Excerpt: ...l distress is overruled. The motion to strike the allegations and prayer for attorney's fees is granted. Elder Abuse (2d c/a) The court finds that Plaintiff has failed to state a cause of action for elder abuse under a theory of either financial or physical elder abuse. W&I Code §15610.30 defines financial elder abuse as occurring when a person “takes, secretes, appropriates, obtains of retains real or personal property of an elder or dependen...

Excerpt: ...ect provides for the construction of oncampus housing for a number of students that exceeds the CSA's enrollment cap; and (2) that Defendants have breached §5.1 of the CSA by proceeding with the planning process for the 2020 LRDP, including the release of a Draft LRDP and a Final Proposed Land Use Map which locates all new student housing on campus, without first conducting a comprehensive analysis of potentially feasible alternative locations t...

Excerpt: ...tances, or law. DEMURRER The unopposed special demurrer for uncertainty and general demurer to the 2d, 3 rd, 4th and 5th causes of action asserted in the Second Amended Complaint is sustained, without leave to amend. On its own motion the court strikes the 1st, 6th, 7th and 8th causes of action as constituting improper matter. Discussion The court previously sustained a special demurrer to the First Amended Complaint for uncertainty, and also sus...

Excerpt: ...tive damages from the prayer of the SAC is granted. The balance of the motion is moot in light of the sustaining of the demurrer to the Third cause of action ...

Excerpt: ...o defend their insureds does not make the parties." .Southern Cal. Edison Co, v, State Farm Mut. Auto, Ins. Co., (1969) 271 Cal. App. 2d 744 749. Plaintiff's cause of action is therefore not properly brought against Farmers. Plaintiff is granted leave to amend only to the extent that he can assert a negligence claim against Farmers which is not based solely on a contract of insurance with a defendant‐driver. MOTION TO STRIKE The motion to strik...

Excerpt: ...Section 809 (enforcement of an easement) and Pen. Code Section 420.1 (penalties for obstructing an easement), only the allegations in the body of the complaint constitute the cause of action. Falahatir v Kondo (2005) 527 Cal. App. 4th 823,829. A demurrer therefore will not lie to the prayer. Caldera Pharmaceuticals, Inc. v Regents of U.C. (2012) 205 Cal. App. 4th 338, 368. Defendants' Requests for Judicial Notice The court denies Defendant's RFJN...

Excerpt: ...irmation of Verbal Agreement for Emergency Force Account Agreement dated January 25, 2017. ▪ Disputed issues of fact exist as to whether CALTRANS Project Engineers asserted control over debris hauling and dumping practices used by Graniterock. LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 25, 2020 TIME: 8:30 A.M. 2 Supporting evidence UMF No. 6, 10, 17—Plaintiffs' Exhibit. K [Lauderdale depo] , at 39:6‐15, 129:15‐130:9; Exhibit B [Wright d...

Excerpt: ...ctively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in the separate statement, the motion should be denied. Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 252 (Cal. App. 1st Dist. 2009. The court finds that triable issues of material fact are raised as to each of the issues submitted by Defendants for summary adjudication. Based on the declaration of Plaintiff's expert...

Excerpt: ...cident. Counsel are ordered to appear at the hearing by Court Call to set a trial date (possibly 5/26/20) within 120 days of the hearing (i.e. on or before 7/20/20). ...

Excerpt: ...cident. Counsel are ordered to appear at the hearing by Court Call to set a trial date (possibly 5/26/20) within 120 days of the hearing (i.e. on or before 7/20/20). ...

Excerpt: ...n enough to allow Defendants to understand the nature of the allegations against them, and the theory of liability in order to fashion an appropriate response. Any ambiguities can be clarified under modern discovery procedures. (Id.) The face of the first and second causes of action for breach of contract and breach of the implied rental agreement does not reveal that the oral rental agreement was for more than one LAW AND MOTION TENTATIVE RULING...

