Excerpt: ...derivatives for the purpose of injecting or infusing is a rendition of a service, not a sale. H & S §1606. Consequently, companies cannot be held strictly liable in tort for personal injuries which result from these activities. Plaintiffs have pled that “the stem cells that were manufactured from the amniotic fluid is not a “blood component” or “blood derivative” because it was not a product produced from whole blood”. TAC ¶20. Defe...

Excerpt: ...tential injury), and how to use the product to reduce or avoid the risks, to the extent that information is known to the manufacturer”. Buckner v Milwaukee Electric Tool Co.(2013)222 Cal. App 4th 522, 536. The “learned intermediary” defense does not appear on the face of the TAC, which alleges that “Dr. Lester reasonably believed that the intravenous administration of the stem cells to Mr. Reis was appropriate and pursuant to the FDA guid...

Excerpt: ...putation). (CA Practice Guide Civil Procedure Before Trial (TRG 2020) 6:158) The Second cause of action is also sustained without leave to amend. In order to justify an award of punitive damages on this basis, [conscious disregard of the safety of others] the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. (Taylo...

Excerpt: ...a Dec. Ex.'s 7‐ 12) Although Plaintiffs may not have properly served the discovery responses and the wording of the “verification” is not per Code, the documents requested appear to have been produced, the interrogatories answered, and provided to Defendant. The purpose of discovery is to bring out information which will lead to a just decision on the merits. The sanction of peremptory dismissal, without consideration of the merits, is fund...

Excerpt: ...ecause auditors are statutorily and strictly liable under §11 for any misstatements in the financial statements which they audited and certified, unless they can demonstrate due diligence at the summary judgment stage. Under post‐Omnicare authority PWC is not strictly liable for the misstatements in Granite's financial statements.. In Johnson v. CBD Energy, Ltd., 2016 U.S. Dist. LEXIS 87174, the court expressly rejected the same “strict liab...

Excerpt: ...t to four large joint venture projects. The Court previously sustained the demurrer to the original complaint and granted Plaintiff leave to amend to allege facts demonstrating that circumstances known to Defendants at the time they made the representation of “reasonably possible additional costs” made this a misrepresentation of an of existing fact at the time it was made; to allege what LAW AND MOTION TENTATIVE RULINGS DATE: APRIL 6, 2021 T...

Excerpt: ...na Theater, (1981) 118 Cal. App. 3d 863, 870.) It appears that were the Court to grant either Party's request for an injunction/ modified injunction, that both parties would suffer great injury. In order to preserve the status quo until there has been a final determination of the merits of the action, the Court requests counsel to address at the hearing whether it would be appropriate to appoint a receiver to sell the car and take possession of t...

Excerpt: ...tion, have given rise to a cause of action against that employee or his personal representative. Here, Plaintiff alleges that Newman was acting outside the course and scope of his employment which exempts him from the requirement of complying with the Government Claims Act. As to the argument that the allegation Newman was acting outside the course and scope of his employment was a conclusion of law unsupported by factual allegations, the demurre...

Excerpt: ...1.) The doctrine "precludes recovery for 'purely economic loss due to disappointed expectations,' unless the plaintiff 'can demonstrate harm above and beyond a broken contractual promise. (Martinez v. Welk Group, Inc. (S.D.Cal. 2012) 907 F.Supp.2d 1123, 1134.) Here, the duty that gives rise to tort liability is dependent on the contract. The Lease states at Clause 11, “pursuant to the Lease, Tenants will keep the premises clean, sanitary, and i...

Excerpt: ...e attorney. (Id at pp 178‐179) Therefore the work product privilege does not apply. The motion to compel is also granted as to form interrogatory 13.2. Interrogatory 13.2 merely asks for information re: whether a report was made and if so by whom, therefore disclosure is not protected by the attorney client or work product privileges. (Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68‐ 69.) Plaintiff is awarded sanctions against Defendan...

Excerpt: ... by the court, no demurrer having been sustained or being then pending. (CCP 586(a)(3). (6 Witkin CA Procedure (5th Ed.2008) PWT §§143,147) However, CCP § 587 requires that an application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant's attorney of record or, if none, to the defendant at his o...

Excerpt: ...between courts if they were free to make contradictory decisions or awards relating to the same controversy and preventing vexatious litigation and multiplicity of suits. The rule is established and enforced not "so much to protect the rights of parties as to protect the rights of Courts of coordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice." (Plant Insulation Co. v. Fibreboard Corp. (1...

