4th328, which holds that a partially prevailing party on an anti‐Slapp motion is not necessarily entitled to all incurred fees, even where the work on the successful and unsuccessful claims was overlapping. Mann instructs the court to consider ...

Excerpt: ...orm. • While Garcia was giving a “group chat” to employees by telephone, another employee texted a slur about Garcia (“shut up gay ass bitch”); Garcia then called Plaintiff, showed LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 10, 2022 TIME: 8:30 A.M. 3 disinterest in talking to the person who actually sent the text, and “basically told him he was fired”. Plaintiff told Garcia that he was going to file a grievance, but was fired bef...

Excerpt: ...use for the number of interrogatories, despite the good cause statement that accompanied them. It also objects that the request is cumulative of other document requests which Defendant responded to and are not the subject of this motion. Defendant also relies on a trade secret objection and others (vague, ambiguous). Defendant identified 22 produced documents as a response to the interrogatories, and that it is willing to further meet and confer....

Excerpt: ...party, set aside any void judgment or order. Cal Code Civ Proc § 1008 Subsequent application LAW AND MOTION TENTATIVE RULINGS DATE: August 8, 2022 TIME: 8:30 A.M. 3 (a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order a...

Excerpt: ...ese Defendants. The demurrer is overruled. The TAC sufficiently alleges that these Defendants are subject to the CMIA Plaintiff alleges that Forbes, Hill and Perko were “a provider of health care and/or an authorized recipient of personal and confidential medical information as defined in the CMIA.”; that Forbes and Hill have admitted in their responses to requests for admission that they are a “licensed health care professional”; and tha...

Excerpt: ...t 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. (e) This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewal...

Excerpt: ...iles containing medical information, and security systems restricting access to files containing medical information. (b) No employee shall be discriminated against in terms or conditions of employment due to that employee's refusal to sign an authorization under this part. However, nothing in this section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee's refusal to sign ...

Excerpt: ...plainant”), despite undisputed facts that during the same encounter they engaged in other consensual sex acts with each other. The parties met at Doe's house on June 16, 2020, where he cooked her dinner, they drank wine, and had at least two separate sexual encounters. (AR 18‐20, 51, 1138) It is undisputed that complainant communicated and Doe understood she did not want to have sexual intercourse with him. (AR 1073, 1160) During one of their...

Excerpt: ...0 ft right of way that crosses Parcel C and Defendants' Parcel A, and terminates at the property line of Plaintiffs' Parcel B,” but the court did not rule, as stated in Plaintiff's Judgment, that the Plaintiffs possess “a 40 foot right of way for road and utility purposes as shown upon” the 1977 Map attached to the Judgment as Exhibit A”. (MPA pg.4:16‐22) However, the Notice of entry of order filed 2/28/22 states, “Plaintiffs have est...

Excerpt: ...ed on different legal theories, and have different elements. In the second cause of action Plaintiff is alleging liability based on Plaintiff's specific request to Defendants for “adequate and full coverage,” and Defendants' promise to perform an inspection, presumably to assure that coverage was “adequate and full.” (See Desai v Farmers Insurance Exchange (1996) 47 Cal.App.4 th 1110, 1119‐1120; CACI 2361. In the third cause of action P...

Excerpt: ...e not sealed. (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. The facts supporting these findings are as follows: Plaintiff, through her declaration, has shown good cause exists to seal the complaint. The nature of the complaint involves personal, private, and painful matters which occurred when she was a minor. Defendant has not responded to the complaint, which is viewab...

Excerpt: ...].) A public entity is not liable for an injury arising out of an act or omission of the public entity or its employees except as provided by statute. (Gov. Code, § 815, subd. (a).) (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1346‐1347 [75 Cal.Rptr.3d 168].) Cal Gov Code § 830 Dangerous condition; Property of a public entity: As used in this chapter: (a) “Dangerous condition” means a condition of property that creates a substan...

