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...

Excerpt: ...acy to commit trespass or conversion, (Opposition pg3:27), except in limited circumstances which do not apply here, a party to a contract cannot recover damages in tort for breach of contract... The Court's job is to determine whether the essence of the claim is fundamentally based on conduct that sounds in contract or in tort. (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 181 [8 Cal.Rptr.3d 840].) The es...

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: ...ges 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 consequences. Taylor v. Superior Court of Los Angeles County (1979)24 Cal. 3d 890, 895‐896.Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act fro...

Excerpt: ...1999) 75 Cal. App. 4th 486, 496; Valbona v. Springer (1996) 43 Cal.App.4th 1525. Willfulness does not require a wrongful intention. A simple lack of diligence may be deemed willful where the party knew there was an obligation, had the ability to comply, and failed to do so. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 787. The party on whom the discovery was sought has the burden to show that the failure was not willful. Id. at 788. On March 2, 20...

Excerpt: ...ll and opening of the private patio areas to unfettered public access and the Rio Del Mar Flats Stormwater drainage project, in a full EIR; and (c) to comply with the Coastal Act's requirement that the County obtain a CDP in a noticed hearing for its opening of a new public walkway and installation of appurtenant structures. The threshold issue is whether the project was adequately described in the County's Notice of Exemption. For the reasons se...

Excerpt: ... supports sealing the records. (3) A substantial probability exists that the overriding interest will be prejudiced if the records are 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: During discovery, Defendant produced pursuant to a signed and stipulated protective order (filed 5/4/21) unredacted Exhibits 3�...

Excerpt: ... finds that none of these ground have merit, and the motion is therefore denied. 1. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial [§657(4)]: As “new evidence” Petitioner asserts that “the trial court failed to examine the fact that the Sixth District Court of Appeal, the higher court where she filed her action in the first L...

Excerpt: ... is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement that party bears the burden of producing evidence and proving by a preponderance of the evidence any fact necessary to that defense. Rosenthal v Great Western...

Excerpt: ...quasi‐specific performance of contract to make will/trust; (7th c/a) declaratory relief; (8th c/a) quiet title; (9th c/a) slander of title; (11th c/a) reclamation of decedent's property; and (12th c/a) false promise Defendants assert that Plaintiff's claims all arise from the Warranty Deed which the decedent, Don Harris Lee, executed on October 29, 2012 and recorded on November 5, 2012; that as the transferee Plaintiff had knowledge of the Warr...

Excerpt: ... manufacturer furnishing finished products, materials, or articles of merchandise who does not install or contract for the installation of those items) the O'Bannon declaration says he delivered various items to the jobsite. (O'Bannon Dec. filed 7/16/21 pg.1:26) In addition, the contract is for building the cabinets, not installing. It says on the bottom of the contract, “No install quoted”. (Ex 1 to complaint) Because Plaintiff did not insta...

Excerpt: ...ion for negligence, for failure to file a timely government tort claim; and is denied as to the causes of action for equitable indemnity, apportionment of fault and declaratory relief. Summary judgment/adjudication as to Plaintiffs' complaint The City moves for summary judgment/adjudication as to Plaintiffs' complaint on the following grounds: • Inverse condemnation: (1) Plaintiffs cannot establish the “public project” element of this claim...

Excerpt: ...il Procedure Before Trial§ 8:2235) Plaintiff is ordered to provide the discovery responses subject of this Court's orders filed 3/16/21 (RFP's, form and special interrogatories) within 15 days of service of this order. In addition, further proceedings by Plaintiff are hereby stayed until the orders for discovery filed 3/16/21 are obeyed. Defendants are awarded further monetary sanctions in the amount of 8 hours x $260.00/hour =$2,080.00 against ...

Excerpt: ...onditional acceptance for value for proof of claim upon DCSS services contract for determination of meeting of the minds, fraud of the contract and/or unconscionable contract and/or agreement for commercial discharge”, “Notice of Fault [sic] and opportunity to cure and contest acceptance”, “Affidavit of notice of default”, and “Certificate of non‐response” are not contracts. “All that is required of a plaintiff, as a matter of p...