Excerpt: ...3, *31.) The doctrine "precludes recovery for 'purely economic loss due to disappointed expectations,' unless the plaintiff 'can demonstrate harm above and beyond a broken contractual promise. (Martinez v. Welk Group, Inc. (S.D.Cal. 2012) 907 F.Supp.2d 1123, 1134.) Here, the duty that gives rise to tort liability is dependent on the contract. The Lease states at Clause 11, “pursuant to the Lease, Tenants will keep the premises clean, sanitary, ...

Excerpt: ...An award of attorney's fees is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken. CCP §916. In re Marriage of Sherman (1984) 162 Cal.App.3d 1132, 1140. Consequently, filing of a notice of appeal does not stay any proceedings to determine the matter of costs and does not prevent the trial court from determining a proper award of attorney fees claimed as costs. Attorney fees are perm...

Excerpt: ...e based on CCP § 394(a) is inapplicable. In addition, AMH has failed to show actual prejudice to the moving party or that a change of venue would promote justice or convenience of witnesses, therefore the motion is denied based on CCP § 397. Lastly, AMH has failed to show circumstances of the likelihood, or the appearance of bias and the motion is denied on this ground. Sanctions Sanctions are not awarded. Each side will reserve the right to cl...

Excerpt: ...pecified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Article 28 of the Lease provides that if either party undertakes litigation against the other in connection with the lease, the prevailing party as determined by Civil C. § 1717(b)(1) is entitled to reasonable attorney's fees and costs. In view of the Court's ruling that Plaintiff shall take nothing by its complaint and judgment shall iss...

Excerpt: ... in which he said he moved out of 211 Blackburn no later than 3/15/20 (Tim Kephart Dec. filed 2/24/21 ¶2) and his Cross‐complaint in which he said that he moved out of 211 Blackburn Street on or about June 2020, (Cross‐complaint filed 10/19/20 attached as Ex. 1 to Hamerslough Dec. filed 3/5/21 at ¶ 22), Tim Kephart will be ordered to pay Petitioner $3,000.00 rent for March ‐June 2020 or 4 x $3,000.00 = $12,000.00 within 30 days of the dat...

Excerpt: ...s filed that Margot Schwartz claimed that she and her brother were Directors of the Foundation. (See Ex. D to Margot Schwartz Declaration, the Corporation Statement of Information filed with the CA Secretary of State on 9/11/20 designating Margot and Noah Schwartz as officers and Erik Dryburgh as agent for service of process; email from Donald dated 10/22/20 asking Margot, “Do you have an attorney on the Schwartz Foundation”, Ex. H to Margot ...

Excerpt: ...rit and interim‐harm factors is tipped in favor of Defendants, who will suffer prejudice if an improper injunction is issued. Authority for issuance of the requested injunction CCP §526(a)(2) and (4) authorizes the issuance of an injunction where the moving party has an inadequate remedy at law or will suffer irreparable harm These two criteria are often related and may be present, despite the availability of monetary damages, where a defendan...

Excerpt: ...alistic prospect that the party enjoined intends to engage in the prohibited activity.” (Epstein v Sup. Ct. (2011)193 CA4th 1405, 1411) Based on the affidavits and the allegations in Plaintiffs' Complaint that “Through further communications between counsel, Defendants have modified their statement that they intend to block the Gravel Road as of 1/31/21, now claiming they will refrain from blocking the path temporarily, while Plaintiffs consi...

Excerpt: ...on‐Liability of Landlord: Tenant agrees to and shall defend and indemnify Landlord against all claims. liability loss and expense by reason of injury to person or property, or both. including without limitation. injury to the person or property of Tenant, its agents. officers, employees,. licensees or Invitees arising out of the condition of the Premises or any portion thereof over which Tenant has control and a duty to repair and maintain unde...

Excerpt: ... within the redemption period. Additionally, the three year limitations period on Plaintiff's inverse condemnation claim began to run no later than October 6, 2017, when the sale occurred, and Plaintiff did not file his complaint until October 22, 2020. Plaintiff's claim for inverse condemnation is therefore time barred under CCP §338(j). The court is not persuaded by Plaintiff's assertion that the five year statute of limitations period for adv...

Excerpt: ...VilaVet Labs (2016) (6 CA5th 1178, 1184). Based on the affidavits submitted, it appears that the status quo or the last actual peaceable, uncontested status which preceded the pending controversy was a gate to Plaintiffs' property unobstructed by mounds of dirt or mailboxes. Moreover, there is a reasonable probability that Plaintiffs will prevail on the merits at trial and that Plaintiffs would suffer greater injury if the injunction were not gra...

Excerpt: ...ohol, refused to take both a breath and a warrantless blood test. The court noted that the question of whether a motorist can be subjected to a license suspension for the failure to submit to a warrantless blood test is an open question, and therefore chose to “err on the side of caution” in affirming Espinoza's license suspension based only on her failure to take a breath test. Petitioner contends that this suggests that a license suspension...

