Excerpt: ...ourt in its discretion shall regulate the order of proof]. However, Plaintiff has failed to meet his burden of demonstrating that bifurcation of the equitable causes of action for quiet title and accounting would result in judicial economy, promote justice, be more convenient to witnesses, or avoid prejudice. Plaintiff's quiet title claim is based in part on the same set of facts, and on the same legal theory (a violation of §2943 by the failure...

Excerpt: ...the Second Lien DOT; and these claims are time barred. Plaintiff's 4th, 5th and 6th causes of action for fraudulent and negligent misrepresentation and fraudulent concealment are based on the general allegation that “Defendants” misrepresented that the 2011 Loan Modification included all loans associated with the subject property. Plaintiff does not plead a specific misrepresentation by SPS; the Modification Agreement states in all caps on pa...

Excerpt: ...y or the payment of money, whether consisting of a special fund or not, and whether payable by the appellant or another party to the action. The Court in Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 stated, “[W]e interpret section CCP § 917.1(d) as requiring an appeal bond or undertaking to stay enforcement of a judgment for reasonable attorney fees and costs awarded to a prevailing SLAPP defendant under subdivision (c) of section 425.16. I...

Excerpt: ...es the motion of defendants Rushmyfile, Inc., FMC Lending, Inc., and Andrew Dioli to seal court records. Background: On May 17, 2019, a jury returned a verdict in this case, finding in favor of plaintiffs Merle Taylor and Marilyn Taylor and against defendants Robert Houston and Linda Lukas on claims for fraud, breach of fiduciary duty, and abuse of an elder. The jury awarded economic damages of $455,827 and non-economic damages of $100,000. As to...

Excerpt: ...ights and duties. (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 38) However a court "is required to give 'great weight' to the conduct of the parties in interpreting the instrument before any controversy arose". (Kennecott Corp. v. Union Oil Co. (1987) 196 Cal.App.3d 1179, 1189‐1190)) A reasonable trier of fact could find that the all of the Defendants committed to make the payments to Plaintiffs called for in the ...

Excerpt: ...tract) and third (quiet title) causes of action in cross-complainant Gisela Neumann's second amended cross-complaint with leave to amend. The court overrules the demurrer to the second (elder abuse) cause of action. This ruling does permit amendment of the second cause of action in a manner consistent with this ruling. Background: This is an action to partition by sale real property located at 6175 Manzanillo Drive in Goleta. Plaintiff Andre Neum...

Excerpt: ...blishes new law on the issue of tiering. However, Save Berkeley's Neighborhoods merely summarizes existing law under Pub. Resources Code §§21094 and 21166 on when an agency may tier the environmental review of a later project from the program EIR, and when a change in the original project requires a subsequent or supplemental EIR. It relies on long established case law for its analysis of the issue. See, Sierra Club v. County of Sonoma (1992) 6...

Excerpt: ...allege create a duty on the part of BRP to protect Plaintiffs' property from the illegal improvements and encroachments by neighboring BRP members. Defendants have not contested this authority; and Plaintiffs have therefore stated a cause of action. The dispute between the parties as to the operable bylaws does not render the FAC uncertain, as Defendant asserts that the FAC clearly relies on the By ‐ Laws recorded in 1950, based on their own Re...

Excerpt: ... 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. In a declaratory relief action, the defendant's burden is to establish the plaintiff is not entitl...

Excerpt: ...iled in defeating Plaintiff's attempt to obtain rescission and damages, this was not a collection action for failure to pay the Note when due. The contractual fee provision therefore does not apply. ...

Excerpt: ...by extending an existing woodpile. This paragraph provides that Defendants have the right to maintain and landscape a certain portion of the 40 ft right of way in front of their house , as long as it does not interfere with or impede the convenient use of the right of way; and that certain landscaping, including fences, is prohibited “with the exception of the area currently occupied by the ‘concrete fence' and ‘concrete footing for fence',...

Excerpt: ...me the presumption, the motion for final approval of class action settlement, award of class representative payment, class counsel fees and costs, administration fees, and PAGA payment is granted, conditioned on Class Counsel filing prior to or at the hearing a further declaration attaching a copy of any agreement that has been entered into with respect to the payment of attorney's fees. (Cal Rules of Court, Rule 3.769(b)). With respect to the cy...

Excerpt: ...Law (2019) 361 F. Supp.3d 956,973) As to finality of the interim suspension decision or order, the interim suspension was not a final administrative decision or order. Petitioner still may have been found to not be responsible for the underlying issue that led to the interim suspension during the process of the permanent suspension. (AR 025). Even if the interim suspension were a final administrative decision or order, the interim suspension proc...

Excerpt: ...ds as follows: 1. The filing fees on the Answer to the Gill complaint and on the motion for summary judgment are attributable to the Gill Plaintiffs. The motion to tax is denied as to these costs. 2. 50% of the deposition of Stephen Whitmire dealt with Mr. Whitmire's personal injuries, was not relevant to the defense of the Gill action, and is attributed to the Whitmire Plaintiffs. The remaining 50% of the Whitmire deposition was equally relevant...

Excerpt: ...Brady to be named as an additional insured on all policies of liability insurance.(UMF's 34, 36, Hutchison Dec. Ex. B.) Virginia Surety (“Virginia”) issued insurance policies to Lee's. In those policies, Virginia agreed that who is an insured included as additional insureds the persons or organizations with respect to liability arising out of Lee's work or for property damage caused in whole or in part by Lee's acts or omissions. (see the ins...