Excerpt: ...ttorney's fees”. The parties agree that this provision is broad enough to encompass both contractual and non‐contractual claims. In this case Defendants successfully defended the contractual claims, while Plaintiff received a monetary award on the non‐contractual claim for conversion. The court is therefore guided by Maynard v BTI Group, Inc.(2013) 216 Cal. App. 4th 984, which holds that in this situation the general provisions of the Code ...

Excerpt: ... 2 Circle Dr., Santa Cruz, CA (“the Property”) at a trustee's sale, despite Plaintiffs' submission of a complete loan modification application. (First, Third, Fourth, and Fifth causes of action) As to those four surviving causes of action, the following paragraphs constitute the allegations of the operative TAC following the demurrer and motion to strike the TAC: ¶¶40(b), 56‐59, 78‐80,82‐86,88‐ 105,107‐113. (see Order on demurrer ...

Excerpt: ...22.20.) 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.) Therefore the demurrer to the first cause of action for quiet title is overruled. As to the Second Cause of Action for violations of CEQA, the County's claimed public nuisance exemption from CEQA assumes that the C...

Excerpt: ...5 allows the trial court to impose sanctions for frivolous actions or tactics made in bad faith. Plaintiff has not followed the safe harbor provision in this section; the trial court cannot award appellate sanctions; and while this court's orders were affirmed on appeal the appellate court decision does not indicate that the appeal was necessarily frivolous or in bad faith; • CCP §2025.430 provides for discovery sanctions for failure to attend...

Excerpt: ...hood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.” CCP §2017.020 (a). The court finds that justice requires the issuance of the requested protective order to protect Plaintiff from unwanted annoyance, embarrassment, oppression, or undue burden and expense; and that the intrusiveness of this disc...

Excerpt: ... has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding. (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492) Defendant Kurrus was neither a named nor a fictitiously designated party to the proceeding when the original complaint was filed. Moreover, while the Supreme Court has a liberal attitude toward all...

Excerpt: ...parate trials of issues or causes of action will further convenience or “be conducive to expedition and economy”. The purpose of bifurcation is to promote judicial economy. Horton v Jones (1972) 26 Cal. App. 3d 952, 954. The preferred procedure is to try equitable actions first, where to do so will result in factual and legal findings that effectively dispose of the legal claims, and promote judicial economy. Weil and Brown, California Proced...

Excerpt: ...facbo (2003) 539 U.S. 52,55‐57; Valley View Health Care, Inc. v. Chapman (E.D.Cal. 2014) 992 F.Supp.2d 1016, 1029.) The FAA requires courts to place arbitration agreements “on equal footing with all other contracts” and a state rule that singles out arbitration agreements for disfavored treatment violates the FAA. (Kindred Nursing Ctrs. Ltd. P'ship v. Clark (2017) ___U.S.___ [137 S.Ct. 1421, 1423.) LAW AND MOTION TENTATIVE RULINGS DATE:FEBR...

Excerpt: ... good faith and fair dealing overlap, this does not necessarily mean that the gravamen of the two counts is the same. Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract. (Digerati Holdings, LLC v. Young Money Entertainment, LLC, (2011) 194 Cal. App. 4th 873, 884‐885) The demurrer to the Third cause of...

Excerpt: ...she knows no facts that support her contention that the alleged misrepresentations were false when made, to say so. Special Interrogatory no. 27: Plaintiff is ordered to review her response and if there are other items of "valuable restaurant equipment” that Defendants were allowed to use as part of the oral agreement to rent, Plaintiff should identify each item with particularity. Special Interrogatory no. 31. Because Plaintiff no longer conte...

Excerpt: ...d against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co., (1998) 19 Cal. 4th 26, 38) (Contrary to Defendant's claim that section 2923.55 has been repealed and no longer exists, section 2923.55 was added by Stats 2018 ch 404 § 6 (SB 818), effective January 1, 2019.) Moreover because the motion is directed as to the entirety of the Complaint on the grounds that the Complaint fails to state any cognizable claims as to Defendant (Notice...