Excerpt: ...portion of Defendants' property. Plaintiffs seek a further order requiring Defendants to remove a locked bollard and sawhorse they installed at the entrance to the secondary driveway easement. The burden of proof is on the moving party to show the elements necessary to support the issuance of a preliminary injunction. Weil & Brown, Civil Procedure Before Trial, §9:632.1. These elements are (1) a reasonable probability of success on the merits; a...

Excerpt: ...t included SCCS's stipulation to certain facts, including that, in the absence of inaccurate and incomplete information from Keenan & Associates (Keenan), SCCS would not have placed Plaintiff on the 39 month rehire list and would instead have immediately reinstated Plaintiff. LAW AND MOTION TENTATIVE RULINGS DATE: July 18, 2022 TIME: 8:30 A.M. 2 Plaintiff proceeded to trial against Keenan. The jury found Keenan liable for intentional torts and aw...

Excerpt: ...e stated generally that the cause of action is barred by the provisions of section (giving the number of the section and subdivision thereof, if it is so divided, relied upon) of the Code of Civil Procedure; and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing that the cause of action is so barred. The defense of the statute of limitations is not waived, if it was "pleaded or presented to the ...

Excerpt: ...he $82,000 line of credit was secured against his property located at 362 Pike Road Ben Lomond, CA. (Dec.of Noce ¶¶2‐3) Mr. Noce lost the property through foreclosure in May of 2011. (Dec. of Noce ¶4) Pursuant to the terms of the line of credit, Noce was required to make monthly payments on the HELOC. (Dec. of Noce ¶6) Noce stopped making monthly payments on the HELOC. He believed the foreclosure extinguished any outstanding debt. (Dec. of ...

Excerpt: ...ations and other documentary evidence, as well as any oral testimony the court LAW AND MOTION TENTATIVE RULINGS DATE: July 11, 2022 TIME: 8:30 A.M. 6 may receive at its discretion, to reach a final determination. Ruiz v Moss Bros. Auto Group, Inc. (2014) 232 Cal. App. 4th 836, 842. The party seeking arbitration has the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. If challenged, the petitione...

Excerpt: ...2013) 215 Cal.App.4th 309, 313‐314 [154 Cal.Rptr.3d 907].) Defendants assert that “all of the entity Pro Farms Defendants are unincorporated associations...as they are all LLC's”, (Reply pg. 5:18, Crummer Dec. filed 6/3/22 ¶¶ 2,4, RJN pg. 2:21) and that in a breach of contract action, pursuant to CA CCP §§ 395.2 and 395.5, venue is proper where the contract is made or is to be performed. (MPA pg. 11:4‐13) Cal Code Civ Proc § 395.2 Ve...

Excerpt: ...de the order, to reconsider the matter. Here, the Notice of Entry of Judgment filed 5/5/22 was served by mail on Plaintiffs on 5/5/22. Adding 5 days for service by mail (CCP § 1013), the motion for reconsideration was due filed on 5/20/22. Plaintiffs filed a “notice of intent to file a motion for reconsideration” on 5/20/22 but did not file the motion for reconsideration until 6/13/22 and provide no authority to support the position that a n...

Excerpt: ...th 675, 682‐683, because (a) Plaintiff has no evidence of a special relationship between himself and these Defendants which would give rise to a legal duty to protect against third party conduct: and (b) Defendants did not have any prior knowledge that the dog that bit Plaintiff had any dangerous propensities; and (2) the strict liability cause of action, which is brought under Civ. Code §3342, has no merit, because strict liability under this...

Excerpt: ...GS DATE: June 29, 2022 TIME: 8:30 A.M. 2 the deed of trust (DOT) name SDC as an additional insured/loss payee. SDC fails to seek judicial notice of the DOT and it is not an exhibit to the 6AC. In its reply, SDC submits Plaintiff's unverified admissions that the insurance required SDC to be named as an additional insured and the policy did not. For purposes of this demurrer, unverified admissions are unpersuasive. Regarding Plaintiff's 7th cause o...