Excerpt: ...nt has met that burden, the burden shifts to the plaintiff or crosscomplainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Cal Code Civ Proc § 437c(p)(2)) Cross‐complainants have failed to show that a triable issue of one or more material facts exists. As to UMF's 7,9, & 11, the references to the Newman declaration do not create triable issues of material fact. (There is a ...

Excerpt: ... that is protected by the anti‐SLAPP statute. (see Opposition fn. 1) 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 .) Only a cause of action that lacks “even minimal merit” constitutes a SLAPP. (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 700) Regarding...

Excerpt: ...(1997) 53 Cal. App. 4th 801. The one action rule is therefore not a bar to Plaintiff's action. Moreover, on February 14, 2020 Plaintiff and her daughters filed a consolidation of the actions filed by Plaintiff and by Ms. Hernandez, and are now proceeding to litigate their claims in a single action. The demurrer to the entire complaint based on the one action rule and misjoinder is overruled. Fraudulent/illegal marketing (5th c/a) Plaintiff has al...

Excerpt: ...ered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgme...

Excerpt: ...4.5 ft. gap between the parties' respective properties. Defendants are ordered to remove the new fence and the addition to the wood pile that extends it further into the 40 ft right of way than the “Wood Pile” that existed at the time of the Settlement Agreement; to pay Plaintiffs $2000 in damages for the removal of the three holly trees; and to pay Plaintiffs their attorney's fees and costs in the amount of $11,933, pursuant to the attorneys...

Excerpt: ...in the court's discretion constitute a sufficient ground for denying the motion. Cal Rules of Court, Rule 3.1350 Motion for summary judgment or summary adjudication: (d) Separate statement in support of motion (1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. Here, Defendant's...

Excerpt: ... and fence on their easement; (2) require Petitioners to either remove the gate and fence or apply for a Coastal Development Permit (CDP); and (3) impose civil penalties if Plaintiffs refuse to remove the gate and fence to allow public access to Twin Lakes State Beach. Petitioners seek a writ of mandate directing the County and the Coastal Commission to (1) withdraw demands for the retraction of their LAW AND MOTION TENTATIVE RULINGS DATE: July 3...

Excerpt: ...ur large joint venture projects. Plaintiffs allege that Defendants misrepresented that the “reasonably possible additional costs” of these projects were at most $47 million for 2018; and that Defendants made additional misleading statements as to its “economic outlook in general”, its “exceptional management of risks”, and other expressions of corporate optimism. Plaintiffs further allege that Defendants failed to disclose that it had...

Excerpt: ...s a result of the pandemic, it would not be appropriate to approve a settlement that includes performance of financial terms that are now impossible to perform as that settlement would not be reasonable. Defendant suggests that the court exercise equitable powers to impose a new financial term. The court declines to do so. The parties are directed to meet and confer regarding whether they wish to return to litigation or settlement negotiations. o...

Excerpt: ...ise to a duty to act. Regents v Univ.of Calif. V Sup. Ct. (2018) 4 Cal. 5th 607, 669. The FAC alleges that Defendant participated in the plan for a Crossover Ceremony, which included rituals involving the provision of drugs and alcohol to Alex, who was under 21 years of age; that Alex was required to attend the ceremony; that Alex, who was already intoxicated and unable to drive was taken by Defendant and others to the location of the Ceremony, w...

Excerpt: ...material fact which Plaintiff relied on to her detriment [UMFs 1‐30, 30‐60] The evidence in support of this material fact is as follows: Decl Leask, Decl Sue Rowley Decl Annamarie Nelson, Decl Craig Nelson Documentary evidence: Exhibit C. Reporter's Transcript of the Plaintiff's Deposition Vol. I, taken on February 3, 2016 Exhibit D. Reporter's Transcript of the Deposition of Plaintiff, Vol. II, taken on February 4, 2016. Exhibit E. Resumes o...

Excerpt: ...ilure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion. Dubois asserts as UMF no. 20: “On October 05, 2016, DuBois was advised that its proposal was not accepted and Fifty‐Five was working on estimates from other roofing contractors.” (Dubois Separate Statement UMF 20) The reference to the supporting evidence is: Email Correspondence, Exhibit B4; DuBo...

Excerpt: ...requests the court to compel the City to cease charging Plaintiffs the increased rates; cease charging other customers reduced and deflated rates; and refund all increased water charges paid by Plaintiffs since 2016, with prejudgment interest. The City demurs to the FAC on two bases: (1) Propositions 26 and 218 do not apply to Plaintiffs' claims, because Plaintiffs “voluntarily” use and pay for untreated water from the City, and therefore the...

Excerpt: ...iled to return the final modification agreement within the required timeframe, therefore their eligibility for a modification expired. Plaintiffs have failed to state sufficient facts to constitute a cause of action. The motion for JOP to the Third Cause of action for Violation of Civil C. section 2923.7 , is denied. Defendant argues that the allegation of a lack of a single point of contact is belied by the fact that Plaintiffs were reviewed for...

Excerpt: ...he initial cross‐complaint was filed on January 23, 2019. This cause of action is therefore time barred. Interference with contractual relations/prospective economic advantage (2d & 3rd c/as) Breach of fiduciary duty (4th c/a)/Fraudulent transfer (5th c/a) The Family Law court has sole and exclusive jurisdiction over these causes of action, which involve businesses which are community asserts. In October 2017 the San Mateo Superior Court grante...

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: ...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...