Excerpt: ...tonomy 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].) Personnel, tenure, and promotion files relating to the employee relate to the private affairs of the employee and are maintained in confidence by the employer. (Board of Trustees v. Superior Court of Santa Clara County (1981) 119 Cal.App.3d 516, 526 [174 Cal.Rptr. 160].) The scope of the inquiry permitted d...

Excerpt: ... law because, for example, the property is tax exempt, nonexistent or outside the jurisdiction, and no factual questions exist regarding the valuation of the property which, upon review by the board of equalization, might be resolved in the taxpayer's favor, thereby making further litigation unnecessary.” (Williams & Fickett v. County of Fresno (2017) 2 Cal.5th 1258, 1275 [218 Cal.Rptr.3d 362, 395 P.3d 247].) Although Plaintiff argues that prio...

Excerpt: ...der all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (p) For purposes of motions for summary ju...

Excerpt: ...sition should be stayed and/or the deposition notice/RFP quashed as protected by the attorney client privilege or work product doctrine: 1. Good cause exists for production of the videos and videographer. Similar to Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166 [23 Cal.Rptr. 368, 373 P.2d 432].), Plaintiff has shown a need for the films both in order to protect against surprise, and in order to prepare for examination of th...

Excerpt: ...overriding interest that supports (un)sealing the records, namely the records are critical to show the Federal Court the legal history of this case and to support the County defendants' legal and procedural defenses to the new Federal Action. In addition, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed: the pleadings, orders, and filings in this Writ case are essential to the County and...

Excerpt: ...thorized by any of the following: (A) Contract. Cal Civ Code § 1717 Contract provision for attorney fees and costs (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party s...

Excerpt: ...t's ruling on the demurrer to the Second Amended Cross‐Complaint, that “once a demurrer is sustained to an earlier version of a complaint, no further demurrers are allowed on grounds that could have been raised by the demurrer to the earlier pleading”, citing CCP §430.41(b). While the prior motion was denied without prejudice, the Court's Tentative Decision stated: LAW AND MOTION TENTATIVE RULINGS DATE: APRIL 4, 2022 TIME: 8:30 A.M. 4 Befo...

Excerpt: ... new defendant is the alter‐ego of an original judgment debtor. Wolf Metals Inc. v Rand Pacific Sales, Inc. (2016) 4 Cal. App. 5 th 698,, 703; Wollersheim v Church of Scientology (1999) 69 Cal. App. 4th 1012, 1017. Plaintiff has a failed to meet her burden of proof as to either factor. Opportunity to be heard Plaintiff argues that Dr. Larsh was put on notice at the outset of the proceedings through communications with her counsel, Tom Griffin, ...

Excerpt: ...) As used in this section, the following definitions shall apply: LAW AND MOTION TENTATIVE RULINGS DATE: March 28, 2022 TIME: 8:30 A.M. 10 (1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel a...

Excerpt: ...oid unnecessary costs or delay. A consolidation of actions does not affect the rights of the parties. The purpose of consolidation is merely to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions. (Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 86 [71 Cal.Rptr. 394].) Here there are common questions of law and fact re: the loan of $450,0000. by Tai Tran to Thinh and...

Excerpt: ...e 5/9/22 trial date, although William R. Chestnut has significant health issues, Defendants have not met their burden of showing the LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 25, 2022 TIME: 8:30 A.M. 2 health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation, therefore the motion to advance is denied. Before addressing the motion to sever the equitable issues is the question of wh...

Excerpt: ...rial date and to place the stipulation to extend the five year statute on the record. LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 23, 2022 TIME: 8:30 A.M. 3 Turning to the motion to bifurcate to try the equitable issues first, as a general matter the California Constitution affords a right to a jury trial in common law actions at law that were triable by a jury in 1850, but not in suits in equity that were not triable by a jury in 1850. In apply...

Excerpt: ...e motion to modify the subpoenas of Abel Rodarte's medical records is granted. The subpoenas shall be limited to records of any treatment from 07‐03‐2020 to the present related in any way to treatment of injuries to the neck, back, face, abdomen, contusions to limbs, and head including concussion and post‐concussion syndrome. Sanctions shall not be awarded. MARCIEL RODARTE For the reasons set forth above, the motion to modify the subpoenas ...