Excerpt: ...speculate as to which causes of action the issues Defendants seek to have adjudicated relate, and as to which causes of action their UMFs are directed. Defendants have failed to meet their threshold burden of proof on their claim that Plaintiff does not have an easement under any theory Defendants have failed to meet their threshold burden of proof on their claim that Plaintiff does not have an express easement for access to its facility from the...

Excerpt: ..., breach of fiduciary duty and a cause of action entitled “dual representation”. Since the complaint still includes these causes of action summary judgment is not available to Plaintiff. Regardless, Plaintiff has either failed to meet his threshold burden of proof or triable issues of material fact exist as to several elements of his cause of action for fraudulent concealment: On the element of concealment of a “material” fact: Plaintiff ...

Excerpt: ...versity's sanctioning options range from dismissal to loss of privileges to restitution and probation. (Ex. G to Eklof Dec, pg.19 of 22) The primary remedy Plaintiff seeks through this action is damages, but there is no effective administrative remedy available to Plaintiff. Therefore, the demurrer is overruled on this ground. The demurrer to the First Cause of Action for violation of the Unruh Act (CA Civil Code § 51) is sustained without leave...

Excerpt: ... 2020; and (2) Labor Code §2780 now provides exceptions to the “ABC” test set forth in Dynamex Operations W., Inc. v Superior Court (2018) 4 Cal. 5th 903, for determining whether a worker is an employee or an independent contractor.; and the exception set forth in §2780 (I) for “independent radio promoters” applies to Plaintiff. The Second Amended Complaint alleges that Plaintiff stopped working at KCSO in May 2020, four months before L...

Excerpt: ...sale is voidable because of irregularities 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 bee...

Excerpt: ...n (FAC ¶25). Unlike the case or controversy limitation on federal court jurisdiction, which requires that the plaintiff have a personal stake in the outcome of the controversy, state court jurisdiction has no such limitation. Singleton v Wulff (1976) 428 U.S. 106, 113‐116. Instead, a plaintiff challenging a legislative or executive action in a California court must only show that “he or she is sufficiently interested”. Weatherford v City o...

Excerpt: ...the “litigation exception” set forth in 18 USCS § 2721 (b)(4) (“the Act”), does not entitle Petitioner to the information he seeks. (Petition p. 4:6, Motion p.5:17) The US Supreme Court has directed that the exception is to be construed narrowly: the “exception to a “general statement of policy” is “usually read . . . narrowly in order to preserve the primary operation of the provision”. (Maracich v. Spears (2013) 570 U.S. 48, ...

Excerpt: ...ons Petitioners assert that this action is not barred by the claims splitting doctrine and res judicata, because the Dependency Count did not adjudicate the issue of whether Director Timberlake's decision was arbitrary, capricious and lacking in evidentiary support. However, both actions involve the same ultimate issue: the validity of the Department's final decision; both actions involve the same primary right: the Petitioner's custodial relatio...

Excerpt: ...ble to give a knowing and intelligent consent due to a concussion suffered in the accident which preceded his arrest. The hearing officer's rejection of this contention is supported by the evidence— specifically the arrest report and supplemental report, which indicate that Petitioner was responsive, answered Officer Vasquez' questions, and gave oral consent to a blood test. Petitioner presented no medical evidence to support his contention tha...

Excerpt: ...is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. These rules are applied liberally in favor of discovery and (contrary to popular belief), fishing expeditions are permissible in some cases. (Stewart v. Colonial Western Agency, Inc. (2001) 87 C...

Excerpt: ...fendants on their claim that Plaintiff is in breach of the MIPA, these obligations will remain unaffected. The court therefore finds that the issues involved in Plaintiffs' 6th c/a for declaratory relief with regard to the Exchange Interests and Rights for the Pledged Securities are severable from the issues involved in the arbitration. Pursuant to CCP Section 1281.4 the court exercises its discretion to limit the stay and permit Plaintiff to con...

Excerpt: ...rden of showing there is no other plain, speedy and adequate remedy. According to the Declaration of Dylan Fukai, on 10/21/20, the County informed Petitioner that his writ of execution would be enforced as soon as a court clerk transferred his existing writ onto the updated EJ‐130 form. Moreover, the County filled the new form out for him and instructed him how to obtain a new writ. (Declaration of Dylan Fukai, ¶ 3, Exhibit A.) Petitioner's ar...

