Excerpt: ...tenance Agreement for the project site shoreline protection structure shall be recorded by the owners. The Monitoring and Maintenance Agreement for the riprap revetment will be developed by Environmental Planning Staff.” (Ex. C to Dec. of Cove Britton.) • 5/31/22 County sends petitioners a letter, rescinding the August 12, 2021 acceptance. The County states “recent research and information has indicated that a maintenance agreement for the ...

Excerpt: ...8/22. The Court conducted a review of the agency file lodged by the County respondents. Petitioner filed “the present petition for de novo review of the Hearing Officer's decision pursuant to California Government Code Section 53069.4, and to enforce their rights under California Government Code Section 6258, the Public Records Act.” (POB at p. 9.) The Court views Petitioner's writ in two general areas: (1) was there sufficient evidence to su...

Excerpt: ...) a duty of honest and fair dealing and good faith. Sotheby's argues that this c/a fails because it is predicated exclusively on Buyers' actions in failing to follow terms of the Purchase Agreement and deadlines outlined by it, not by any of its acts, and that the facts as plead establish that Sellers prematurely canceled the Agreement so there are no facts that Sotheby's violated any duty of diligence, honesty or good faith. Sotheby's demurrer e...

Excerpt: ...and enforceable against all parties. The parties entered into settlement discussions in May 2022. (Mohamed Decl. ¶2; Sutton Decl. ¶9) Counsel declarations describe a lengthy process for obtaining all parties' signatures, but that appears to have been accomplished by 9/11/22. Defendants and their counsel all wet‐ signed the agreement on 8/31/22. (Sutton Decl. Ex. 1) On several occasions thereafter defense counsel took actions and made statemen...

Excerpt: ...] Moreover, the exemptions from disclosure provided by section 6254 are permissive, not mandatory: They allow nondisclosure but do not prohibit disclosure. [Citations.] Indeed, the penultimate sentence of section 6254 provides, ‘Nothing in this section prevents any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.' [Citation.]” Marken v. Santa Mo...

Excerpt: ...isonment, based on the immunities afforded public entities pursuant to Government Code §815, and since no statutory basis for liability is plead, Defendant District is immune from liability for false imprisonment as a matter of law. Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 863‐864. The demurrer as to District is sustained without leave to amend. LAW AND MOTION TENTATIVE RULINGS DATE: JANUARY 10, 2023 TIME: 8:30 A.M. 4 Di...

Excerpt: ...to CRC 2.112 by failing to include the nature of the cause of action for each attempt at a cause of action and fails to use the format prescribed by the Rule of Court; LAW AND MOTION TENTATIVE RULINGS DATE: JANUARY 9, 2023 TIME: 8:30 A.M. 2 • Petitioner's motion fails to identify the changes to the Petition and why they are necessary in violation of CRC 3.1324(a); and • The Court file does not contain any declaration in support of the motion ...

Excerpt: ...intiff purchased an interest in real property at a homeowner's association (“HOA”) foreclosure sale. The HOA assessments were incurred by a non‐party, Mr. Guerrero, who purchased the property with a loan from America's Wholesale Lender in November 2005. The loan was later assigned to Bank of New York serving as trustee for the Certificateholder of CWALT, Inc. Alternative Loan Trust. The terms of the loan were later modified by Bank of New Y...

Excerpt: ...an‐patient privilege may only be waived through a clear manifestation of an intent to waive. (Evidence Code §912; Palay v. Superior Court (1993) 18 Cal.App.4th 919, 926, fn. 7.) Waiver occurs if the person holding the privilege, without coercion, discloses a significant portion of the communication or has consented to disclosure. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating con...

Excerpt: ...gment order that was not a money judgment or an order directing it to pay money. American Surety, supra, 31 Cal.App.5th LAW AND MOTION TENTATIVE RULINGS DATE: DECEMBER 29, 2022 TIME: 8:30 A.M. 2 at 393. That is not the situation here. Instead, a money judgment was entered against Keenan, and the bond is currently 1.5x that judgment amount, complying with CCP §917.1(b). As to including later ordered attorneys' fees and costs in the judgment amoun...

Excerpt: ...tute a preponderance of evidence that an essential element of the plaintiff's case cannot be established...” Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879. If defendant fails to meet this burden, its motion must be denied and plaintiff need not make any showing at all. Defendant can “show” that an essential element of plaintiff's claim cannot be established. This is done by presenting evidence that plaintiff does not possess and ...

Excerpt: ...hat statement. The closest she comes to alleging any intent to defraud is her allegation that LALLEMAND knew the probate notice was due at a certain time and “intentionally and knowingly did not do it”. (SAC ¶¶104‐108) Plaintiff's SAC: “104. Lallemand, an agent of Corman and CLO, did virtually nothing, or very little, of her own volition to begin trust administration. 105. January 30, 2019, attorney Parker, on the office speaker phone, ...