Excerpt: ... policy: discrimination; sexual harassment; supervisor responsibilities; ethics; relationships; performance; and conduct. City alleged and was successful in demonstrating to the City Council that Ball violated these city policies when he sexually harassed a subordinate and retaliated against her. Petitioner's writ is denied. As discussed below, the weight of the evidence supports findings that Petitioner engaged in conduct that violated the City'...

Excerpt: ... not apply. In limited civil cases, in addition to extrinsic fraud or mistake, the Court's equitable powers to vacate judgments are extended to include inadvertence or excusable neglect. (CCP § 86(b)(3); Cal Practice Guide, (TRG 2021) Civil Procedure Before Trial, § 5:435‐438.) The evidence before the Court is that Defendant relied upon an unidentified third‐party financial institution to help him, and that he was working with Discover and ...

Excerpt: ...'s and high level executives established that they had essentially zero involvement or knowledge in particular cases (except in some instances to be cc'd on letters or authoring memos related to systems or prototypes). Liberty, 10 Cal.App.4th at 1288‐1289. This case is different. Here, VPX's CEO signed the exclusive distribution agreement with Plaintiff's competitor and was identified by the PMK as the final decision maker with legal as to buy ...

Excerpt: ...damental to personal autonomy must be supported by a compelling interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557 [220 Cal.Rptr.3d 472, 398 P.3d 69].) Thinh's objections are based upon his right to privacy in these financial records. CCP § 1985.3. Thinh claims that if the records are produced, Tran will know the financial institution that originated the wire transfers and further fabricate and fact‐fit his case against Thinh. (P&...

Excerpt: ...iff‐borrower's negligence claim against a junior lender for allegedly failing to timely respond to the borrower's application to modify a second position deed of trust, resulting in the sale of the loan and foreclosure while the application was still pending. The court affirmed the general rule, stated in Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089 (Nymark), that financial institutions owe no duty of care to a borrower ...

Excerpt: ...violently and unexpectedly nosedive and slam into the pavement. Plaintiffs assert nine causes of action against FM, and a tenth claim/prayer for punitive damages. The first five causes of action are predicated on Plaintiffs' defective product claim [negligence, negligence per se; strict liability; failure to warn; and negligent design], and are referred to herein as the “negligence/product liability” causes of action. The 7th through 9th caus...

Excerpt: ...until June 1, 2020 to perform. Plaintiffs allege that the reasons given for the cancellation were a pretext; and that on that same date (May 31, 2020) Defendants entered into a contract to sell the property to the Rodriguez Defendants for a higher price. Plaintiffs' Fourth Amended Complaint alleges that have Plaintiffs timely performed all of their obligations under the PSA; and alternatively, that to the extent there was a failure to timely prov...

Excerpt: ...REQUEST FOR PRODUCTION OF DOCUMENTS (“RFP”): RFP 2: This request seeks all documents related to or evidencing the account on which Plaintiff's claim is based. Plaintiff's amended response identifies bates nos. 1‐69 and then states “Velocity is producing all documents in its possession, custody and control that are responsive to this request.” While this response is not verbatim from the code, it does appear to identify that documents 1�...

Excerpt: ... following judicial declarations: 1. The 1962 and 1965 Agreements require the City to provide water service throughout the campus “as may be necessary to provide for campus development” via a system that is “at all times capable of supplying to the University water up to 2,000,000 gallons in twenty‐four hours for fire flow and ordinary use.”. 2. The City's performance of its obligations under the 1962 and 1965 Agreements are not excused...

Excerpt: ...he act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)" If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88) The inquiry under the catchall provision calling for a two‐part analysis is rooted in the statute's purpose and internal logic....

Excerpt: ... with more detail than other causes of action. Heritage Pac. Fin., LLC v. Monroy (2013) 215 Cal.App.4th 972, 989. “To assert a cause of action for fraud against a corporation, a plaintiff must allege the name of the person who allegedly made the fraudulent representation, his or her authority to speak, to whom he or she spoke, what was said and when it was said. General or conclusory allegations will not suffice to plead a cause of action for f...