Excerpt: ...or gravamen of the claim, i.e the “allegedly wrongful and injury producing conduct that provides the foundation for the claims”. Weil and Brown, California Procedure Before Trial, TRG, §7:775. The act “underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech”; and the court must distinguish between “(1) speech or petitioning activity that is mere evidence related to ...

Excerpt: ...y affiliates of Monomoy Capital Partners III],West Marine was sold to Monomoy for only $12.97 per common share. Plaintiff should state what a fair and reasonable price per common share would have been but for the allegedly severely conflicted and flawed sales process. (Plaintiff's P's & A's p. 2:19‐28) • [Repass'] actions resulted in the Company entering into lease agreements for properties owned or controlled by Repass, netting him “millio...

Excerpt: ...t provides that, “[In] Any action to enforce or interpret this Agreement… [the] prevailing party shall be entitled to reimbursement of fees, costs, and expenses incurred in connection with the action.” (Ex. A to Mohammed Declaration, Ex.A to Shields Declaration.) Cal Civ Code § 1717 Contract provision for attorney fees and costs provides: (a) In any action on a contract, where the contract specifically provides that attorney's fees and cos...

Excerpt: ...attorney‐client relationship with the attorney, and the fees are actually incurred. Witte v Kaufman (2006) 141 Cal. App. 4th 1201; Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1324– 1325. Defendants have presented no evidence that Mr. Laydon was “in fact” retained and stood in an attorney‐client relationship with Defendants, or that the claimed fees were actually incurred (e.g. engagement agreement, amount billed, amou...

Excerpt: ...e the civil claims. Moreover, bifurcation is not necessary here to promote judicial economy, convenience of witnesses, and the interests of justice. Contrary to Encompass' claim that an early hearing on the Probate Petition can be conducted in a few hours, without the need for live witnesses or testimony, (Encompass P's & A's p. 15:4) the court in Estate of Bennett, (2008) 163 Cal. App. 4th 1303 held that in a contested hearing, it was error to f...

Excerpt: ...0:95.1, citing Nazir v United Airlines, Inc. (Cal. App. 1st Dist. 2009) 178 Cal. App. 4th 243, 252. Defendant has included UMFs No. 7 and 8 in its Separate Statement under Issue No 1 (the County is entitled to summary judgment because it is absolutely immune from liability pursuant to Govt. Code §831.2); under Issue No. 2 (the County is entitled to judgment on Plaintiffs' first cause of action because there was no notice of a dangerous condition...

Excerpt: ...�1033.5 (c)(1), (3). No declaration or other evidence has been presented demonstrating that fees have been incurred; and in the absence of any evidence as to how the fees were calculated there no way for the court to determine if the claimed fees are reasonable. The court may only award costs that are “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation”. CCP §1033.5(c) (2). In...

Excerpt: ...Quelimane Co. v. Stewart Title Guaranty Co.,(1998) 19 Cal. 4th 26, 38) Moreover, a demurrer is simply not the appropriate procedure for determining the truth of disputed facts.' The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.”(Fremont Indemnity Co. v. Fremont General Corp., (2007) 148...

Excerpt: ...nd partially oral”, and that the written agreement sets forth the terms of the agreement. He therefore meets the pleading standard for alleging a contract. Plaintiff alleges that the oral agreement was memorialized by the written agreement attached the FAC as Exhibit A. He further alleges on information and belief that it was signed by Defendants (i.e. signed by the party to be charged). A statute of frauds defense therefore does not appear on ...

Excerpt: ...den, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense. The contract here provides: No action of any character arising from or related to this contract or the performance thereof, the construction of the project or the furnishing of any work, labor services or material, shall be commenced by either party against the other more than two (2) years after completion or cessation of ...