Excerpt: ... allegations do not suffice." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. The pleading should be sufficient '"to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud." ' " (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216‐217). Thus, a plaintiff must plead facts which show how, when, where, to whom, and by what means ...

Excerpt: ...d 95].) The findings of the adjudicatory agency are presumed to have been supported by substantial evidence. The petitioner in an administrative mandamus proceeding bears the burden of establishing that the agency's decision was invalid and should be set aside...The reviewing court must resolve reasonable doubts in favor of the administrative findings and decision." "[We] may reverse an agency's decision only if, based on the evidence before the ...

Excerpt: ...of the CSA.. Amendment No. 2 to the 2005 LRDP has not been ordered set aside or rescinded by the University. Plaintiffs' claim based on the approval of Amendment No. 2 therefore presents a live and justiciable controversy. The motion to strike portions of the Second Amended Complaint is granted in part, and denied in part, as follows: 1. The motion to strike Plaintiffs' claims challenging the University's 2019 approvals of the SHW Project (the ap...

Excerpt: ...pital Dist. (1992) 2 Cal.4th 962, 966‐967.) No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on a demurrer. (Weil and Brown CA Practice Guide (TRG 2021) Civil Procedure Before Trial § 7:44) Turning to whether the inconsistent allegations of the SAC should be disregarded under the sham pleading doctrine, Plaintiff may plead alternative bases for recovery (4 Witkin CA Procedure (5th...

Excerpt: ...t acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion. The word “interferes” as used in the Bane Act means “violates.” The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, intimidation or coercion”), tried to or did prevent the plaintiff from doing somet...

Excerpt: ... in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced'". The exception promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right. (Green v. Obledo (1981) 29 Cal.3d 126, 144.) Petitioners has the “public interest” of all citizens of Santa Cruz County t...

Excerpt: ... here, because both actions are proceedings in personam. Gregg v Sup. Ct. (1987) 194 Cal. App. 3d 134,137. The court finds that the discretionary factors which the court is to consider do not “weigh strongly” in favor of a stay, as required by Farmland Irr. Co. v Dopplmaier (1957) 48 Cal. 2d 366. There is at least some question as to whether this action and the federal court case, Police Retirement System of St. Louis v Granite Construction I...

Excerpt: ...rden, the burden shifts to the plaintiff 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 shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. LAW AND MOTION...

Excerpt: ...s have been alleged here to constitute a cause of action against Jakob Laggner, Nicole Laggner, and Reefside Health Center. Turning to the Second cause of action for breach of contract, the reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded (Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 966‐967) The Amended Option Agreement is between ICG, its subs...

Excerpt: ...spital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713.) Malice is defined as “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.” Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. The adjective “...

Excerpt: ...2, 966‐967) As a general rule, in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children's Television, Inc. v. General Food...

Excerpt: ...tificates of compliance. [Defendant's RFJN Exhibits B,C, and D]. Pursuant to Health & Safety Code §25404.1.2(a)(2) this creates a rebuttable presumption that the violations were classified as “minor”. [“In any proceeding concerning an enforcement action taken pursuant to this section, there shall be a rebuttable presumption upholding the determination made by the UPA regarding whether the violation is a minor violation.”] The complaint f...

Excerpt: ...es of action. The City asserts that it is not seeking reconsideration of that ruling, but includes these causes of action in its demurrer only to preserve appeal rights. The prior ruling therefore stands. II. The City's general demurrer to the new causes of action The Third Amended Complaint asserts four new causes of action, entitled Taxpayer Suit/Citizens Suit/Public Interest Suit/Injunction” (3 rd c/a); Declaratory relief cause of action (4t...

Excerpt: ...erification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant”. When Plaintiff appeared at the May 25 hearing on that motion the Court ordered her to provide code complaint verifications by June 4, 2021. Plaintiff was served with a Notice of Entry of the written Order on June 11, 2021, after the deadline for providing the verifications had expired. [T]wo facts are a...