Excerpt: ...rest in the action or proceeding or by any other transfer of an interest. The action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding. Cal Code Civ Proc § 1908 Conclusive effect of judgment in various cases (a) The effect of a judgment or final order in an action or special proceeding before a court or judge of this state...

Excerpt: ...ste Control Law. Health & Saf Code § 25189 5 th cause of action Unfair Business Practices (B & P § 17200) The civil penalties that may be awarded under these claims, unlike the classic legal remedy of damages, are noncompensatory in nature; their primary purpose is to secure obedience to statutes and regulations imposed to assure important public policy objectives. ... Their focus is preventative...the gist of the civil causes of action must pr...

Excerpt: ...etter was provided to the court at all regarding any attorney's availability for trial including Mr. Haselton's unavailability on June 6,2022 or defense counsel's unavailability, no good cause is found to advance the trial date and the motion to advance is denied. Counsel are requested to appear at the hearing to set a new trial date and to place the stipulation to extend the five year statute on the record. Turning to the motion to bifurcate to ...

Excerpt: ...tion or dismisses the appeal. The prevailing party is the appellant if the court reverses the judgment in its entirety. The Remittitur filed 1/20/22 says, “The December 2019 order granting the Bayses' motion for attorney fees is affirmed. The Bayses are entitled to their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)” Because the Court of Appeal affirmed the December 2019 order granting the Bayses' motion for attorney fees, Bays ar...

Excerpt: ... determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferenc...

Excerpt: ...d the contract “and waived that right”; 3. That Defendants' affirmative defense of dismissal has no merit; 4. That Defendants' affirmative defense of latches has no merit; 5. That Defendants' affirmative defense of privilege has no merit; LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 8, 2022 TIME: 8:30 A.M. 6 6. That Plaintiffs are entitled to summary adjudication of their 6th cause of action for declaratory relief to determine Defendant's rig...

Excerpt: ...failure by Defendants to perform any agreement in the MIPA or Operating Agreement constituted a default; and further provided for acceleration of the Notes upon a change in control of Scharf Investments. Plaintiffs alleged that default events as specified in the MIPA and TOA had occurred, and that there had been a change in control of the company. Shortly after Plaintiffs filed their complaint Defendants paid Plaintiffs the sum of $18 Million. Th...

Excerpt: ...action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. Because there is but one complaint in a civil action, the filing of an amended complaint moots a motion directed to a prior complaint. (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130‐1131) MOTION FOR MONETARY SANCTIONS UNDER CCP § 128.7 Cal Code Civ Proc § 128.7 Signing of pleadings and motion papers ...

Excerpt: ...pliance hearing will be set approximately 60 days from the date of the continued hearing below. Prior to the compliance hearing, Plaintiff's counsel is directed file a report in compliance with CCP sec. 384.5 and Cal Gov Code § 68520 (a)(3), attaching as exhibits to the report the order granting final approval of class action settlement and a copy of the executed Settlement Agreement. The Court clerk will forward the Report and attachments to th...

Excerpt: ... extrinsic evidence is presented. (De Guere v. Universal City Studios (1997) 56 Cal.App.4th 482, 501, 503 [65 Cal.Rptr.2d 438].) If there is a conflict in the extrinsic evidence, the factual conflict is to be resolved by the jury...when ascertaining the intent of the parties at the time the contract was executed depends on the credibility of extrinsic evidence, that credibility determination and the interpretation of the contract are questions of...

Excerpt: ... the evidence that there is a valid agreement to arbitrate between the parties. Amanda Smith states in her declaration: ‐She has been employed at Harmony as Senior Human Resources Director since Sep. 2019. In that role, she is familiar with Harmony's broader employee relations policies and procedures and oversee Harmony's Human Resources Department. LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 3, 2022 TIME: 8:30 A.M. 5 ‐Based on her role, she...

Excerpt: ...cept the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (o) A cause of action has no merit if either of the following exists: (1) One or more of the ...