Excerpt: ...edure Before Trial, TRG, §2:15. The naming of these two entities as plaintiffs therefore appears to have been done due to mistake or inadvertence. “If the original statement was due to mistake, inadvertence, inadequate knowledge of the facts, and the amended pleading seeks to allege the true facts as known, there is no admission, judicial or evidentiary”. 4 Witkin, California Procedure, 5th Ed., Pleading, §457. Given the nature of the case,...

Excerpt: ...omplaint for injunctive and declaratory relief in intervention. Counsel for the Parties are directed to meet and confer re: whether this case is appropriate for coordination with County of Santa Cruz et al. v. Bureau of Cannabis Control, et a1., Fresno County Superior Court, Case No.19CECG01224 (filed on April 4, 2019), pursuant to CCP §404 et seq. and CRC 3.520 et seq. The Parties are directed to appear at the hearing to advise the Court of the...

Excerpt: ...se allegations demonstrate that Defendant/Cross‐complainant has “created and/or assented to and has been using” the driveway that he now claims is illegal for 30 years, and he has therefore waived any claim of nuisance from illegal use; that “any violation of fire codes is a matter of fire safety, not access issues with undefined construction vehicles”; and therefore the Cross‐Complaint does not contain a cognizable theory of nuisance...

Excerpt: ...rtz Corp. 221 Cal. App. 4th 768, 775. The demurrer is overruled as to the first cause of action for declaratory relief. Plaintiff has stated a dispute and an actual controversy over the interpretation of the March 21, 2018 Purchase and Sale Agreement and the March 30, 2018 Addendum. The Court is unable to conclude as a matter of law that the terms of the agreement between the parties are clear and unambiguous on their face ‐ both as to the amou...

Excerpt: ...the settlement terms. The standard governing review of such determinations by a trial court is whether the court's ruling is supported by substantial evidence. (In re Marriage of Assemi (1994) 7 Cal.4th 896, 911.) LAW AND MOTION TENTATIVE RULINGS DATE: SEPTEMBER 19, 2019 TIME: 8:30 A.M. 2 To make this factual determination, the court in its discretion may receive oral testimony or determine the motion on declarations. (Id.) A judge ruling on ...

Excerpt: ...ra at 9:632.1.) "It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." (Mazurek v. Armstrong (1997) 520 U.S. 968,972). LAW AND MOTION TENTATIVE RULINGS DATE: SEPTEMBER 18, 2019 TIME: 8:30 A.M. 2 Examining the first of these elements, whether Plaintiff has a reasonable probability of success on ...

Excerpt: ...rden then shifts to the plaintiff to establish a probability of prevailing on the claim.” (Haight Ashbury Free Clinics, 184 Cal. App. 4th 1539, 1547 (2010). The defendant may meet his burden by showing the act which forms the basis for the plaintiff's cause of action was a written or oral statement made before a legislative, executive, or judicial proceeding. (§ 425.16, subd. (e)(1).) Thus, if the defendant's act was a lawsuit,… the ...

Excerpt: ...pply for a new CDP application, and 2) in threatening civil penates if neither of these actions are taken. The Commission essentially argues that this claim is not ripe until Petitioners accept the Commission's authority by submitting a new CDP application; and that they must do so in order to exhaust their administrative remedies. However, the Commission's legal authority for its position that Petitioners “must” submit a new CDP application ...

Excerpt: ...defendant will obtain judgment in the action. Case law has interpreted Defendant's burden to show that there is no reasonable possibility the out‐of‐state plaintiff will prevail: “The purpose of section 1030 is to protect California residents who are sued by out‐of‐state plaintiffs when there is no reasonable possibility the out‐of‐state plaintiff will prevail.” (Yao v. Superior Court, (2002)104 Cal. App. 4th 327,331, 333.) Unlike...

Excerpt: ...ich a money judgment could be docketed against the defendant liable for such deficiency, such a judgment was not the sole object of the action but was an incident of the equitable relief sought. It might not even become necessary, as the mortgaged premises might bring a sufficient sum to pay the mortgaged debt and the circumstance, that in the contingency of the premises proving insufficient, a judgment for the deficiency might result, did not en...