Excerpt: ...ourt further finds that Petitioner's declaration fails to comply with CRC 3.1324(b), as it does not state which three new causes of action have been added, or their effect; does not fully LAW AND MOTION TENTATIVE RULINGS DATE: July 27, 2020 TIME: 8:30 A.M. 2 state why the addition of 169 paragraphs are necessary; and does not state when the facts giving rise to the SAP were discovered, or why Petitioner did not file her motion earlier. Finally, t...

Excerpt: ...ween Watsonville Cadillac Buick GMC and Defendant. Plaintiff has further established that the RISC was assigned to Plaintiff. Parties can agree to delegate to the arbitrator the decision on threshold or “gateway” issues of the validity, enforceability and scope of an arbitration agreement, as long as two conditions are met: (1) the language of the delegation is “clear and unmistakable”; and (2) it is not subject to revocation under standa...

Excerpt: ...of the Statement of Decision in Case No 19CV03692 confirms that Plaintiff's claim for injunctive relief in that action was litigated through trial, and that Plaintiff's post‐trial attempt to amend the complaint to remove and/or strike the claim for injunctive relief was denied. A second action for damages is barred under the doctrine of res judicata where the first suit did not seek purely declaratory relief, and the second suit was based on th...

Excerpt: ...at they do not have the ability to satisfy the bond requirement, (Barragan Dec. filed 6/9/21¶ 18), the Court will use its equitable powers and set the bond amount at one half the amount of the judgment. $908,097.67 ÷2= $454,048.83. Defendants may apply (or may be credited for) the $130,520.52 in funds levied in Defendants' Chase Bank Accounts pursuant to Plaintiff Valley Fresh Produce Inc.'s Writ of Execution. Therefore, in addition to the $130...

Excerpt: ...tories which request private financial information from Mr. Tabatabai which is unrelated to his interest in Enabledware and/or the value of that interest”. The Court's tentative decision further stated that it would only entertain a further motion to compel a response to the interrogatories “ upon (1) a showing that the parties have met and conferred in good faith; and (2) the identification of the specific interrogatories which remain in dis...

Excerpt: ...nding shall give the action or proceeding preference over all other civil actions, in the matter of setting the action or proceeding for hearing or trial, and in hearing or trying the action or proceeding, so that the action or proceeding shall be quickly heard and determined. CEQA's purpose to ensure extremely prompt resolution of lawsuits claiming noncompliance with the Act is evidenced throughout the statute's procedural scheme. Such suits hav...

Excerpt: ...um on November 18, 2020. Petitioner filed this action nearly four months later, on March 8, 2021. A challenge to an action under CEQA must be brought within 30 days of the date a NOD is filed, or in this case by December 18, 2020. Pub. Res. Code §21167(e.). Respondent therefore demurrers to the Petition on the basis that it is time barred. The demurrer is sustained. CEQA imposes intentionally short and strict statues of limitations to ensure pro...

Excerpt: ...aused by the willful or negligent act of lessor or lessor's agents or employees. (SVP X‐C filed 4/22/20 ¶ 12 emphasis added) The FAC sets forth one cause of action on behalf of plaintiff Judy Feldman, premises liability and one cause of action on behalf of Scott Feldman, loss of consortium. (FAC filed 4/9/19 caption, ¶ 10, pp. 4‐6) The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, a...

Excerpt: ...ied World National Assurance Co. (2017) 18 Cal.App.5th 881, 885.) Defendant does not dispute that he owes a personal debt of approximately $250,174.81. (Opposition p.2:6) In answers to special interrogatories, Blume Distillation conceded it owed Plaintiff $195,000.00; Whiskey Hill Farms owed $45,000; Blume owed $7,895.00. (Ex. M‐1 attached to Reply and Ex. A to Ex. M‐1) Re: the $100,000.00 “invested” in Blume Distillation, Defendant does ...

Excerpt: ...y to contracts generally apply to settlement contracts. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) Cal Civ Code § 1688 Rescission extinguishes contract A contract is extinguished by its rescission. Cal Civ Code § 1689 When party to a contract may rescind (b) A party to a contract may rescind the contract in the following cases: (2) If the consideration for the obligation of the rescinding party fails, in whole or in...

