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...

Excerpt: ...to make their claims for breach of contract and breach of the implied covenant of fair dealing based upon their status as an insured. As to punitive damages, Plaintiffs' allegations that CAFPA failed over a lengthy period of time to perform its duty to investigate and adjust the claim, willfuly ignored evidence, and that such conduct was ratified by a managing agent are sufficient to support a claim for punitive damages at the pleading stage. (Co...

Excerpt: ...t of no other California authority on point. Further, Plaintiff is not entitled to statutory prejudgment interest since he failed to seek that relief from the jury (Civil Code §3288; Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 103) and failed to submit any CCP §998 offer and obtain a more favorable judgment (Civil Code §3291). Tax neutralization generally applies to cases in which several years of back wage...

Excerpt: ...ny information besides the individual account information for other non‐party consumers from the documents it has produced. If it hasn't and if the master purchase agreement and verification are served prior to or at the hearing, the motion to enforce court order as to RFP no. 3 will be denied. As to RFP no. 16, Plaintiff/Cross‐Defendant needs to identify the responsive documents it is producing responsive to the request, as required by Code ...

Excerpt: ...tential–merits and interim‐harm factors, and the greater the showing on one, the less that must be shown on the other. Id. at §9:531. A court should only grant a preliminary injunction if the plaintiff shows a “reasonable probability” that it would prevail at trial and would suffer more harm from a denial than the defendant would suffer from its grant. Robbins v. Superior Court (1985) 38 Cal.3d 199, 205‐206. However, it is an abuse of ...

Excerpt: ...oses of the underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil legal services to the indigent” (Code Civ. Proc., § 384 (b) or providing the name of an appropriate cy pres recipient. (If a proposed settlement does not expressly provide that fund not claimed by the class are retained by, or revert to, the defendant, Code of Civil Procedure section 384 requires payment of the residue to a cy pres...

Excerpt: ... Civil Procedure section 397 motion is not specified; however, a motion for change of venue based on convenience of witnesses must be made within a reasonable time after the answer is filed. What constitutes “reasonable time” lies primarily in the trial court's discretion. Weil & Brown, Civil Procedure Before Trial (the Rutter Group 2021) at section 3:559.5, citing Cooney v Cooney (1944) 25 Cal.2d 202, 208. “... [A] ‘reasonable time' depe...

Excerpt: ...his motion is granted. The Court's 7/22/22 Judgment states: “Based upon the initial two causes of action [breach of contract and breach of covenant of good faith and fair dealing], and the evidence presented, the Court will find in favor of the Defendant.” (Judgment, 5:8‐10) “This Court finds in favor of the Plaintiffs as to the Partition Cause of Action. Partition by Sale will be ordered. All parties will comply with their relative respo...

Excerpt: ...ation of his or her rights or duties with respect to another ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross‐complaint in the superior court for a declaration of his or her rights and duties ..." "The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject." Otay Land Co. v. Royal Indemnity Co. (2...

Excerpt: ... the court or abuse of discretion by which either party was prevented from having a fair trial. 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. 3. Accident or surprise, which ordinary ...

Excerpt: ... it never intended...When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. ..." To set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last, the mo...

Excerpt: ...incident. Plaintiff's initial response to both interrogatories was “unknown”. His amended response stated “not relevant or likely to lead to the discovery of admissible evidence because Plaintiff is not seeking past medical expenses as a component of his damages”. Defendant argues that since Plaintiff has not abandoned any claim for the costs of future care and medications, the amount he incurred in the past is probative of the amount he ...

Excerpt: ...t 5, and waiting beyond the 21 day safe harbor period to file the motion, on August 29, 2022. The Court further finds that Mr. Lindow's Motion for Return of Property violated §128.7(b)(1)‐(3), in that the allegations and factual contentions therein were without evidentiary support, and were in fact demonstrably false based on the April 17, 2017 transcript of the hearing before Judge Almquist in the Tabatabai's divorce proceedings; the legal co...

Excerpt: ...that an additional change Plaintiff seeks to make is the addition of “Breach of Contract” as to the CSAA and CEA Defendants under the Second Cause of Action heading. Plaintiff states she seeks to add an intentional infliction of emotional distress claims, based on facts already pleaded.” (Plaintiff's P&A's at p.3.) Plaintiff's counsel states “[a]fter reviewing Defendants' most recent motion for summary judgment and critically re‐analyzi...

Excerpt: ... only on the following conditions: (1) motion must be based on new or different facts, circumstances or law; and (2) the motion must be supported by a declaration showing ...what new or different facts or circumstances or law are claimed to exist.” Weil & Brown Civil Procedure Before Trial (the Rutter Group 2021) at §9:337; Code of Civil Procedure section 1008(b). In a personal injury or wrongful death case, the Code of Civil Procedure section...

Excerpt: ...tends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion. (c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that t...

Excerpt: ...e has done. It is improper to plead the evidence by which he plans to prove the ultimate facts, as Defendants seem to argue; and had Plaintiff done so that evidentiary matter would be subject to a motion to strike as “surplusage”. Weil & Brown, California Procedure Before Trial §6:127. The Demurrer itself does not comply with CRC 3.1320 (a), which requires that a demurrer state whether the ground asserted is to the entire pleading or to some...

Excerpt: ...at SIBANNIC had “applied for federal registrations for the mark” but SIBANNIC can't ignore the remainder of QLORA'S allegations in order to win at demurrer. The FACC and Ex. B clearly establish that QLORA entered into the agreement with an understanding that SIBANNIC could actually deliver a registered mark to them for exclusive use in California, yet SIBANNIC failed to have such a mark. (FACC ¶¶ 7‐67) SIBANNIC also argues that there was ...