Excerpt: ...f must plead facts showing the defendant's misrepresentation (or omission that the defendant had a duty to disclose), the defendant's knowledge of falsity, the defendant's intent to defraud (i.e., to induce the plaintiff's reliance on the misrepresentation), the plaintiff's justifiable reliance, and the resulting damage. Kalnoki v. First Am. Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 25. “Every element of the cause of action for ...

Excerpt: ... to BPC §7031(b). Defendant's Answer to the Complaint further asserts, as an affirmative defense, that Plaintiff has no standing to assert any causes of action because of these suspensions. Defendant now moves for bifurcation of the issue of Plaintiff's licensure status under CCP §597 [trial of special defense] and BPC § 7301(e) [court to determine at evidentiary hearing whether there has been substantial compliance with licensure requitements...

Excerpt: ...following conditions must exist before the corporate existence is disregarded. Kao v. Joy Holiday (2020) 58 Cal.App.5th 199, 205‐206. • It must appear that the corporation is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of such person and the corporation has ceased; and LAW AND MOTION TENTATIVE RULINGS DATE: June 6, 2022 TIME: 8:30 A.M. 2 •...

Excerpt: ...icity load of its residents and businesses, and purchase electricity on their behalf. Plaintiff alleged that Defendant's automatic enrollment procedure, or "opt‐ out policy,” interfered with Plaintiff's existing contracts with PG&E and forced Plaintiff into a contractual relationship with Defendant. The Court found that Defendant's enrollment system was automatic but not mandatory. “Even assuming that Plaintiff's money is used to fund Defen...

Excerpt: ...ions at this time. (To ensure proportionality, trial courts should generally take an “incremental” approach—that is, they should “attempt less severe alternative [sanctions]” unless the “record clearly shows lesser sanctions would be ineffective.” (Siry Investment, L.P. v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1117 [259 Cal.Rptr.3d 466].) PLAINTIFFS' (UNOPPOSED) MOTION TO COMPEL RESPONSES TO REQUESTS FOR ADMISSION RE: JOHN ELLI...

Excerpt: ...oduced undisputed evidence demonstrating that Apex owed no duty to Ramos, as the home inspection conducted by Apex was performed two months before the fire, for clients other than Ramos, who decided not to purchase the property (UMF 5, 15); and Apex did not enter into any written contract with Ramos, who obtained the Apex inspection report from unknown persons without the permission of Apex (UMF 16, 18, 60) • Apex has produced undisputed eviden...

Excerpt: ...e names of the persons who made the representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. Kalnoki v. First Am. Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 35. QLORA fails to provide sufficient details regarding who spoke to whom, their authority to speak, the content of the allegedly fraudulent communications, and when those communications were made. Since QLORA is a...

Excerpt: ... 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 defendant or cross‐defendant has met that burden, the burden shifts to the plaintiff or cross‐complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross‐complainant shall no...

Excerpt: ..., or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with respondent's points and authorities, or may be ordered to be filed by the court. Except when otherwise prescribed by statute, the cost of preparing the record shall be borne by the petitioner. (b) The inquiry in such a ...

Excerpt: ...on may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. For good cause shown, the court may order that a deposition shall not be taken or will be taken only under certain conditions "or the court may make any other order which justice requires to protect the party or witness. (Flynn v. Superior Court (1979) 89 Cal.App.3d 491, 495 [152 Cal.Rptr. 796].) Although First Ame...

Excerpt: ...lment. Plaintiff seeks punitive damages on the fraud claims. Defendant demurs and moves to strike the entire complaint and the separate causes of action on various theories. Defendant further moves to strike (1) the alter‐ego allegations made against Defendant's CEO, Paul Katchadourian; and (2) the punitive damage allegations. Plaintiff moves to bifurcate the trial, with the issues of liability for fraud and violation to be heard before the iss...

