Excerpt: ... is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement that party bears the burden of producing evidence and proving by a preponderance of the evidence any fact necessary to that defense. Rosenthal v Great Western...

Excerpt: ...ion for negligence, for failure to file a timely government tort claim; and is denied as to the causes of action for equitable indemnity, apportionment of fault and declaratory relief. Summary judgment/adjudication as to Plaintiffs' complaint The City moves for summary judgment/adjudication as to Plaintiffs' complaint on the following grounds: • Inverse condemnation: (1) Plaintiffs cannot establish the “public project” element of this claim...

Excerpt: ... manufacturer furnishing finished products, materials, or articles of merchandise who does not install or contract for the installation of those items) the O'Bannon declaration says he delivered various items to the jobsite. (O'Bannon Dec. filed 7/16/21 pg.1:26) In addition, the contract is for building the cabinets, not installing. It says on the bottom of the contract, “No install quoted”. (Ex 1 to complaint) Because Plaintiff did not insta...

Excerpt: ...quasi‐specific performance of contract to make will/trust; (7th c/a) declaratory relief; (8th c/a) quiet title; (9th c/a) slander of title; (11th c/a) reclamation of decedent's property; and (12th c/a) false promise Defendants assert that Plaintiff's claims all arise from the Warranty Deed which the decedent, Don Harris Lee, executed on October 29, 2012 and recorded on November 5, 2012; that as the transferee Plaintiff had knowledge of the Warr...

Excerpt: ...il Procedure Before Trial§ 8:2235) Plaintiff is ordered to provide the discovery responses subject of this Court's orders filed 3/16/21 (RFP's, form and special interrogatories) within 15 days of service of this order. In addition, further proceedings by Plaintiff are hereby stayed until the orders for discovery filed 3/16/21 are obeyed. Defendants are awarded further monetary sanctions in the amount of 8 hours x $260.00/hour =$2,080.00 against ...

Excerpt: ...onditional acceptance for value for proof of claim upon DCSS services contract for determination of meeting of the minds, fraud of the contract and/or unconscionable contract and/or agreement for commercial discharge”, “Notice of Fault [sic] and opportunity to cure and contest acceptance”, “Affidavit of notice of default”, and “Certificate of non‐response” are not contracts. “All that is required of a plaintiff, as a matter of p...

Excerpt: ... allegations do not suffice." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. The pleading should be sufficient '"to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud." ' " (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216‐217). Thus, a plaintiff must plead facts which show how, when, where, to whom, and by what means ...

Excerpt: ...d 95].) The findings of the adjudicatory agency are presumed to have been supported by substantial evidence. The petitioner in an administrative mandamus proceeding bears the burden of establishing that the agency's decision was invalid and should be set aside...The reviewing court must resolve reasonable doubts in favor of the administrative findings and decision." "[We] may reverse an agency's decision only if, based on the evidence before the ...

Excerpt: ...of the CSA.. Amendment No. 2 to the 2005 LRDP has not been ordered set aside or rescinded by the University. Plaintiffs' claim based on the approval of Amendment No. 2 therefore presents a live and justiciable controversy. The motion to strike portions of the Second Amended Complaint is granted in part, and denied in part, as follows: 1. The motion to strike Plaintiffs' claims challenging the University's 2019 approvals of the SHW Project (the ap...

Excerpt: ...pital Dist. (1992) 2 Cal.4th 962, 966‐967.) No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on a demurrer. (Weil and Brown CA Practice Guide (TRG 2021) Civil Procedure Before Trial § 7:44) Turning to whether the inconsistent allegations of the SAC should be disregarded under the sham pleading doctrine, Plaintiff may plead alternative bases for recovery (4 Witkin CA Procedure (5th...

Excerpt: ...t acted with discriminatory animus or intent; a defendant is liable if he or she interfered with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion. The word “interferes” as used in the Bane Act means “violates.” The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, intimidation or coercion”), tried to or did prevent the plaintiff from doing somet...

Excerpt: ... in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced'". The exception promotes the policy of guaranteeing citizens the opportunity to ensure that no governmental body impairs or defeats the purpose of legislation establishing a public right. (Green v. Obledo (1981) 29 Cal.3d 126, 144.) Petitioners has the “public interest” of all citizens of Santa Cruz County t...

