Excerpt: ...e default based on CCP § 473(b) is denied as untimely and because Defendant has not established that judgment was entered as a result of mistake, inadvertence, surprise or excusable neglect. (CCP § 473(b)) However, the court has inherent, equitable powers apart from any statutory authority to set aside a judgment on the ground of extrinsic fraud or mistake to which the statutory time limits under CCP 473(b) do not apply. (Cal Practice Guide, (T...

Excerpt: ...ation as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, o...

Excerpt: ...ms subject to forfeiture: The following are subject to forfeiture (f) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, or securities used or intended to be used to facilitate any violation of Section 11351,...11355, 11359, 11360,...of this code... Ca...

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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 ...