Excerpt: ...sions of the Hearing Committee when evidence is being received. (AR 1; see also Petitioner's Memo at 4:17‐20.) The P&T Hearing Committee requested guidance from UCJR, a systemwide committee tasked with interpreting the Code of the Academic Senate and issuing interpretive guidance and rulings (AR 1‐2 and 18.) which stated in an email dated 4/28/20: “You put to us a question about the need for in‐person proceedings in the context of hearing...

Excerpt: ... and was denied or deemed denied pursuant to Section 911.6 and that one or more of the following is applicable: (1) The failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4. 'A petitioner must show more than that he did not discover a fact...

Excerpt: ... evidence any fact necessary to its defense.” LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 21, 2021 TIME: 8:30 A.M. 4 California law governs the determination as to whether an agreement was reached “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is rai...

Excerpt: ...h in connection with a public issue.” 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 that the claim is both legally sufficient, and that it is supported by a prima facie showing of facts to LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 18, 2021 TIME: 8:30 A.M. 2 support a favorable judgment. Weil & Brown, California Proc...

Excerpt: ...at the Legislature has suggested that, where possible, the courts should impose partial limitations rather than outright denial of discovery. The privacy interests of fellow employees elsewhere in California could have been addressed by conditioning discovery on a Belaire‐West notice. (Williams v. Superior Court (2017) 3 Cal.5th 531, 559) Regarding the motion to compel further response to Special Interrogatory Nos. 4 and 5, the Court finds that...

Excerpt: ...t any time before or after commencement of trial, in the furtherance of justice”. CCP §573. However, an amendment after the conclusion of the trial, with the evidence in and arguments completed, is permissible in only three situations: (1) to conform to proof; (2) to correct a mistake or imperfection in the pleading; and (3) to bring in new issues, necessitating a reopening of the case for further evidence. Witkin, 5 Cal. Procedure, “Pleadin...

Excerpt: ... an attachment order “shall be set forth with particularity. Except where matters are specifically permitted by this title to be shown by information and belief, each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated therein”. CCP §482.040. Conclusory or generalized statements in a declaration in support of an application for a writ of attachment “do not suffice”, and ...

Excerpt: ...do not have the ability to satisfy the bond requirement, (Barragan Dec. filed 6/9/21¶ 18), the Court will use its equitable powers and set the bond amount at one half the amount of the judgment. $908,097.67 ÷2= $454,048.83. Defendants may apply (or may be credited for) the $130,520.52 in funds levied in Defendants' Chase Bank Accounts pursuant to Plaintiff Valley Fresh Produce Inc.'s Writ of Execution. Therefore, in addition to the $130,520.52,...

Excerpt: ...eir duties with respect to the care of Charles McDermott's Foley catheter while he was in their care and custody, and in failing to properly train and supervise their staff; and that this neglect was the cause of Mr. McDermott's death. Defendant Healthy Living moves for summary judgment/adjudication on the basis that its nurses met the standard of care in all respects, including the care of Charles' catheter; and that this demonstrates that Defen...

Excerpt: ... CCP § 340.5), she must allege (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage" (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638) and the allegations must be pled with specificity, “In California, fraud must be pled specifically; general and conclusory allegations do not s...

Excerpt: ...nt to arbitrate between the parties (The trial court is to decide two “gateway issues” of arbitrability: (1) whether there is an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960.), the Court finds that Defendants have met their burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. He...

Excerpt: ...ding a party's admissions or concessions which cannot reasonably be controverted. (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989 [94 Cal.Rptr.2d 643].) Here, the following matters have been admitted and considered by the Court: 1. Guadalupe Fuentes had a Shop Your Way Mastercard branded credit account number 8419 issued by CITIBANK, N.A. 2. Guadalupe Fuentes received periodic statements regarding the Shop Your Way Mastercard brand...