Excerpt: ... seriously disturb or disrupt the marital relationship. Society stands to lose more from such disruption than it stands to gain from the testimony which would be available if the privilege did not exist. (Evid. Code, § 970 (Deering, Lexis Advance through all 770 Chapters of the 2021 Regular Session).) Courts in other jurisdictions have consistently held that the privilege cannot be asserted to withhold communications concerning ordinary business...

Excerpt: ...o the challenged elements of his causes of action. Plaintiff has failed to meet that shifted burden. The legal malpractice c/a is time barred. This cause of action is barred by the one year statute of limitations. It is undisputed that this action was filed on February 6, 2018, more than three years after Plaintiff received (i) notice of a potential claim, by 3/9/15 email from a TCK attorney rejecting Plaintiff's request that TCK sue Boston Bank ...

Excerpt: ...ndition of the judgment or the making of the order being appealed”. The oral pronouncement of the order in open court generally marks the beginning of the time to appeal, unless a statute requires a certain form of order, in which case the order is only effective when made in the statutory form. However, if the matter is taken under submission and the court issues a written order, which is both filed and served on the parties, the time for fili...

Excerpt: ...h the terms of the account; 3. That Defendant made purchases and payments on the account; 4. That Defendant failed to make required payments on the account as they became due; 5. The last payment was made on 9/23/19. 6. That Defendant owes Plaintiff the sum of $19,129.24; 7. That Plaintiff provided Defendant with billing statements for the sums owed on the account; 8. That at the time Defendant received the billing statements, Defendant did not o...

Excerpt: ... that exceed 180 days are tolled from April 6, 2020, until October 1, 2020. (CA Rules of Court, Appendix I Emergency Rules Related to COVID‐19, Emergency Rule 9 (Subd (a) amended effective May 29, 2020.) “To “toll” has been defined most pertinently as “to stop the running of; to abate .” (Black's Law Dict. (8th ed. 2004) p. 1525.) When it comes to the tolling of a statute of limitations, we have stated: �...

Excerpt: ...2 P.2d 985].) The Court of Appeal ordered that Paetkau be awarded his fees. (See Remittitur p. 24.) The fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate atto...

Excerpt: ... a demurrer. "[W]e are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [77 Cal.Rptr.2d 709, 960 P.2d 513].) As to the demurrer to the Third cause of action based on uncertainty, ...

Excerpt: ...nsider the ordinary and customary fees charged by similar experts for similar services within the relevant community and any other factors the court deems necessary or appropriate to make its determination. Defendant's first disclosed toxicologist Dr. Edwin Smith charged $300.00/hour. (Amended P's & A's in support of motion to set expert fees pg.4:3, Ex. 1 to Walker declaration pg.4:6) The Expert Institute charges $415/hour for a toxicologist. (E...

Excerpt: ...of eminent domain to acquire for that use property appropriated to public use if the use for which the property is sought to be taken is a more necessary public use than the use to which the property is appropriated. Where property is sought to be acquired pursuant to this section, the complaint, and the resolution of necessity if one is required, shall refer specifically to this section. The Court in People ex rel. Public Utilities Com. v. Fresn...

Excerpt: ...t Defendant failed to return his security deposit, that claim is barred by res judicata, as that issue was decided by the judgment in Small Claims Court Case no. 19CV00072. The remaining allegation that Defendant “was very unprofessional” does not support a claim for negligence. As these defects cannot be cured by amendment, leave to amend is denied. Plaintiff's second cause of action, for “Intentional Tort”, alleges that Defendant took a...

Excerpt: ...ained without leave to amend. The demurrer to the third cause of action for intimidation‐physical tort is sustained without leave to amend. Plaintiff's allegations are vague, uncertain, and unintelligible. Plaintiff's allegations do not state sufficient facts to constitute a cause of action for retaliation (Civ. Code §1942.5). Therefore the demurrer to the fourth cause of action for retaliation is sustained without leave to amend. The allegati...

Excerpt: ...use 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 completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (p) For purposes of motions for summary judgment and summary adjudication...

Excerpt: ... Court finds that the motion is timely based on the delay in Plaintiff's discovery of the information which potentially implicates Mr. Katchadourian in the scheme which forms the basis of Plaintiff's fraud claim. The Court further finds that Defendants will not be prejudiced by the amendment to add Mr. Katchadourian as a defendant, since his alleged liability is based on the same facts and scheme alleged in the original complaint. MOTION FOR RELI...

