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...