Excerpt: ... the party fails to obey. (E.g., Code Civ. Proc., former § 2023.) (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799 [60 Cal.Rptr.3d 22].) Here, Shane Kephart has deliberately disregarded the Court's prior discovery orders dated 12/11/20; no lesser alternatives would remedy the situation; the fault lies with the client and not the attorney (Kephart is unrepresented); and a contempt order was entered against Kephart on 3/22/21. Shane Kephart'...

Excerpt: ...ause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility. Here, the Complaint alleges “Defendant's conduct constitutes an unreasonable change in, and increase of, Defendant's use of the Easement in a manner that imposes ...

Excerpt: ...work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (b) ...

Excerpt: ...of CANRA is defined in Pen. Code 11165.6, which lists several forms of child abuse and neglect with references to other Penal Code sections for their more specific definition. As is relevant here, §11165.6 refers to “the willful harming or injuring of a child or the endangering of the person or health of a child, as defined in Section 11165.3”. Section §11165.3 defines the “willful harming or injuring of a child or the endangering of the ...

Excerpt: ...ecial Motion to Strike, and will not be considered in ruling on the motion. A plaintiff may not seek to subvert or avoid a ruling on an anti‐SLAPP motion by amending the challenged complaint in response to the motion, as Plaintiff has done here. Salma v Capon (2008) 161 Cal. App. 4th 1275. Requiring the trial court to analyze the amended claims under CCP §425.16 simply because the claims were amended before the court ruled on the first motion ...

Excerpt: ...��water well, water tank and supporting structures”. LAW AND MOTION TENTATIVE RULINGS DATE: JUNE 3, 2021 TIME: 8:30 A.M. 5 The Court finds that Plaintiffs have a probability of prevailing on their claim to a deeded easement to the existing water well and its supporting structures, which includes the right to access the easement to make repairs; and that the balancing of the harms favors Plaintiffs on that claim. The Court finds that the easemen...

Excerpt: ...s First Amended Cross‐Complaint herein (“Liability Trial”) in order to resolve the issue of whether the 37 Foot Walk is a public space or plaintiffs' private patio area is granted. Plaintiffs' motion to set hearing date and briefing schedule re: administrative writ is granted in part and denied in part. The hearing date and briefing schedule re: administrative writs will be set immediately upon conclusion of the Liability Trial. Plaintiffs ...

Excerpt: ...mption in favor of private arbitration, an arbitral award should ordinarily stand immune from judicial scrutiny."(City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 334.) Here, Respondent has not satisfied his burden of showing that he has been substantially prejudiced by refusal of the arbitrator to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrator to hear evidence ...

Excerpt: ...mption in favor of private arbitration, an arbitral award should ordinarily stand immune from judicial scrutiny."(City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 334.) Here, Respondent has not satisfied his burden of showing that he has been substantially prejudiced by refusal of the arbitrator to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrator to hear evidence ...

Excerpt: ... of conduct as a defense to the action when brought.”(Lantzy v. Centex Homes,(2003) 31 Cal. 4th 363, 383) “A valid claim of equitable estoppel consists of the following elements: (a) a representation or concealment of material facts (b) made with knowledge, actual or virtual, of the facts (c) to a party ignorant, actually and permissibly, of the truth (d) with the intention, actual or virtual, that the ignorant party act on it, and (e) that p...

Excerpt: ...Shahram Tabatabai is granted, and Robert Lindow's First Amended Cross‐Complaint is stricken in its entirely . Tabatabai's demurrer to Lindow's First Amended Cross‐Complaint is therefore moot, as is his Motion to for Leave to Conduct Discovery Limited to Lindow's Opposition to Tabatabai's Anti‐SLAPP Motion. Shahram Tabatabai's Motion to Compel Lindow's Responses to Form Interrogatories, Set Two, is granted, on the grounds discussed below. Ro...

Excerpt: ... for a continuance. Plaintiffs have been prevented from completing depositions and other discovery in preparation for trial. (Pltf's Ex parte App.pg.2:10). On 5/12/21, Defendant's cardiologist advised Mr. Schwartz to take two‐months rest from the practice of law. (to Ex. 2 to Dec. Donald Schwartz in support of motion to continue trial date which is Ex. B Defendants' Ex parte Appl.) (Cal Rules of Court, Rule 3.1332(c)(2) & (3)) Based upon the pl...