Excerpt: ... Shahibi Dec, filed 1/28/22) On 7/2/21 an order was filed appointing Jerilynn Chestnut as guardian ad litem for Bill Sr. In late October, Plaintiffs' counsel proposed having neuropsychologist Dr. Gerard Chambers examine Bill Sr., following which Dr. Chambers was jointly retained. (Shahibi Dec, filed 1/28/22 ¶ 6) On 1/14/22 Dr. Chambers examined Bill Sr. agreeing to address three questions: (1) can William Sr. understand questions, (2) can Willia...

Excerpt: ...his court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally co...

Excerpt: ...pter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division. Timely claim presentation is not merely a procedural requirement but is ... ‘“‘a condition precedent to plai...

Excerpt: ... Cal.Rptr. 754, 652 P.2d 985].) The Court of Appeal ordered that the Saiches be awarded their fees. (See Remittitur p. 24.) The fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. “California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determinatio...

Excerpt: ...ated the different treatment. The demurrer to the third cause of action for “retaliatory harassment” is sustained with leave to amend. Plaintiff does not state sufficient facts to constitute a cause of action for retaliation nor does she state sufficient facts to constitute a cause of action for harassment. The demurrer to the fourth cause of action for “intimidation physical tort” is sustained with leave to amend. Plaintiff's allegations...

Excerpt: ...leads facts showing the privity necessary for these claims. By further alleging that Gold Coast Gardens assigned its contractual rights to Florival, the Second Amended Complaint pleads facts showing that Florival also has standing to bring these claims. Contract Claim: Defendant asserts that the contract claim is defective and uncertain, as the Second Amended Complaint makes conflicting allegations of a written, oral and an implied contract; and ...

Excerpt: ...2004) 117 Cal.App.4th 318, 328 “an employer is liable for sexual harassment of an employee by a nonemployee under certain circumstances”.) In addition, there has not been unreasonable prejudicial delay, nor has the Court been deprived of jurisdiction based on Plaintiff's voluntary withdrawal of her claims to the Labor Commissioner. The demurrers to the Fifth‐Ninth causes of action are overruled. Moreover, the allegations of unpaid employee ...

Excerpt: ... moves for relief from waiver of those objections on the basis of mistake, inadvertence or excusable neglect. The support for Keenan's motion is provided by defense counsel Frances O'Meara, who declares: The deadline for Keenan's responses was not calendared due to an oversight of my office. The primary handling partner and the primary associate served with the subject discovery are no longer employed with FMG for reasons unrelated to this motion...

Excerpt: ...40. (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. Here, Plaintiffs argue, “Indeed, it is because of testimony elicited from Mr. Hays at his June 2, 2021 deposition that allegations were added to sue him not only in his individual capacity but also ...

Excerpt: ...ry adjudication as to one or more issues of duty, if the party contends 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 completely disposes of an issue of duty. (p) For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff has met his or her burden of showing that there is no defense to a cause of action if that...

Excerpt: ...f Defendant wishes to prevent Plaintiff from taking possession, Defendant must file an undertaking in the amount of $20,312.53, the amount of Plaintiff's claim. (CCP § 515.020(b)) A writ of possession shall issue as to the following claimed property: 2019 HARLEY‐ DAVIDSON FLSL SOFTAIL SLIM, VIN 1HD1YDJ64KB060585. Defendant is ordered to allow Plaintiff to take possession of the property. ...

Excerpt: ...rationale is that “A malpractice claim focusing on an attorney's incompetent handling of a previous lawsuit does not have the chilling effect on advocacy found in malicious prosecution, libel, and other claims typically covered by the anti‐SLAPP statute. In a malpractice suit, the client is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client's interests while doing ...

Excerpt: ...e integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter's knowledge or consent. ..."[a] fiduciary who commits a breach of his duty as a fiduciary is guilty of tortious conduct to the person for whom he should act. ... [T]he liability ...

