Excerpt: ...pel arbitration due to a risk of inconsistent rulings. Plaintiffs have failed to demonstrate that the Agreement is subject to revocation Plaintiffs contend that the Agreement is subject to revocation due to lack of mutual consent, lack of consideration, its illusory nature, and fraud. The parties mutually agreed to arbitrate any disputes covered by the Agreement. Therefore, pursuant to Civ. Code §1605, there was good consideration for the Agreem...

Excerpt: ...ty of the petitioner to make available to the trial court an adequate record of the administrative proceeding; otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “‘prejudicial abuse of discretion. (Foster v. Civil Service Com (1983) 142 C...

Excerpt: ...standard. The court finds that the Commission did exceed its authority by granting the County's request and reconsidering the September 27, 2018 decision on an issue other than those specified in County Personnel Regulations §130 (E)(7)(a). Factual background Petitioner appealed a disciplinary action taken by the Santa Cruz Sheriff's Office, demoting him from the position of Lieutenant to Sargent, to the Civil Service Commission. On September 27...

Excerpt: ...ty of the petitioner to make available to the trial court an adequate record of the administrative proceeding; otherwise the presumption of regularity will prevail, since the burden falls on the petitioner attacking the administrative decision to demonstrate to the trial court where the administrative proceedings were unfair, were in excess of jurisdiction, or showed “‘prejudicial abuse of discretion. (Foster v. Civil Service Com (1983) 142 C...

Excerpt: ...standard. The court finds that the Commission did exceed its authority by granting the County's request and reconsidering the September 27, 2018 decision on an issue other than those specified in County Personnel Regulations §130 (E)(7)(a). Factual background Petitioner appealed a disciplinary action taken by the Santa Cruz Sheriff's Office, demoting him from the position of Lieutenant to Sargent, to the Civil Service Commission. On September 27...

Excerpt: ...CCP §1281.4 provides that “If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only”. This section vests the trial court with the discretion to sever issues to prevent prejudice to a litigant in multiple issue or multiple party actions by a stay of proceedings. Cook v. Superior Court of Los Angeles County (1966), 240 Cal. App. 2d 880. Similarly, Federal courts have interpreted...

Excerpt: ...e of limitations applying to bodily injury claims in the state in which the accident occurred in order to have the dispute settled by a court having jurisdiction”, this language does not require the suit to be litigated in California, nor is it Defendants' consent to litigate in California. Rather, California's statute of limitation is to apply “in order to have the dispute settled by a court having jurisdiction”. (Ex. A to Dec. K. Thompson...

Excerpt: ...ested voicemails either never existed, or to the extent they existed they were deleted “consistent with the ordinary course and regular practice of deleting voicemails following their receipt and review”, provides an explanation for the inability to comply, regardless of the fact that it provides two alternative reasons. However, Defendants' statement that the requested voicemails, to the extent they existed, were deleted “consistent with t...

Excerpt: ...d (2) “there is a reasonable possibility that the moving defendant will obtain judgment in the action”. Plaintiff (CTRG) concedes that it is a foreign corporation; however, Defendants have failed to demonstrate a “reasonable possibility” of prevailing on the core claims that form the gravamen of Plaintiff's complaint: that Defendants have breached the Operating Agreement for CAC by failing to pay CTRG “fixed annual” Class B Membership...

Excerpt: ...has met that burden, the burden shifts to the cross‐defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof…If there is a single such issue, the ...

Excerpt: ...ted and diverted the natural flow of water, and controlled the design of the drainage system at issue. Procedural challenge A motion for summary adjudication must show that the material facts are undisputed. The pleadings serve as the “outer measure of materiality” on a motion for summary adjudication, and the motion may not be granted or denied on issues not raised by the pleadings. Weil and Brown, California Procedure Before Trial, TRG, §1...

Excerpt: ...to enforce an independent right or to impose greater liability upon the defendant. In such cases, the amended complaint does not relate back to the filing of the original”. (CA Practice Guide (Weil & Brown 2020) Civil Procedure Before Trial § 6:755) Because the policy is to liberally permit amendments and to resolve all disputed matters between the parties in the same lawsuit, the motion for leave to file a SAC is granted. ...

Excerpt: ... the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation. (Loeb & Loeb v. Beverly Glen Music (1985) 166 Cal.App.3d 1110, 1120.) Except where matters are specifically permitted to be shown upon information and belief, each affidavit or declaration must show that the affiant or declarant, if sworn as a witness, can testify competently to the facts stat...

Excerpt: ...ned an acknowledgment of receipt of employee handbook on 12/29/17 in which he acknowledged and agreed that the arbitration agreement is a term and condition of his employment with Scudder and that by his continued employment, he agreed to arbitration.” (Ex. A to Dec. P. Scudder filed 10/5/20) Also, unlike Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 787, Plaintiff states that he agrees to abide by the arbitration agreement within the h...

Excerpt: ...civil actions sharing a common issue of fact or law is appropriate under CCP §404.1 where it will “promote the ends of justice”, considering: LAW AND MOTION TENTATIVE RULINGS DATE: OCTOBER 8, 2020 TIME: 8:30 A.M. 2 • Whether the common issue of fact or law is predominating and significant to the litigation of each included action; • The convenience of the parties, witnesses and counsel; • The relative development of the actions and the...

Excerpt: ...ota Chapter on 3/12/19 dissolved the Chapter, making it a nonentity incapable of suing or being sued. (Defendants' Motion p.5:23, 6:26) However, Holt was decided prior to the enactment of Cal Corp Code § 18410 (effective 1/1/2006). That section provides: An unincorporated association may be dissolved by any of the following methods: (a) If the association's governing documents provide a method for dissolution, by that method. (b) If the associat...

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...