Excerpt: ...gueroa Dec. Ex.'s 7‐ 12) Although Plaintiff may not have properly served the discovery responses and the wording of the “verification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant. The purpose of discovery is to bring out information which will lead to a just decision on the merits. The sanction of peremptory dismissal, without consideration of the merits, is ...

Excerpt: ...dings were based on substantial evidence.”'” This requires the reviewing court to consider all relevant evidence in the administrative record and view that evidence in the light most favorable to the agency's findings, drawing all inferences in support of those findings. The reviewing court does not substitute its own findings and inferences for that of the agency. “Only if no reasonable person could reach the conclusion reached by the admi...

Excerpt: ... filed LAW AND MOTION TENTATIVE RULINGS DATE: May 25, 2020 TIME: 8:30 A.M. 9 until January 8, 2021, well beyond this 60‐day period. The Court is not persuaded by Defendants' assertion that they could not have timely filed these motions while the action was venued in Los Angeles Superior Court, due to the filing of their motion for change of venue in that court and Plaintiffs' motion for reconsideration of the order for transfer of the case to S...

Excerpt: ... acted beyond its jurisdiction. Abuse of discretion is established if the respondent has not proceeded in a manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence. Under the substantial evidence test, the DRE's findings are presumed to be supported by the administrative record and it is Petitioner's burden to show that they are not. Donley v Davi (2009) 180 Cal. App. 4th 4...

Excerpt: ...ment. Plaintiff is to file any amended complaint within 20 days of this ruling. Defendant's RFJN The court grants Defendant's request for judicial notice of the following: • The unlawful detainer judgment against Plaintiff and in favor of Defendant; • The Bankruptcy Court's order in Plaintiff's bankruptcy action denying her motion to amend an order lifting the automatic stay; • Trustee's Deed showing Defendant as the lawful owner of the sub...

Excerpt: ...on by not proceeding as required by law, i.e. by not making any actual findings. LoForti states he “reviewed the application with Deputy County Administrative Officer Melodye Serino, the cannabis Licensing Official under Chapter 7.130 who LoForti reports to. Serino agreed with and adopted LoForti's finding under Section 7.130.l 10(E)(3) that the general public benefit would outweigh concerns regarding intensity of use, land use compatibility, a...

Excerpt: ...n default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.” Under subsection (b)(1), the consumer may then “unilaterally elect” to “withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction”. Defendants do not dispute that they are the party who drafted the arbitration agreement at issue, that the arbitration agre...

Excerpt: ...ing party to submit‐‐in place of a separate statement‐‐a concise outline of the discovery request and each response in dispute”, Plaintiff has not requested nor has the court allowed Plaintiff to submit a concise outline in lieu of a Separate Statement. Plaintiff asserts that these interrogatories are an attempt to understand Defendant's theory of the case. However, the interrogatories do not ask for facts supporting Defendants' theory,...

Excerpt: ... bringing an action under section 709, and allow the court to consider the merits of the action without first determining whether the petitioning party did in fact have a legal right to vote.” (Haah v. Kim (2009) 175 Cal.App.4th 45, 53‐55) On demurrer, the complaint is to be given a reasonable interpretation, admitting the truth of all material facts properly pleaded. (Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 967) Plaintiffs h...

Excerpt: ...ewing his request pursuant to CA Penal Code § 18420 ...

Excerpt: ... action, CAIC must establish the absence of any potential for coverage in order to prevail on its motion. Voyager, who is standing in for the insured, need only show that the underlying claim may fall within policy coverage. “Facts merely tending to show that the claim is not covered, or may not be covered, but are insufficient to eliminate the possibility that resultant damages (or the nature of the action) will fall within the scope of covera...

Excerpt: ... Berkeley (1987) 195 Cal.App.3d 578, 583, Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497) The motion to strike the prayer for punitive damages is granted. First, the County is immune from punitive damages: A public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant. (Gov. Code, § 818.) More important here, the 6D...