Excerpt: ...easonable probability of success on the merits; and (2) who will suffer greater injury? (Weil & Brown, Civ. Pro. Before Trial, §9:522, 9:527, 9:531,) The burden of proof is on the moving party to show all elements necessary to support the issuance of a preliminary injunction. (Weil & Brown supra at 9:632.1.) 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 le...

Excerpt: ...6) deceit. (First Amended Cross The motion by Plaintiff/Cross‐Defendant for judgment on the pleadings is granted with leave to amend as to the causes of action for negligence, interference with prospective economic advantage, and intentional interference with contract The motion is denied as to the causes of action for civil damages under Pen. Code §496(c), conversion and deceit. LAW AND MOTION TENTATIVE RULINGS DATE: MAY 23, 2022 TIME: 8:30 A...

Excerpt: ...icity load of its residents and businesses, and purchase electricity on their behalf. Plaintiff alleged that Defendant's automatic enrollment procedure, or "opt‐ out policy,” interfered with Plaintiff's existing contracts with PG&E and forced Plaintiff into a contractual relationship with Defendant. The Court found that Defendant's enrollment system was automatic but not mandatory. “Even assuming that Plaintiff's money is used to fund Defen...

Excerpt: ...rner. The $1,581,000 corporate loan on which this action is based was made to Enabledware, which is the entity liable for the loan debt. As part of the Settlement with Tabatabai , Malek has agreed to dismiss the action he filed in Santa Clara Superior Court for the repayment of this loan. The settlement was reached after the family law court, in dividing the community assets of Turner and Tabatabai in their divorce proceedings, assigned Enabledwa...

Excerpt: ...5.16, subdivision (e)" If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 [124 Cal.Rptr.2d 530, 52 P.3d 703].) The First cause of action of the X‐C for cancellation of instrument requests cancellation of the Purchase Agreement alleging the Agreement is void because Plaintiffs forged seller Tom...

Excerpt: ...quest for Hearing within the 90 days after filing this action, as required by Pub. Res. Code §21167.4. Petitioner filed this action on November 4, 2021; the 90 day deadline to file the Request for Hearing expired on February 2, 2022; and Petitioner filed her Request for Hearing (filed “on demand”, after the Clerk initially rejected it as untimely) on February 8, six days after the deadline. Petitioner asserts that discretionary relief is ava...

Excerpt: ...ment, or any other place of business in which barbering, cosmetology, or electrolysis is practiced unless licensed under this chapter. Persons licensed under this chapter shall limit their practice and services rendered to the public to only those areas for which they are licensed. Any violation of this section is subject to an administrative fine and may be subject to a misdemeanor. Plaintiff held a license for 521 E. Lake Ave., Watsonville whic...

Excerpt: ...this action is ordered stayed pending the resolution of Plaintiff's federal court action, Shirazi v Oweis et. al., U.S. District Court, Northern District of California, Case No. 5:21‐cv‐136 EDJ‐VKD. Abatement based on another action pending Plaintiff names only The Regents as a defendant in this action, and names only the individual UC employees in the federal court action. Both parties agree that if the federal court determines on the meri...

Excerpt: ...84,370, pursuant to SCCC §7.128.210. Although Mr. Redenbacher denied Petitioner's appeal, he reduced the civil penalty to $174,370 on the mitigating factor that Petitioner was a first time offender. Petitioner asserts that (1) SCCC §§7.128.050 and 7.128.210 are preempted by state law‐‐ specifically Health & Safety Code §§11358, 11359 and 11360, and Bus. & Prof. Code §26038; and (2) that the civil penalty imposed by the Hearing Officer �...

Excerpt: ...f the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it...

Excerpt: ...tionally and with a conscious disregard for the rights of Moran and the general public”. A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those...

Excerpt: ...in Reply to objection to minimum price bid (RJN no. 5) that: 1. At an early conference Judge Silver indicated he would go with $5.3 million as the Opening Bid. The stated rationale was that if the property is worth more, the market will drive the price up at the auction. Judge Silver also stated that if Winterhalder believed $5.3 million was a fire sale price then he or his consortium could buy it. 5. Winterhalder was dissatisfied. He did three t...