Excerpt: ...tter, including time spent drafting and revising pleadings, meeting with clients, and preparing for and presenting the case at trial. (Serrano v. Priest (1977) 20 Cal.3d 25, 28‐29, n. 4.) "Reasonable" attorney's fees are based on the prevailing market rate where the legal services were rendered. PLCM Grp. v. Drexler (2000) 22 Cal.4th 1084, 1095. In determining a reasonable hourly rate, the court should be guided by the rate prevailing in the co...

Excerpt: ...ion 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. First, we ask what “public issue or ... issue of public interest” the speech in q...

Excerpt: ...The only “existing road' depicted on the Surveyor's Map attached to the Declaration of Noah Selman (attached to the Declaration of Aaron Mohammed as Exhibit A) is Russell Ridge Road. Mr. Selman's declaration and attachments indicate that the Ridge Runner Plaintiffs were granted a second, 40 ft wide easement in 1994 over the D'Orio parcel (Assessor's Parcel No 106‐101‐01), but that this is in addition to their 60 ft wide easement granted in ...

Excerpt: ...as failed to sufficiently allege the existence of any statements or representations that were misleading or otherwise fraudulent, the trial court could reasonably require plaintiffs to set out or attach a representative selection of advertisements, to state the misrepresentations made by those advertisements, and to indicate the language or images upon which any implied misrepresentations are based. This is a method of pleading which has been end...

Excerpt: ...eference its Preliminary Statement and the general objections. Responding Party further objects to this Request on the ground that it invades theattorney‐client privilege and the attorney work product doctrine because the Answer in the NLRB proceeding was not verified and was based on incomplete, limited and/or inaccurate information available to counsel at the time of the Answer. Subject to and waiver of these objections, Responding Party resp...

Excerpt: ...tion of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., § 452.) (Chazen v. Centennial Bank (1998) 61 Cal.App.4th 532, 542 [71 Cal.Rptr.2d 462].) A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Id) As a general rule, in testing a pleading against a de...

Excerpt: ...produce evidence in defense of an exemplary damage claim; fairness demands that he receive adequate notice of the kind of conduct charged against him. The complaint must contain factual assertions supporting a conclusion petitioner acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041 [13 Cal.Rptr.2d 133].) Because Plaintiff has not pleaded oppression, fraud or malice with specificity, (see Complaint ¶...

Excerpt: ...laratory relief/injunction (3rd and 5th causes of action), writ of mandate (4th cause of action), and a claim under Govt. Code §54999.7. These causes of action are predicated on allegations that the City violated the substantive and procedural provisions of Proposition 218 by its Joint Pilot Program contract with SCWD. Although the complaint also refers to other unidentified governmental agencies, it can now be assumed that Plaintiffs are not ch...

Excerpt: ...ing interest that overcomes the right of public access to the records, namely, Cory Mayer's privacy rights, his contractual obligation of nondisclosure, and his right as a civil litigant to a fair hearing. (2) The overriding interest supports sealing the records. (3) A substantial probability exists that the overriding interest will be prejudiced if the records are not sealed, namely, the Settlement Agreement is confidential and contains financia...

Excerpt: ...ough it has already been appropriated to a public use. (Reply pg. 2:6‐22) However, as the City points out, CCP § 1241 was repealed in 1976. None of the statutes cited by the City as the new Eminent Domain law appear to unequivocally empower a city to condemn public utility property even though it has already been appropriated to a public use as CCP § 1241 did. (Reply pg. 2 fn 1) The Parties are requested to appear at the hearing to set a new ...

Excerpt: ... Petitioner in the second, untimely motion, Petitioner has failed to present a valid challenge to these costs, and the motion is denied. As the prevailing party the District is entitled to its costs as a matter of right, “except as otherwise expressly provided by statute”. CCP §1032(b). The court has no discretion to deviate from this rule where, as here, Respondent was the clear prevailing party. There is no statutory authority to consider ...

Excerpt: ...ce (9th c/a) as to Defendants Mendoncas, The Holcomb Corporation, and Kyla Holcomb‐Piramoon and for breach of duty to be honest and truthful (11th c/a) as to Defendants The Holcomb Corporation, and Kyla Holcomb‐Piramoon. The demurrer to the cause of action for cancellation of instrument (7th c/a) asserted against the Mendonca Defendants is sustained. The demurrer to the cause of action for fraud (5th C/A) asserted against Defendants Mendoncas...