Excerpt: ...ince the date of Mr. Dutra's death on March 29, 2016 to March 29, 2021, in the amount of $1,469,857.06 The Court finds that Well‐Pict has met its burden of proof in establishing that James R. Dutra is the debtor on the account. The Court directs the parties to appear at the hearing prepared to discuss whether the Declarations of George Schaff and Joan Taylor, which authenticate the book accounts, are sufficient to meet Well‐Pict's burden of p...

Excerpt: ...one or more material facts exists as to the cause of action or a defense thereto. The defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. CRC 3.1350 provides that the Separate Statement of Material Facts should include “onl...

Excerpt: ...ese alleged changed circumstances (no evidence of any proposals or offers he has made, or when they occurred). Instead he provides only the vague statement that “Plaintiffs tried to exercise the option after the lease expired last year. We have continued to negotiate a price for my interest without any success. Not only have we used “best efforts' but we have used more than “best efforts”.”. (J. McEnery decl., ¶7.) Due to Defendant's f...

Excerpt: ... Question No. 7 is also a contention question, therefore the objection is sustained. If the deposing party “wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. The party answering the interrogatory may then, with aid of counsel, apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions. "[t]aking th...

Excerpt: ...ir burden of making a threshold prima facie showing that Mr. Lindow's cross‐complaint arises from protected activity. The allegations of the crosscomplaint demonstrate that the gravamen of the cross‐complaint is Mr. Maleksalehi's filing of his complaint against other parties (the Tabatabais), which Lindow claims caused Tabatabai to file a cross‐complaint against Lindow. The first c/a for abuse of process alleges that “pursuant to the goal...

Excerpt: ...rvene in an action if the trustee, legal owner, refuses to defend his title or claims adverse to the beneficiary. (Kobernick v. Shaw (1977) 70 Cal.App.3d 914, 919) According to Plaintiff's opposition, Jeanne Reveal has been evading service of process and to date has not been defending the claims. Therefore, her interest relating to the property or transaction is not being adequately represented by one or more of the existing parties. (CA CCP § 3...

Excerpt: ... 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 completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (p)(2) A defendant has met his or her burden of showing that a cau...

Excerpt: ...ved on 1/21/21 are in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (see L. Kane Declaration filed 1/29/21 Ex. A) In addition, based on the declaration of Joseph De Hope, the Court finds that Keenan's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. “[T]he trial court may relieve a party from the consequences of its failure to serve a timely response i...

Excerpt: ... constitute a cause of action. The failure of a proposed amendment to state facts sufficient to constitute a cause of action or defense may support an order denying a motion to amend. (Cal. Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280) The employer‐employee relationship, such as that between Plaintiff and Defendant Lay here, is not covered by the Act, which is confined to discriminations against recipients of the "bus...

Excerpt: ...derivatives for the purpose of injecting or infusing is a rendition of a service, not a sale. H & S §1606. Consequently, companies cannot be held strictly liable in tort for personal injuries which result from these activities. Plaintiffs have pled that “the stem cells that were manufactured from the amniotic fluid is not a “blood component” or “blood derivative” because it was not a product produced from whole blood”. TAC ¶20. Defe...

Excerpt: ...tential injury), and how to use the product to reduce or avoid the risks, to the extent that information is known to the manufacturer”. Buckner v Milwaukee Electric Tool Co.(2013)222 Cal. App 4th 522, 536. The “learned intermediary” defense does not appear on the face of the TAC, which alleges that “Dr. Lester reasonably believed that the intravenous administration of the stem cells to Mr. Reis was appropriate and pursuant to the FDA guid...

Excerpt: ...a Dec. Ex.'s 7‐ 12) Although Plaintiffs may not have properly served the discovery responses and the wording of the “verification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant. The purpose of discovery is to bring out information which will lead to a just decision on the merits. The sanction of peremptory dismissal, without consideration of the merits, is fund...