Excerpt: ...e causes of action against the moving party, Theta Chi Fraternity, Inc. (TCFI), for negligence (1st through 5t causes of action) based on various theories of direct, vicarious and alter‐ego liability (failure to manage and supervise; failure to use reasonable care; negligent undertaking; assumed duties; duty to prevent harm). TCFI moves for summary judgment, or in the alternative, summary adjudication of Plaintiffs' first, second, third, fourth...

Excerpt: ...on to strike, the opposition, the reply, and the requests for judicial notice. Defendant's motion to strike is denied. The Court did not find a basis for striking the requested portions of the first amended complaint pursuant to Code of Civil Procedure section 435 and/or 436. “Conclusory allegations are permitted where supported by facts and will not be stricken where they are supported either by factual allegations in the complaint.” (Weil &...

Excerpt: ... acquaint the defendant with the nature, source and extent of his cause of action.” Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156‐157. Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119. “The limited and statutory nature of governmental lia...

Excerpt: ...execution of the Agreement, or by August 28, 2022. While the Agreement allowed for a one time extension of not more than ninety days if required and requested by Tabatabai, this would only extend the time for payment to November 26, 2022. Tabatabai does not dispute that he has failed to make the Settlement Payment 1, and admits that he “did not formally request an extension” to make the payment. Instead he argues that (1) the Court lost juris...

Excerpt: ...foot Walkway fronting Plaintiffs' homes in favor of Plaintiffs, finding that neither the County nor the public have any interest in, or rights to use the Walkway. This determination effectively prevents the County from asserting that the Walkway had been dedicated for public use, which was the basis for its previous reliance on categorical exemptions from the mandates of CEQA (“maintenance of existing public facility”; “enforcement action�...

Excerpt: ...s, scores, interpretative materials, and anything else used but not produced.” Dr. Friedman has refused to turn over certain of these documents based upon the following: Cal. Code of Regs. Tit. 16 section 1396.3 and that the tests and results are “trade secrets” within the meaning of Cal. Civil Code sections 3426 through 3426.11 of the California Unform Trade Secrets Act. Further, Defendant contends Dr. Friedman has already produced respons...

Excerpt: ...tutional Right to Due Process Before Deprivation of Property, California Constitutional Right to Just Compensation for Governmental Taking by Inverse Condemnation – Meyberg against City and City employees: Demurrer is sustained with leave to amend. This cause of action incorporates over 35 paragraphs of facts, names 11 defendants, and attempts to incorporate four types of claims (violation of the right to petition government, violation of right...

Excerpt: ...n the amount of all reasonable and necessary defense costs, in addition to those normally awarded to the prevailing party. This includes reasonable attorney's fees, expert witness fees, and anything reasonably and necessarily incurred in defending the proceeding. “Reasonable cause” is to be determined objectively, as a matter of law, on the basis of the facts known to the plaintiff when he or she filed or maintained the action. Once what the ...

Excerpt: ...at[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ...." ' " (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) Alex Mohan‐Schulz, Camille Mohan‐Schulz, and Lee Schulz have brought this action against Defendant Irene Lowry, William Schulz, and Gobau, LLC. (First names will be used to avoid confusion as some of the parties share a last name.) There are five causes...

Excerpt: ...esponses to the following: 1. Form Interrogatories, Set One, Nos. 17.1 for her RFA response nos. 1‐8; 2. Special Interrogatories, Set One, No. 1; 3. Request for Production, Set One, Nos. 1‐7; 4. Request for Admissions, Set One, Nos. 1‐7. Timeliness: As Plaintiff correctly points out, the motions were served by email five (5) days late (hearing date of 12/9/22 required an electronic service date of 11/10/22). However, Plaintiff has filed opp...

Excerpt: ...dicially noticed by the court render the complaint meritless. McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 290. In addition to the facts pleaded, we may consider matters that may be judicially noticed, including a party's admissions or concessions which cannot reasonably be controverted. Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 989‐990. Privette doctrine: Plaintiff alleges negligence and negligent hiring causes ...

Excerpt: ...ough two drainage pipes, which are part of the County's drainage system (the “Drainage Pipe System”), to a downstream outlet located on property which is owned by the City; and (2) the City's failure to maintain the City‐owned area of the outflow. The County alleges that the City's failure to manage the flow of its water, and its failure to maintain the outflow area, caused the scouring and removal of road fill, which undermined the structu...

Excerpt: ...902, Defendants have a duty to report when a student engages in assault with a deadly weapon or certain drug offenses. Plaintiffs have plead such a mandatory duty; staff allegedly failed to report that student “K.O.” who fatally stabbed Gerardo, had brandished a knife and cut a different student just a week or so before and was on probation at the time of both incidents. (Complaint ¶¶19‐23) These facts at the pleading stage are sufficient...