Excerpt: ...tnut Sr., who suffers from advanced Parkinson's disease. They assert that, in the event that these motions are granted, there will be insufficient time to prepare the new probate case for trial, or to conduct the deposition of William Sr.. Based on the July 27, 2021 declaration of Aaron Mohammed counsel were then in discussions to arrange for a competency evaluation of William Chestnut Sr., and Mr. Mohammed committed to produce him for a depositi...

Excerpt: ...e a failure to comply ... and (2) the failure must be willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [51 Cal.Rptr.2d 311].) The duty to preserve documents is relatively clear. That duty extends to any documents or tangible things made by individuals "likely to have discoverable information that the disclosing party may use to support its claims or defenses." The duty also includes documents prepared for those individuals, to the ...

Excerpt: ...ormation to acquaint the other party with the nature of information desired, attempt to place the burden and cost of supplying information equally available to both solely upon the adversary, placing more burden upon the adversary than the value of the information warrants, etc.). Such improper methods of 'fishing' may be (and should be) controlled by the trial court under the powers granted to it by the statute." (Id at pp 224‐225.) Here, the ...

Excerpt: ...cted to unwarranted annoyance, oppression and expense by Tabatabai, who has served him with duplicative sets of Form Interrogatories. Mr. Lindow's declaration provides only his conclusion that the third set of From Interrogatories is “substantially similar” to the previous interrogatories. This is insufficient to demonstrate good cause for a protective order. ...

Excerpt: ...l Procedure section 1987.1 contains permissive, not mandatory, language regarding motions to quash. It states, "When a subpoena requires the . . . production of books, documents or other things . . . the court, upon motion . . . may make an order quashing the subpoena entirely...Discovery procedures are generally less onerous for strangers to the litigation. That is because they are less likely to be represented by counsel, familiar with the issu...

Excerpt: ...who was underaged, was subjected to hazing in order to obtain an officer position in the fraternity; that he was instructed to drink multiple shots of alcohol at the cross‐ over ceremony, and became visibly intoxicated; that he was then directed to attend, and was driven to a party to celebrate the initiation, which was located at a house at 511 Broadway, in which several fraternity members resided; that fraternity members continued to “ply�...

Excerpt: ....; and that Plaintiffs are therefore entitled to summary adjudication of their first and second causes of action for quiet title and declaratory relief. Plaintiff s have also presented evidence, through their own declarations, the deposition testimony of Defendants, and evidence of Defendants' posting of Civil Code section 1008 signage, that Defendants dispute Plaintiffs' right to use the gravel road, and intend to block this use. This entitles P...

Excerpt: ...U.S.Dist.LEXIS 124509, at *8‐9.) Turning to whether the Second Cause of Action for failure to accommodate in violation of FEHA states sufficient facts to constitute a cause of action, there are three elements to a failure to accommodate action: “(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed t...

Excerpt: ...required to prove assignment or ownership of loan documents in order to proceed with a foreclosure. Saterbak v JP Morgan Bank (2016) 245 Cal. App. 4th 808, 814. Regardless, the judicially noticeable documents demonstrate that the Deed of Trust securing the loan which is the subject of this action and foreclosure was validly assigned to Defendant Affinia. The Court is not persuaded by Plaintiffs' claim that they were never notified of the identity...

Excerpt: ... court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as ...

Excerpt: ...is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292 [109 P.2d 942].) A demurrer may properly be granted based on the failure to adequately plead an exhaustion of administrative remedies. A plaintiff must exhaust the administrative remedies available before resorting to...

Excerpt: ...go to the power of the court, has been recognized as being harsh, and it will not be adhered to where its application will result in an unjust decision.” (Di Genova v. State Board of Education (1962) 57 Cal.2d 167, 179 [18 Cal.Rptr. 369, 367 P.2d 865].) The order sustaining the demurrer to the Complaint stated, “The judicially noticeable documents indicate that the UPA has determined that that Defendant committed minor violations, which is no...