Excerpt: ...putation). (CA Practice Guide Civil Procedure Before Trial (TRG 2020) 6:158) The Second cause of action is also sustained without leave to amend. In order to justify an award of punitive damages on this basis, [conscious disregard of the safety of others] 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 consequences. (Taylo...

Excerpt: ...ecause auditors are statutorily and strictly liable under §11 for any misstatements in the financial statements which they audited and certified, unless they can demonstrate due diligence at the summary judgment stage. Under post‐Omnicare authority PWC is not strictly liable for the misstatements in Granite's financial statements.. In Johnson v. CBD Energy, Ltd., 2016 U.S. Dist. LEXIS 87174, the court expressly rejected the same “strict liab...

Excerpt: ...t to four large joint venture projects. The Court previously sustained the demurrer to the original complaint and granted Plaintiff leave to amend to allege facts demonstrating that circumstances known to Defendants at the time they made the representation of “reasonably possible additional costs” made this a misrepresentation of an of existing fact at the time it was made; to allege what LAW AND MOTION TENTATIVE RULINGS DATE: APRIL 6, 2021 T...

Excerpt: ...na Theater, (1981) 118 Cal. App. 3d 863, 870.) It appears that were the Court to grant either Party's request for an injunction/ modified injunction, that both parties would suffer great injury. In order to preserve the status quo until there has been a final determination of the merits of the action, the Court requests counsel to address at the hearing whether it would be appropriate to appoint a receiver to sell the car and take possession of t...

Excerpt: ...tion, have given rise to a cause of action against that employee or his personal representative. Here, Plaintiff alleges that Newman was acting outside the course and scope of his employment which exempts him from the requirement of complying with the Government Claims Act. As to the argument that the allegation Newman was acting outside the course and scope of his employment was a conclusion of law unsupported by factual allegations, the demurre...

Excerpt: ...1.) The doctrine "precludes recovery for 'purely economic loss due to disappointed expectations,' unless the plaintiff 'can demonstrate harm above and beyond a broken contractual promise. (Martinez v. Welk Group, Inc. (S.D.Cal. 2012) 907 F.Supp.2d 1123, 1134.) Here, the duty that gives rise to tort liability is dependent on the contract. The Lease states at Clause 11, “pursuant to the Lease, Tenants will keep the premises clean, sanitary, and i...

Excerpt: ...e attorney. (Id at pp 178‐179) Therefore the work product privilege does not apply. The motion to compel is also granted as to form interrogatory 13.2. Interrogatory 13.2 merely asks for information re: whether a report was made and if so by whom, therefore disclosure is not protected by the attorney client or work product privileges. (Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68‐ 69.) Plaintiff is awarded sanctions against Defendan...

Excerpt: ... by the court, no demurrer having been sustained or being then pending. (CCP 586(a)(3). (6 Witkin CA Procedure (5th Ed.2008) PWT §§143,147) However, CCP § 587 requires that an application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant's attorney of record or, if none, to the defendant at his o...

Excerpt: ...between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits. The rule is established and enforced not "so much to protect the rights of parties as to protect the rights of Courts of coordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice." (Plant Insulation Co. v. Fibreboard Corp. (1...

Excerpt: ...3, *31.) The doctrine "precludes recovery for 'purely economic loss due to disappointed expectations,' unless the plaintiff 'can demonstrate harm above and beyond a broken contractual promise. (Martinez v. Welk Group, Inc. (S.D.Cal. 2012) 907 F.Supp.2d 1123, 1134.) Here, the duty that gives rise to tort liability is dependent on the contract. The Lease states at Clause 11, “pursuant to the Lease, Tenants will keep the premises clean, sanitary, ...

Excerpt: ...An award of attorney's fees is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. CCP §916. In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140. Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs. Attorney fees are perm...

Excerpt: ...e based on CCP § 394(a) is inapplicable. In addition, AMH has failed to show actual prejudice to the moving party or that a change of venue would promote justice or convenience of witnesses, therefore the motion is denied based on CCP § 397. Lastly, AMH has failed to show circumstances of the likelihood, or the appearance of bias and the motion is denied on this ground. Sanctions Sanctions are not awarded. Each side will reserve the right to cl...