Excerpt: ...pecified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Article 28 of the Lease provides that if either party undertakes litigation against the other in connection with the lease, the prevailing party as determined by Civil C. § 1717(b)(1) is entitled to reasonable attorney's fees and costs. In view of the Court's ruling that Plaintiff shall take nothing by its complaint and judgment shall iss...

Excerpt: ... in which he said he moved out of 211 Blackburn no later than 3/15/20 (Tim Kephart Dec. filed 2/24/21 ¶2) and his Cross‐complaint in which he said that he moved out of 211 Blackburn Street on or about June 2020, (Cross‐complaint filed 10/19/20 attached as Ex. 1 to Hamerslough Dec. filed 3/5/21 at ¶ 22), Tim Kephart will be ordered to pay Petitioner $3,000.00 rent for March ‐June 2020 or 4 x $3,000.00 = $12,000.00 within 30 days of the dat...

Excerpt: ...s filed that Margot Schwartz claimed that she and her brother were Directors of the Foundation. (See Ex. D to Margot Schwartz Declaration, the Corporation Statement of Information filed with the CA Secretary of State on 9/11/20 designating Margot and Noah Schwartz as officers and Erik Dryburgh as agent for service of process; email from Donald dated 10/22/20 asking Margot, “Do you have an attorney on the Schwartz Foundation”, Ex. H to Margot ...

Excerpt: ...rit and interim‐harm factors is tipped in favor of Defendants, who will suffer prejudice if an improper injunction is issued. Authority for issuance of the requested injunction CCP §526(a)(2) and (4) authorizes the issuance of an injunction where the moving party has an inadequate remedy at law or will suffer irreparable harm These two criteria are often related and may be present, despite the availability of monetary damages, where a defendan...

Excerpt: ...alistic prospect that the party enjoined intends to engage in the prohibited activity.” (Epstein v Sup. Ct. (2011)193 CA4th 1405, 1411) Based on the affidavits and the allegations in Plaintiffs' Complaint that “Through further communications between counsel, Defendants have modified their statement that they intend to block the Gravel Road as of 1/31/21, now claiming they will refrain from blocking the path temporarily, while Plaintiffs consi...

Excerpt: ...on‐Liability of Landlord: Tenant agrees to and shall defend and indemnify Landlord against all claims. liability loss and expense by reason of injury to person or property, or both. including without limitation. injury to the person or property of Tenant, its agents. officers, employees,. licensees or Invitees arising out of the condition of the Premises or any portion thereof over which Tenant has control and a duty to repair and maintain unde...

Excerpt: ... within the redemption period. Additionally, the three year limitations period on Plaintiff's inverse condemnation claim began to run no later than October 6, 2017, when the sale occurred, and Plaintiff did not file his complaint until October 22, 2020. Plaintiff's claim for inverse condemnation is therefore time barred under CCP §338(j). The court is not persuaded by Plaintiff's assertion that the five year statute of limitations period for adv...

Excerpt: ...VilaVet Labs (2016) (6 CA5th 1178, 1184). Based on the affidavits submitted, it appears that the status quo or the last actual peaceable, uncontested status which preceded the pending controversy was a gate to Plaintiffs' property unobstructed by mounds of dirt or mailboxes. Moreover, there is a reasonable probability that Plaintiffs will prevail on the merits at trial and that Plaintiffs would suffer greater injury if the injunction were not gra...

Excerpt: ...ohol, refused to take both a breath and a warrantless blood test. The court noted that the question of whether a motorist can be subjected to a license suspension for the failure to submit to a warrantless blood test is an open question, and therefore chose to “err on the side of caution” in affirming Espinoza's license suspension based only on her failure to take a breath test. Petitioner contends that this suggests that a license suspension...

Excerpt: ...speculate as to which causes of action the issues Defendants seek to have adjudicated relate, and as to which causes of action their UMFs are directed. Defendants have failed to meet their threshold burden of proof on their claim that Plaintiff does not have an easement under any theory Defendants have failed to meet their threshold burden of proof on their claim that Plaintiff does not have an express easement for access to its facility from the...

Excerpt: ..., breach of fiduciary duty and a cause of action entitled “dual representation”. Since the complaint still includes these causes of action summary judgment is not available to Plaintiff. Regardless, Plaintiff has either failed to meet his threshold burden of proof or triable issues of material fact exist as to several elements of his cause of action for fraudulent concealment: On the element of concealment of a “material” fact: Plaintiff ...

Excerpt: ...versity's sanctioning options range from dismissal to loss of privileges to restitution and probation. (Ex. G to Eklof Dec, pg.19 of 22) The primary remedy Plaintiff seeks through this action is damages, but there is no effective administrative remedy available to Plaintiff. Therefore, the demurrer is overruled on this ground. The demurrer to the First Cause of Action for violation of the Unruh Act (CA Civil Code § 51) is sustained without leave...