Excerpt: ... §§6:638‐639) Regarding Plaintiffs/Cross‐Defendants' concern that allowing the amendment would require postponement of trial because an arbitration would have to occur first (CA Civil Code §845) prejudicing Plaintiffs, (Opposition pg. 5), since both the Complaint and Cross‐Complaint pray for equitable relief, CA Civil Code §845 would not be applicable pursuant to Cal Code Civ Proc § 1141.13. Counsel are requested to appear at the heari...

Excerpt: ...he motion to strike is denied. Turning to the motion for an order that the attorney‐client privilege has been waived, Cal Evid Code § 954 Lawyer‐client privilege: Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by: (a) The...

Excerpt: ...0 days after the rendition of the judgment or the making of the order being appealed”. The oral pronouncement of the order in open court generally marks the beginning of the time to appeal, unless a statute requires a certain form of order, in which case the order is only effective when made in the statutory form. However, if the matter is taken under submission and the court issues a written order, which is both filed and served on the parties...

Excerpt: ...se.” ' Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. (Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163 [57 Cal.Rptr.3d 755].) No opposition having been filed and thus no prejudice having been shown, the unopposed motion for leave to amend the FAC and to file a Second Amended Complaint is granted. ...

Excerpt: ...sserts that Plaintiff's claims based on actions which occurred prior to 2020 are barred by the one year statute of limitations applicable to FEHA claims. Plaintiff's 1st through 3rd causes of action are based on actions alleged to have occurred both before and after 2020; and a demurrer does not lie to only a part of a cause of action (Weil & Brown, California Civil Procedure Before Trial, §7:42.2). Plaintiff's 4th and 5th causes of action are b...

Excerpt: ...he Labor Commissioner, uncertainty, and the discovery is a pattern of abuse. Ruling: Objections are overruled. AMH is ordered to produce a verified response with all responsive documents without objections. LAW AND MOTION TENTATIVE RULINGS DATE: NOVEMBER 16, 2021 TIME: 8:30 A.M. 2 RPD 2: All documents related to any and/or all of your interactions (of any kind in any form including communications) with Datson's wife related to Ms. Hoffman in any ...

Excerpt: ...er cases, abuse of discretion is established if the court determines that the findings are not supported by substantial evidence in the light of the whole record. In ruling on the petition for writ of mandate, the trial court's task was to determine, exercising its independent judgment, whether the hearing officer's decision was supported by the weight of the evidence. (McKinney v. Department of Motor Vehicles (1992) 5 Cal.App.4th 519, 523 [7 Cal...

Excerpt: ... Prayer for Relief) LAW AND MOTION TENTATIVE RULINGS DATE: NOVEMBER 10, 2021 TIME: 8:30 A.M. 2 Therefore, pecuniary compensation would afford adequate relief, moreover it would not be extremely difficult to ascertain the amount of compensation which would afford adequate relief.(If monetary damages afford adequate relief and are not extremely difficult to ascertain, an injunction cannot be granted. (Thayer Plymouth Center, Inc. v. Chrysler Motors...

Excerpt: ...) 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, or that there is a complete defense to the cause of action. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable is...

Excerpt: ...ney paid out or loaned at the defendant's specific request. The cases do not require such a request as an element of the claim. The principles permitting conclusory pleading of common count claims apply to “a common count for moneys paid, laid out, expended, loaned or advanced to and for the defendant by the plaintiff at the former's instance and request.” (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 809‐810 [263 Cal.Rptr.3d 344].) Her...

Excerpt: ...746].) Defendant moves for judgment on the pleadings on the grounds that the conflict between the Adult Use of Marijuana Act and the asset forfeiture statutes is such that there has been a repeal by implication of asset forfeiture laws as to all marijuana conduct...,the Act delineates the specific financial and asset forfeiture repercussions for unlicensed activity is strictly limited to civil penalties and forfeiture of the marijuana..., the Act...

Excerpt: ...ere was a prejudicial abuse of discretion in that the agency has not proceeded in a manner required by law (Pub. Resources Code, § 21168.5, Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426.). The documents which are the subject of the County's motion to augment demonstrate that on 8/24/21 the County Zoning Board conducted a public hearing re: the formation of an Assessment District for the ...