Excerpt: ...ion for leave to file a First Amended Complaint to add a cause of action for intentional infliction of emotional distress is granted. Leave of court is required to amend any pleading except as provided by CCP §§472 and 474. A judge may, in furtherance of justice and on proper terms, allow the amendment of any pleading at any time, even after commencement of trial. CCP §473(a), 576; Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 488 ...

Excerpt: ... 7, 2022 TIME: 8:30 A.M. 3 (Baughman Decl. Ex. B) On 9/29/22, Defendant served verified Second Supplemental Responses to those interrogatories, providing a substantive response. (Beck Decl. Ex. H) Therefore, this motion is moot. REQUEST FOR PRODUCTION NOS. 22 THRU 33: This motion is granted provided the parties fashion a protective order that is acceptable to the Court. Plaintiff Beronio seeks all documents and communications related to any damag...

Excerpt: ...as it does not state facts sufficient to constitute a cause of action as the verification of the Writ is improper. “A demurrer can raise any legal defect apparent on the face of the petition. This could include the lack of any beneficial interest, the existence of an adequate remedy at law, or the failure to state a claim for relief.” (1 California Writ Practice (4th ed. 2021) §8.41.) Parties are permitted to plead in the alternative. In thi...

Excerpt: ...dment is not precluded by delay or prejudice to Defendant. Defendant's discovery response promised providing the vet records, Defendant failed to provide those records, and Defendant denied any aggressive tendencies by his dog at deposition. Plaintiff did not discover medical documentation as to Pip's aggressiveness until the discovery was obtained via a subpoena. Due to Defendant's dilatory conduct in providing vet records and in deposition deni...

Excerpt: ...be adjudicated in the United Kingdom. GFL and Carl then proceeded to litigate their claims in the High Court of Justice in the UK; and a final judgment was entered by that court on June 11, 2021. Mr. Carl now moves to lift the stay as to his remaining cross‐claim against GFL, for breach of a Supplemental Agreement; and as to his cross‐claim against Canepa Group, Inc. (Canepa), for negligent bailment. Mr. Carl also seeks to amend his cross‐c...

Excerpt: ...t was entered on August 11, 2022 and Mr. Sump's on August 15, 2022. Defendants filed this motion on October 12, 2022. “'Whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, [the court shall] vacate any (1) resulting default entered by the clerk...or (2) resulting defau...

Excerpt: ... be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California... (c)In case of service by another method of delivery providing for overnight delivery... any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document served by Express Mail or other method of delivery providing for overnight...

Excerpt: ...of Appeal, which affirmed the trial court's orders granting the employer's motion to compel individual arbitration of wage and hour claims and dismissing with prejudice the employee's representative claims and class claims under the Private Attorneys General Act. (PAGA), Lab. Code, § 2968 et seq., On 6/23/14, the CA Supreme Court reversed, finding that where an employment agreement compels the waiver of representative claims under the PAGA, it i...

Excerpt: ... Regents, the County immediately filed the Request for Hearing the next day, on September 21, 2022. The Regents move to dismiss the CEQA claims based on this mistake, asserting that filing the Request for Hearing by the statutory deadline is a jurisdictional requirement, and that dismissal is mandatory. The County seeks relief from its failure to file a timely Request for Hearing, requesting an order amending the proceedings and treating the Requ...

Excerpt: ...JOHN ELLIOTT TO REQUEST FOR PRODUCTION AND TERMINATING SANCTIONS The motions for special and form interrogatories are granted (the Court finds no previous motions to compel documents in the court file). The Court orders further monetary sanctions in the amount of $2,110.00 imposed against both Defendants and their attorney of record and strikes the Answers of Defendants Lisa Jewett and John Elliott. Defendants have engaged in extensive and willfu...

Excerpt: ...ty of the agreement. (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 48 [119 Cal.Rptr.3d 574].) The discrepancy here is whether or not the website www.mercercaverns.com including the domain name has been transferred to Plaintiff. Ms. DiBenedetto states in her declaration that the subject domain has been effectively transferred to Plaintiffs. (DiBenedetto Dec. ¶11) Mr. Rodriguez says, “It is disputed whether or not the defendan...

Excerpt: ...npaid debt totaling well under the jurisdictional limit of $25,000 (First Amended Complaint ¶4) • Plaintiff recorded a lis pendens that stated an “alleged breach of contract and real property claims” and that an active lawsuit was pending when it was not • Plaintiff recorded the lis pendens without any “real property claim” • Plaintiff has produced no lien, mechanic's lien, or note attached to the property that would require such d...