Excerpt: ... here, because both actions are proceedings in personam. Gregg v Sup. Ct. (1987) 194 Cal. App. 3d 134,137. The court finds that the discretionary factors which the court is to consider do not “weigh strongly” in favor of a stay, as required by Farmland Irr. Co. v Dopplmaier (1957) 48 Cal. 2d 366. There is at least some question as to whether this action and the federal court case, Police Retirement System of St. Louis v Granite Construction I...

Excerpt: ...rden, the burden shifts to the plaintiff to show that a triable issue of one or more 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. LAW AND MOTION...

Excerpt: ...s have been alleged here to constitute a cause of action against Jakob Laggner, Nicole Laggner, and Reefside Health Center. Turning to the Second cause of action for breach of contract, the reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded (Aubry v. Tri‐City Hospital Dist. (1992) 2 Cal.4th 962, 966‐967) The Amended Option Agreement is between ICG, its subs...

Excerpt: ...spital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713.) Malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. The adjective “...

Excerpt: ...2, 966‐967) 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.) The question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children's Television, Inc. v. General Food...

Excerpt: ...tificates of compliance. [Defendant's RFJN Exhibits B,C, and D]. Pursuant to Health & Safety Code §25404.1.2(a)(2) this creates a rebuttable presumption that the violations were classified as “minor”. [“In any proceeding concerning an enforcement action taken pursuant to this section, there shall be a rebuttable presumption upholding the determination made by the UPA regarding whether the violation is a minor violation.”] The complaint f...

Excerpt: ...es of action. The City asserts that it is not seeking reconsideration of that ruling, but includes these causes of action in its demurrer only to preserve appeal rights. The prior ruling therefore stands. II. The City's general demurrer to the new causes of action The Third Amended Complaint asserts four new causes of action, entitled Taxpayer Suit/Citizens Suit/Public Interest Suit/Injunction” (3 rd c/a); Declaratory relief cause of action (4t...

Excerpt: ...erification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant”. When Plaintiff appeared at the May 25 hearing on that motion the Court ordered her to provide code complaint verifications by June 4, 2021. Plaintiff was served with a Notice of Entry of the written Order on June 11, 2021, after the deadline for providing the verifications had expired. [T]wo facts are a...

Excerpt: ...ourt further finds that Petitioner's declaration fails to comply with CRC 3.1324(b), as it does not state which three new causes of action have been added, or their effect; does not fully LAW AND MOTION TENTATIVE RULINGS DATE: July 27, 2020 TIME: 8:30 A.M. 2 state why the addition of 169 paragraphs are necessary; and does not state when the facts giving rise to the SAP were discovered, or why Petitioner did not file her motion earlier. Finally, t...

Excerpt: ...ween Watsonville Cadillac Buick GMC and Defendant. Plaintiff has further established that the RISC was assigned to Plaintiff. Parties can agree to delegate to the arbitrator the decision on threshold or “gateway” issues of the validity, enforceability and scope of an arbitration agreement, as long as two conditions are met: (1) the language of the delegation is “clear and unmistakable”; and (2) it is not subject to revocation under standa...

Excerpt: ...of the Statement of Decision in Case No 19CV03692 confirms that Plaintiff's claim for injunctive relief in that action was litigated through trial, and that Plaintiff's post‐trial attempt to amend the complaint to remove and/or strike the claim for injunctive relief was denied. A second action for damages is barred under the doctrine of res judicata where the first suit did not seek purely declaratory relief, and the second suit was based on th...

Excerpt: ...at they do not have the ability to satisfy the bond requirement, (Barragan Dec. filed 6/9/21¶ 18), the Court will use its equitable powers and set the bond amount at one half the amount of the judgment. $908,097.67 ÷2= $454,048.83. Defendants may apply (or may be credited for) the $130,520.52 in funds levied in Defendants' Chase Bank Accounts pursuant to Plaintiff Valley Fresh Produce Inc.'s Writ of Execution. Therefore, in addition to the $130...

Excerpt: ...tories which request private financial information from Mr. Tabatabai which is unrelated to his interest in Enabledware and/or the value of that interest”. The Court's tentative decision further stated that it would only entertain a further motion to compel a response to the interrogatories “ upon (1) a showing that the parties have met and conferred in good faith; and (2) the identification of the specific interrogatories which remain in dis...