Excerpt: ...nded complaint alleges facts that are sufficiently similar to those alleged in the original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading. The policy behind statutes of limitations is to put defendants on notice of the need to defend against a claim in time to prepare a fair defense on the merits. This policy is satisfied when recovery under an amended complaint is sought ...

Excerpt: ...avor of Ralph Partners on July 9, 2018 (RFJN Ex. 11). Plaintiffs' claim against Ralph Partners, as well as against Defendant Geiser who is alleged to be the alter‐ego of Ralph Partners, is therefore barred by judicial estoppel/res judicata. In addition, the FAC fails to allege any facts to support the claim of fraud, and therefore fails to state a cause of action against Defendants, and is uncertain. Defendants' RFJN is granted in its entirety ...

Excerpt: ...egularities in the sale notice or procedure, the borrower must offer to pay the full amount of the debt for which the property was security. The borrower must pay, or offer to pay, the secured debt, or at least all of the delinquencies and costs due for redemption, before commencing the action. “The rationale behind the rule is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in...

Excerpt: ...s to Defendant Larsh's co‐defendants, NFMG, Susan White and Anthony Tirri, and has expressly alleged that NFMG and Susan White, dba Susan White Chiropractic, Inc., were her joint employers; and that her employment contract, “which she understood to be between and her employer‐NFMG” was signed by Susan White, President of NFMG, “on behalf of NFMG”. However, Plaintiff has not alleged any facts giving rise to an employment relationship w...

Excerpt: ...he trial court's broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234‐235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.) In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action s...

Excerpt: ...avor of Ralph Partners on July 9, 2018 (RFJN Ex. 11). Plaintiffs' claim against Ralph Partners, as well as against Defendant Geiser who is alleged to be the alter‐ego of Ralph Partners, is therefore barred by judicial estoppel/res judicata. In addition, the FAC fails to allege any facts to support the claim of fraud, and therefore fails to state a cause of action against Defendants, and is uncertain. Defendants' RFJN is granted in its entirety ...

Excerpt: ...tion or a defense thereto. (CA CCP § 437c (p)(1)) LAW AND MOTION TENTATIVE RULINGS DATE: NOVEMBER 24, 2020 TIME: 8:30 A.M. 2 As set forth below, Defendant's objections to evidence are overruled. Moreover, because Defendant has failed to provide any references to any supporting evidence for each of the material facts he contends are disputed, he has failed to create a triable issue of material fact. (CA CCP § 437c (b)(3) & (c)) Judgment shall be...

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: ... obtain this information through formal discovery. In a case decided under the predecessor statute (Burkle v. Burkle, (2006) 141 Cal. App. 4th 1029, 1030) the court held that the trial court erred in denying a motion to compel the production of an LLC's financial records brought by the owner of a 1% interest. Both this case and common sense indicate that Plaintiff can obtain the information that she is statutorily entitled to through formal disco...

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: ...it card and does not appear to have anything to do with the breach of the 11/19/17 Lease of the wine tanks described in the Complaint. (Complaint First cause of action‐Breach of Contract attachment, paragraph BC‐1) Although CA Civil Code § 1642 provides that several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together, there is not clear and unequivocal...

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: ...ea for more than two years after he became a tenant. He began to clear a garden area in the backyard around the end of 2015 or beginning of 2016. Plaintiff's wife did not go into the back yard area because it was not “inviting”. Forbes‐Roberts Decl., ¶ 14, Exhibit C [N.GeorgeDepo.31:11‐16; 112:20‐24.] ForbesRoberts Decl., ¶. 5, Exhibit D [F.George Depo. 33:15‐34:01; 40:5‐41 :20] Forbes‐Roberts Decl., ¶13, Exhibit B (M. Day Depo...

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: ...conscious disregard of the probable dangerous consequences.” The court concluded that “[O]ne who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a LAW AND MOTION TENTATIVE RULINGS DATE: September 15 , 2020 TIME: 8:30 A.M...

Excerpt: ...redit card. By accepting and using the credit card Defendant agreed to the terms and conditions detailed in the Customer Agreement and Disclosure Statement. Plaintiff activated the card and made payments on the subject account. UMF 1, 2, 3. Plaintiff's declaration ¶¶ 6,7,8,9,12; Exhibits A, B and C. 2. Plaintiff kept an account of the debts and credits on the subject account and sent monthly statements to Defendant at the address he provided, w...

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: ...sues on these motions, including sanctions. The Parties are to file a joint statement five court days before the hearing in the format set forth in CRC rule 3.1345(c) as to any remaining issues, including sanctions. One of the points to be addressed in the joint statement (if the issue cannot be resolved between the Parties) is Defendants' offer to produce their personal phones for digital imaging provided that suitable controls such as limited s...

Excerpt: ...d the bar of the two year statute of limitations for breach of an oral agreement, on 2/19/20 Plaintiffs filed the FAC alleging Defendant breached a written contract on 2/21/16. Where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings, in these circumstances, the policy aga...

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...