Excerpt: ...n (FAC ¶25). Unlike the case or controversy limitation on federal court jurisdiction, which requires that the plaintiff have a personal stake in the outcome of the controversy, state court jurisdiction has no such limitation. Singleton v Wulff (1976) 428 U.S. 106, 113‐116. Instead, a plaintiff challenging a legislative or executive action in a California court must only show that “he or she is sufficiently interested”. Weatherford v City o...

Excerpt: ...the “litigation exception” set forth in 18 USCS § 2721 (b)(4) (“the Act”), does not entitle Petitioner to the information he seeks. (Petition p. 4:6, Motion p.5:17) The US Supreme Court has directed that the exception is to be construed narrowly: the “exception to a “general statement of policy” is “usually read . . . narrowly in order to preserve the primary operation of the provision”. (Maracich v. Spears (2013) 570 U.S. 48, ...

Excerpt: ...ons Petitioners assert that this action is not barred by the claims splitting doctrine and res judicata, because the Dependency Count did not adjudicate the issue of whether Director Timberlake's decision was arbitrary, capricious and lacking in evidentiary support. However, both actions involve the same ultimate issue: the validity of the Department's final decision; both actions involve the same primary right: the Petitioner's custodial relatio...

Excerpt: ...ble to give a knowing and intelligent consent due to a concussion suffered in the accident which preceded his arrest. The hearing officer's rejection of this contention is supported by the evidence— specifically the arrest report and supplemental report, which indicate that Petitioner was responsive, answered Officer Vasquez' questions, and gave oral consent to a blood test. Petitioner presented no medical evidence to support his contention tha...

Excerpt: ...is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery and (contrary to popular belief), fishing expeditions are permissible in some cases. (Stewart v. Colonial Western Agency, Inc. (2001) 87 C...

Excerpt: ...fendants on their claim that Plaintiff is in breach of the MIPA, these obligations will remain unaffected. The court therefore finds that the issues involved in Plaintiffs' 6th c/a for declaratory relief with regard to the Exchange Interests and Rights for the Pledged Securities are severable from the issues involved in the arbitration. Pursuant to CCP Section 1281.4 the court exercises its discretion to limit the stay and permit Plaintiff to con...

Excerpt: ...r the position that this allegation is required for a common counts claim based on a quantum meruit theory. However, E.J. Franks Construction, Inc. v Sahota is an appeal from a judgment, not a demurrer, and involves issues of proof not pleading. Plaintiff does not cite any authority for the position that a common counts claim is inadequately pled unless it includes this specific allegation. Plaintiff/Cross‐defendant demurs on the further basis ...

Excerpt: ...suffer emotional distress, knowing that plaintiff was present when the conduct occurred; (3) that plaintiff suffered severe emotional distress; and (4) that defendant's conduct was a substantial factor in causing plaintiff's severe emotional distress. (CACI 1600.) A defendant's conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Liability for intentional infliction of emoti...

Excerpt: ... element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action. (p) For purposes of motions for summary judgment: (2) A defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defend...

Excerpt: ...reement, and not as a trustee or in furtherance of its mission under its Articles of Incorporation. CFSC may therefore sue Encompass on the Services Agreement for breach of its fiduciary duty (1st c/a) and for breach of the Services Agreement (2d c/a) under an agency theory. The court is not persuaded by Encompass' assertion that a trustee cannot sue a beneficiary even if the subject of the lawsuit is unrelated to the trust. Encompass' reliance o...

Excerpt: ...is four years. Defendant's failure to make distributions and to provide the profit and loss statement followed by his denial of the contract (i.e. repudiation) in the 7/14/15 letter constituted a total breach of the agreement. “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. A plaintiff need no...

Excerpt: ...he same grounds instead of moving to strike the new and improper allegations/argument, the County has essentially invited the court to reconsider the prior ruling. To the extent that the court is now required to engage in such reconsideration, without adherence to the jurisdictional requirements set forth in CCP §1008, the court will exercise its inherent authority to do so pursuant to Le Francois v Goel (2005) 35 Cal 4th 1094. On reconsideratio...

Excerpt: ...d cause of action for wrongful foreclosure which is barred by Res Judicata. (see further discussion below) LAW AND MOTION TENTATIVE RULINGS DATE: JANUARY 4, 2021 TIME: 8:30 A.M. 2 The demurrer to the First cause of action for breach of contract is sustained without leave to amend for Plaintiff's failure to allege a contract and her performance. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745; Goodman v. Kennedy (1976) 18 Ca...