Excerpt: ...r the position that this allegation is required for a common counts claim based on a quantum meruit theory. However, E.J. Franks Construction, Inc. v Sahota is an appeal from a judgment, not a demurrer, and involves issues of proof not pleading. Plaintiff does not cite any authority for the position that a common counts claim is inadequately pled unless it includes this specific allegation. Plaintiff/Cross‐defendant demurs on the further basis ...

Excerpt: ...suffer emotional distress, knowing that plaintiff was present when the conduct occurred; (3) that plaintiff suffered severe emotional distress; and (4) that defendant's conduct was a substantial factor in causing plaintiff's severe emotional distress. (CACI 1600.) A defendant's conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. Liability for intentional infliction of emoti...

Excerpt: ... element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action. (p) For purposes of motions for summary judgment: (2) A defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defend...

Excerpt: ...reement, and not as a trustee or in furtherance of its mission under its Articles of Incorporation. CFSC may therefore sue Encompass on the Services Agreement for breach of its fiduciary duty (1st c/a) and for breach of the Services Agreement (2d c/a) under an agency theory. The court is not persuaded by Encompass' assertion that a trustee cannot sue a beneficiary even if the subject of the lawsuit is unrelated to the trust. Encompass' reliance o...

Excerpt: ...is four years. Defendant's failure to make distributions and to provide the profit and loss statement followed by his denial of the contract (i.e. repudiation) in the 7/14/15 letter constituted a total breach of the agreement. “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. A plaintiff need no...

Excerpt: ...he same grounds instead of moving to strike the new and improper allegations/argument, the County has essentially invited the court to reconsider the prior ruling. To the extent that the court is now required to engage in such reconsideration, without adherence to the jurisdictional requirements set forth in CCP §1008, the court will exercise its inherent authority to do so pursuant to Le Francois v Goel (2005) 35 Cal 4th 1094. On reconsideratio...

Excerpt: ...d cause of action for wrongful foreclosure which is barred by Res Judicata. (see further discussion below) LAW AND MOTION TENTATIVE RULINGS DATE: JANUARY 4, 2021 TIME: 8:30 A.M. 2 The demurrer to the First cause of action for breach of contract is sustained without leave to amend for Plaintiff's failure to allege a contract and her performance. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745; Goodman v. Kennedy (1976) 18 Ca...

Excerpt: ... and attorneys have a duty of loyalty to their clients. Thus, while an attorney must represent his or her clients zealously within the bounds of the law a broker only needs to use reasonable care to represent his or her client. (Kotlar v. Hartford Fire Ins. Co. (2000) 83 Cal.App.4th 1116, 1123.) Plaintiff has failed to plead that Defendant failed to obtain insurance at the best possible price; ( Westrec Marina Mgmt v Jardine Ins. Brokers (2000) 8...

Excerpt: ...rbitrate between the parties (The trial court is to decide two “gateway issues” of arbitrability: (1) whether there is an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960.), the Court finds that Defendants have met their burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. The Decla...

Excerpt: ... no right to discovery in this Superior Court action and the Request was premature as the Court had not ruled on the Responding Party's Petition to Compel Arbitration. MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES FROM RAMOS The motion to compel further responses to Special Interrogatories Set One is granted. Mr. Ramos is ordered to serve verified responses to Connellys' Special Interrogatories Set One within 30 days of service of...

Excerpt: ...not disputed that Plaintiff delivered all of the originals of the documents at issue (Exhibits 3‐13 to the Amended Complaint) to Mr. Paetkau in August 2017; nor have they provided applicable authority for their assertion that Plaintiff is not entitled to use copies of these documents in this litigation, or that the documents should be sealed. In support of their claim that Plaintiff's “self‐help evidence gathering” is inappropriate, and t...

Excerpt: ...ling on the contract within the meaning of Section 1717 of the Civil Code.” (Notice of motion p.2:2) However, the motion to compel arbitration in case No. 18CV00897 was denied without prejudice; the Court's order says,“ A request for an order compelling arbitration has also been brought by the identical party in the earlier filed action [Case No. 18CV00848] and that action is more complex because of issues related to additional parties who ma...

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...

Excerpt: ...in the court's discretion constitute a sufficient ground for denying the motion. Cal Rules of Court, Rule 3.1350 Motion for summary judgment or summary adjudication: (d) Separate statement in support of motion (1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. Here, Defendant's...

Excerpt: ... and fence on their easement; (2) require Petitioners to either remove the gate and fence or apply for a Coastal Development Permit (CDP); and (3) impose civil penalties if Plaintiffs refuse to remove the gate and fence to allow public access to Twin Lakes State Beach. Petitioners seek a writ of mandate directing the County and the Coastal Commission to (1) withdraw demands for the retraction of their LAW AND MOTION TENTATIVE RULINGS DATE: July 3...