Excerpt: ...se of action cannot be separately established, even if that element is separately pleaded. (p) For purposes of motions for summary judgment and summary adjudication: (2) A defendant or cross‐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, or that there is a complete defense to the cau...

Excerpt: ... to the subject property before RMF brokered the loan between Oliver Seville and SDC, and she was therefore not a party to the loan transaction; and (2) she has failed to allege facts to support a duty under Biakanja. Plaintiff's assertion that she was the “putative” borrower from SDC and an intended beneficiary of the loan transaction as a result of the Court's nunc pro tunc order is unavailing. That order was made long after the loan transa...

Excerpt: ... BRAD DATSON The motion is denied. On 10/16/19 Plaintiff's counsel personally served Hoffmann's first set of requests for admissions on Brad Datson which consisted of 23 RFA's. (Ex. A to Shearer Dec.) The responses were due served within 30 days after service of the RFA's, i.e. on or before 11/15/19. (CCP § 2033.250) On 11/27/19 verified responses were served without objection. (12 days late). (Shearer Dec. filed 3/30/21 ¶ 2) Cal Code Civ Proc ...

Excerpt: ...ment of a cause of action for breach of fiduciary duty. (see FAC pp. 2:12‐3:1, 3:2‐8, 3:23‐ 25) Turning to the Second cause of action for negligence, Plaintiff has pleaded each element of the cause of action, (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082; FAC ¶¶ 7,13,14) therefore the demurrer is overruled. The demurrer to the Third cause of action for gross negligence is overruled. Plaintiff has pleaded each element...

Excerpt: ...onable 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 less ...

Excerpt: ... 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. F...

Excerpt: ... of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. Unless the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion. (Le Francois v. Goel (2005...

Excerpt: ...court is reinvested with jurisdiction of the cause, but only such jurisdiction as is defined by the terms of the remittitur. The trial court is empowered to act only in accordance with the direction of the reviewing court; action which does not conform to those directions is void. (Hampton v. Superior Court of Los Angeles County (1952) 38 Cal.2d 652, 655 [242 P.2d 1].) Here, the 6DCA stated in the Remittitur, “Subdivision (b) of section 389 giv...

Excerpt: ...onable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193‐ 1194.) Defendants have met their 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 by showing they were holder of the note at the time of the Trustee's ...

Excerpt: ...leave to amend. The demurrer to the Third cause of action for Intimidation is sustained with leave to amend as the allegations are vague, uncertain, and unintelligible. Plaintiff's allegations do not state sufficient facts to constitute a cause of action for retaliation (Civil Code §1 942.5), therefore the demurrer to the Fourth cause of action is sustained with leave to amend. The allegations the Fifth cause of action for Negligent Breach of Co...

Excerpt: ...e that a confidential relationship existed. (Id at 1083.) Here, a signed retainer Agreement governed Hansen's involvement in the 2013 Action. The Agreement explicitly describes the purpose and scope of Mr. Hansen's engagement in the 2013 Action. Attorney Kevin Cody retained Mr. Hansen as an expert witness on behalf his clients Richard Bartel and Ellen Stok. Hansen was engaged to “perform services as an expert consultant and possible witness” ...

Excerpt: ...s that in order to serve process in the PRC, as per the US Supreme Court, service must be pursuant to the Hague Service Convention. (https://www.legallanguage.com/international‐ litigation/service‐of‐process/countries/China/ pg.1) As to the exception that the Hague Convention shall not apply where the address of the person to be served with the document is not known, the only reasonable construction of the “address of the person to be ser...

Excerpt: ...bt may give rise to a LAW AND MOTION TENTATIVE RULINGS DATE: OCTOBER 5, 2021 TIME: 8:30 A.M. 3 claim of intrusion upon seclusion.(Masuda v. Citibank, N.A. (N.D.Cal. 2014) 38 F. Supp. 3d 1130, 1134.) Plaintiff has alleged sufficient facts to constitute a cause of action, therefore the demurrer is overruled. The demurrer to the Fourth Cause of Action for violation of the Telephone Consumer Protection Act (47 USCS § 227) is overruled. Plaintiff all...