Excerpt: ...or prior to or during the trial, unless the parties otherwise agree in the settlement or compromise. Following entry of judgment in related case No.18CV03613, mobile home owner filed requests for entry of dismissal of his complaints in case no's 18CV02825 & 18CV03386, therefore Defendant Park Owner is prevailing party and entitled to reasonable attorney's fees. As for what constitutes “reasonable” attorney's fees: "Reasonable" attorne...

Excerpt: ...re the Court noted that the content of section 15610.57, subdivision (b)… seems to contemplate the existence of a robust caretaking or custodial relationship—that is, a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder's basic needs that an able‐bodied and fully competent adult would ordinarily be capable of managing without assistance. (Winn v. Pioneer Medica...

Excerpt: ...st supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. II. VIKAS GOEL'S MOTION TO SET ASIDE VOID JUDGMENT AND TO QUASH SERVICE A. The Motion is Timely Cal. Code Civ Proc § 473 Amendment of pleadings provides: (d) The court may, upon mo...

Excerpt: ...ted/Complex. (2) Plaintiffs assert the matter should be designated complex under CRC 3.400 due to the number of parties and the volume of discovery. Answering Defendants do not oppose the motion. Plaintiffs are judgment creditors who in this action is seeking to hold Defendant entities liable for Plaintiffs' two judgments on alter ego theories. California Rules of Court Rule 3.400 provides guidance and notes the following factors are to be consid...

Excerpt: ...ks. (1975) 13 Cal.3d 710, 717) In Lyles v. State of California, (2007) 153 Cal. App. 4th 281, the Sixth District applied the 3 year statute of limitations to bar an inverse condemnation cause of action for damages to residential property allegedly caused by an inadequate drainage system surrounding public roads which allowed flooding of the property. Significant to the Court was the fact that “this case involves a one‐time known damage event�...

Excerpt: ...ed facts demonstrate that Ford's express warranty does not cover items needed to maintain the vehicle, such as “oils, lubricants, other fluids”; and that it does not cover “damage caused by using contaminated or improper fuel/fluids” [UMF 3]; that the truck was “perfect”, and did not have any problems in the first year [UMF 2]; that during the third repair visit on 10/16/16, after testing and diagnosis, a dealership technician working...

Excerpt: ... a non‐judicial foreclosure and trustee's sale of their property, because they did so under color of two recorded assignments of the Deed of Trust which are void: • A Corporate Assignment of Deed of Trust, executed on October 29, 1997 and recorded on May 17, 1999, by ICI Funding Corporation to Bankers Trust “as trustee under Indentiture relating to IMH Assets Corp., Collateralized AssetBacked‐Bonds, Series 1998‐3” [Assignment #2]; and...

Excerpt: ...y constituted unprejudiced Committee on Charges, and then strictly adhering to the procedures mandated by CAPM 002.015”. The gravamen of Petitioner's claim is that Kletzer's predecessor, CP/EVC Tromp, deviated from the protocol set forth in CAPM .002.151 by assigning the investigation of LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 9, 2019 TIME: 8:30 A.M. 3 complaints against Petitioner for sexual harassment to the University's Title IX office...

Excerpt: ...se to believe that information disclosed constituted a violation of law or regulation Plaintiff alleges that she reported to principal Oklin that it was not appropriate for her to teach a full 15 units of a 30‐unit Algebra course, because (1) she only had a substitute teaching credential and did not have the proper credential required to actively and directly teach an Algebra course; and (2) as a substitute teacher she could not legally teach 5...

Excerpt: ...ith CCP § 435.5's meet and confer requirements. In addition, Principal has failed to establish that Bonner is in default as to discovery, etc. as to Principal. For example, the order Principal cites in support of its motion entered 9/11/18, was an order finding that Steven Bonner disobeyed orders pertaining to discovery propounded by Plaintiff, not Principal. (Ex. D to Dec. M. Brisbin) Therefore, the Court, having reviewed Principal's Motion to ...