Excerpt: .... Code §56.20(c). Civ. Code §56.20(b) provides: (b) No employee shall be discriminated against in terms or conditions of employment due to that employee's refusal to sign an authorization under this part. However, nothing in this section shall prohibit an employer from taking such action as is necessary in the absence of medical information due to an employee's refusal to sign an authorization under this part. Plaintiff alleges that he was aske...

Excerpt: ... sent to Defendant at this same Scotts Valley address; On 3/30/22 Defendant's default was entered; and on 4/6/22 a Default Judgment was entered against Defendant for $4834.59. On 7/15/22 a Notice of Entry of Judgment was served on Defendant by mail, sent to the same Scotts Valley address. LAW AND MOTION TENTATIVE RULINGS DATE: NOVEMBER 17, 2022 TIME: 8:30 A.M. 3 Defendant now moves to set aside the judgment under CCP§473, based on mistake, inadv...

Excerpt: ...fn. 9 [35 Cal.Rptr.3d 206].) Next as to Petitioner's objections to Respondents' affirmative defenses, “In recent years great changes have been wrought by the code in the rules for the construction of pleadings. For sufficiency of the facts pleaded, courts look to substance, not to form. The basic principle of the code procedure is that the administration of justice should not be embarrassed by technicalities, strict rules of construction, or us...

Excerpt: ...ive equity was added to the amount Plaintiff financed for the Tiguan. (UDMF#4.) The purchase price for the Volkswagen Tiguan was $51,830.64. The amount financed was $45,349.04. Plaintiff paid $6,800 in cash at the time, as well. It is not disputed this amount was paid but rather what the payment went towards. Plaintiffs argue it went towards the down payment on the Tiguan. Defendants contend this cash went toward off‐setting the negative equity...

Excerpt: ...as “Notice of Entry of Order” and is dated 8/27/22. Plaintiffs fail to address this late filed proof in any declaration. Pursuant to California Rules of Court, Rule 8.108(c), a motion to vacate a judgment operates to extend the time to file a notice of appeal (and motions for attorneys' fees) to the earliest of: (1) 30 days after the court mails or a party serves an order denying the motion to vacate; (2) 90 days after the first notice of int...

Excerpt: ...irst cause of action, brought under CCP §1085, concerning “notice requirements”. The demurrer to this cause of action is sustained based on uncertainty. Petitioner has not opposed the demurrer to the second cause of action, brought under CCP §1085 for alleged due process violations based on evidentiary decisions. Petitioner has failed to state a cause of action, as evidentiary decisions are discretionary, and mandamus relief is unavailable....

Excerpt: ... purpose of that restriction, and no specified “view protection.” There are several other restrictions listed in the deeds that appear to be unenforceable and/or antiquated (for example, “there shall never be constructed or maintained on said property any residence costing less than $1500.00; [...] that no building on said property shall remain unpainted or unstained for more than 30 days except as to the portions thereof covered by shingle...

Excerpt: ...hich judicial notice has been taken. The court “construes the pleading in a reasonable manner and read the allegations in context. “Fremont Indemnity Co. v. Fremont General Corp., (2007) 148 Cal. App. 4th 97, 111. On a demurrer, a court's function is limited to testing the legal sufficiency of the complaint. “‘A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.'” Id at 114 citing, Ramsden v. W...

Excerpt: ...admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) State the number of the request; (b) State all facts upon which you base your response; (c) State the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) Identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and tel...

Excerpt: ...gs various challenges to the validity of the allegations made in the proposed amended complaint. These are not a basis for denying leave to amend, given the strong judicial policy favoring amendment. Any grounds for a demurrer or a motion to strike can be raised after leave to amend has been granted. Weil & Brown, Civil Procedure Before Trial, Rutter Group, §§6;638, 6:644. While a sham amendment that contradicts an earlier pleading is a basis f...

Excerpt: ...ssue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former...

Excerpt: ...alifornia Rules of Court, Rule 8.108(c), a motion to vacate a judgment operates to extend the time to file a notice of appeal (and motions for attorneys' fees) to the earliest of: (1) 30 days after the court mails or a party serves an order denying the motion to vacate; (2) 90 days after the first notice of intention to move or the motion is filed; or (3) 180 days after entry of judgment. (See also Rule of Court 3.1702(b)(1), time to file motion ...

Excerpt: ...alleges private and public nuisances have been created by speeding drivers outside of his home on Glen Canyon Road. Plaintiff alleges “[d]efendants are the owners and/or drivers in possession and control of certain motor vehicles driven in the recent past on Glen Canyon Road in Santa Cruz County past Plaintiff's home at excessive speed and recklessness.” (Plaintiff's Complaint ¶2). The defendants have “caused highly dangerous conditions to...