Excerpt: ...djudication as to Plaintiff's second cause of action for fraud is DENIED. The operative complaint (Plaintiff's Fourth Amended Complaint) asserts a cause of action for medical negligence against Defendants Dignity Health (dba Dominica Hospital), Tobias Yeh, M.D., and John Christensen, M.D.; and a cause of action for the intentional tort of fraud in falsifying medical records against Defendant Dignity Health. Medical negligence cause of action‐�...

Excerpt: ...of at least $25,000 as it requested in its Complaint. However, Plaintiff did prevail, on a practical level, by achieving its main litigation objective of stopping work in Defendant's unit until all necessary permits were obtained and ensuring that such work was carried out in compliance with the CC &R's. The Court concludes that had the litigation not been initiated, and the temporary restraining order obtained, Defendant would have continued wit...

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

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

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

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

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

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

Excerpt: ...d the proposed settlement of 17% of that amount totaling $231,750. Plaintiffs are requested to provide supplemental briefing and declarations addressing the following so that the Court may evaluate whether the proposed settlement is fair, reasonable, and adequate: 1. A factual assessment of the strength of the case, including a factual basis for counsel's wholly conclusory statement that the proposed settlement for 17% of the total maximum recove...

Excerpt: ...cts. ‐ identify all documents that support its denials or affirmative defenses and the name, address, and telephone number of anyone who has each document. The motion to compel further responses to form interrogatory 17.1 is granted. As to Plaintiff's requests RFA F7—F8 and F10‐F14 BONY is ordered to address these specific requests for admission in its response and: ‐state the name, address, and telephone number of anyone with knowledge o...

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

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

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

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

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

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

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

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

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

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

Excerpt: ...arately established, even if that element is separately pleaded. (p) For purposes of motions for summary judgment and summary adjudication: (2) A defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established. Once the defendant has met that burden, the burden shifts to the plaintiff to show that a tri...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...g based on its interpretation of the Purchase Agreement under English law. The court assumes that the U.K. court will determine the financial obligations at issue between Carl and Fisken arising under the Purchase Agreement. Thereafter, this Court will determine Canepa's obligations concerning time, manner and place of LAW AND MOTION TENTATIVE RULINGS DATE: MARCH 28, 2019 TIME: 8:30 A.M. delivery of the gear box and any other issues not resolved ...

Excerpt: ...n Castro v. Superior Court, (2004) 116 Cal. App. 4th 1010, 1022‐1023. Although the complaint here contains a cause of action for declaratory relief which would, if meritorious, affect the use of an easement identified in the pleading and therefore constitutes a “real property claim”, Plaintiff did not establish by a preponderance of the evidence the probable validity of her claim. Therefore, had the lis pendens not been withdrawn, the Court...

Excerpt: ...r and/or file its own cross‐complaint. The Cross‐Complaint filed by Alfredo Trinidad and the Landis Law Firm is therefore not yet at issue. Additionally, Cross‐Complainants have not provided authority for determining the competing claims of the parties on a regular motion as opposed to a motion for summary judgment ...

Excerpt: ... (2016) 63 Cal. 4th 148, 155 as “where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able bodied and fully competent adult would ordinarily be capable of managing without assistance”. A landlord‐tenant relationship is not a caretaking or custodial relationship under this definition. Plaintiff has also failed to allege an Elder Abuse cause of action b...

Excerpt: ...a consideration as is the policy of trying cases upon their merits.” (3 Witkin CA Procedure (5th Ed. 2008) Actions § 433.) Although Plaintiff argues that the Court previously determined that Defendant waived or forfeited the limitations defense in its ruling on the summary judgment motion. (Opposition p. 3:10), as Defendant correctly points out, the Court's Order denying the MSJ states, “IT IS ORDERED that the motion for summary judgment is ...

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

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

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