Excerpt: ... and issuing the Notice of Determination. These combined actions are referred to herein as the “SHW Approvals”. The challenged SHW Approvals followed this Court's issuance of a writ in East Meadow Action Committee v Regents (19CV01312‐‐EMAC) directing the University to set aside its 2019 approvals of the SHW Project based on a finding that violations of CEQA had occurred in the 2019 approval process. Specifically, this Court found that th...

Excerpt: ...from a combination of Defendants' failures to provide decedent with adequate services to meet his basic medical needs, resulting in pain, suffering, a COVID‐19 infection, and ultimately death. (Complaint ¶10, 17‐19, 23‐27, 32‐33, 46‐52, 56.) The PREP Act immunizes "Covered Persons," "Program Planners," and "Qualified Persons" who affirmatively administer a covered countermeasure. Here, Plaintiffs' Complaint alleges that it was, in fact...

Excerpt: ...h in connection with a public issue.” Where a cause of action is “mixed,” and is based on both protected and non‐ protected activity, the entire cause of action may be stricken under §425.16 if the principal thrust or gravamen of the claim is protected activity. If the court determines that the defendant has made this threshold showing, the burden shifts to plaintiff to demonstrate a probability of prevailing on the claim, by showing tha...

Excerpt: ...on 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code. Cal Pub Util Code § 216 “Public utility” (a) (1) “Public utility” includes every ... telephone corporation... Cal Pub Util Code § 2891 Telephone and telegraph customer privacy; Consent to release of information a) No tel...

Excerpt: ...ths, after the judgment, dismissal, order, or proceeding was taken... Notwithstanding any other requirements of this section, the court shall, 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, vacate any (2) resulting default judgment or dismissal entered against his ...

Excerpt: ... of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. (b) The court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. (2) The admission sought was of no sub...

Excerpt: ... admission to be withdrawn or amended. Weil & Brown Civil Procedure Before Trial (the Rutter Group, 2021) citing Code of Civil Procedure section 2033.300(b). “Relief under Code of Civil Procedure Section 2033.300 is available for all admissions, and thus permits withdrawal or amendment of admissions deemed admitted for failure to respond as well as of admissions contained in an actual response.” 3 California Deposition and Discovery Practice ...

Excerpt: ...n for order allowing filing of supplemental complaint filed 5/16/22 and Walter Dec. filed 5/16/22, Ex. 1 ¶ 20) Cal Code Civ Proc § 464 Supplemental complaint and answer (a) The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer. “As a general rule, the right to file a supplemental complaint can be exerc...

Excerpt: ... grievance form. • While Garcia was giving a “group chat” to employees by telephone, another employee texted a slur about Garcia (“shut up gay ass bitch”); Garcia then called Plaintiff, showed disinterest in talking to the person who actually sent the text, and “basically told him he was fired”. Plaintiff told Garcia that he was going to file a grievance, but was fired before he could do so. • Garcia “hated” Plaintiff because ...

Excerpt: ...te, but no new fact discovery may be propounded. Any fact discovery already propounded but not complete (such as PMQ depositions) can proceed up to and including 30 days prior to the new trial date. Motions to compel related to discovery responses propounded on 9/6/22 shall be filed no later than 45 days from the verification date. MOTION TO COMPEL RESPONSES TO SUPPLEMENTAL WRITTEN DISCOVERY Plaintiffs' motion to compel is moot based on Defendant...

Excerpt: ...ny notice of contesting the 6/6/22 tentative ruling; (3) Even if Defendant knew of the 6/23/22 hearing, it would not have appeared because Plaintiff failed to provide any notice of contesting the tentative ruling; and (4) Plaintiff's underlying motion failed to contain any new facts or law. The legislative intent behind CCP § 1008 was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstanc...

Excerpt: ...mmediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers. A valid order and judgment of indirect contempt must cover the following elements: the issuance of an order, the contemnor's knowledge of the order, the contemnor's ability to obey it, LAW AND MOTIO...

Excerpt: ...ial court decides whether there is an agreement to arbitrate between the parties, and whether the agreement covered the dispute at issue. Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960. If Defendants meet their burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, the burden then shifts to Plaintiff: “a party opposing the petition bears the burden of proving by a preponderance of the ev...

Excerpt: ...tain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor. The intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintif...

Excerpt: ...allowing the admission to be withdrawn or amended. Weil & Brown Civil Procedure Before Trial (the Rutter Group, 2021) citing Code of Civil Procedure section 2033.300(b). “Relief under Code of Civil Procedure Section 2033.300 is available for all admissions, and thus permits withdrawal or amendment of admissions deemed admitted for failure to respond as well as of admissions contained in an actual response.” 3 California Deposition and Discove...

Excerpt: ...M. 2 Regents to file a formal disqualification motion. The City did so, and Judge Marigonda agreed to recuse himself pursuant to CCP §§170.3(c)(3) and 170.1(6)(A)(iii). The Regents have moved to set aside the tentative ruling issued by Judge Marigonda. That motion is granted. This Court has undertaken an independent review of the entire file, including the supplemental briefing filed by the parties pursuant to stipulation. However, based upon i...

Excerpt: ...tory traffic controls, and design immunity. Design immunity, if established at summary judgment, is a complete bar to liability. Here, City cannot establish design immunity's second element. Triable issue as to design immunity: To establish design immunity, City must show (1) the plaintiff's injuries were caused by a feature in the plan or design, (2) that the design was approved before construction by the appropriate legislative body or entity/p...

Excerpt: ...ily law court. The only remaining debt to Maleksalehi is the interest on the loan to Enabledware, a community asset which the family law court has assigned to Tabatabai. This interest is a community debt, and the business valuations and the equalization/distribution of community assets and debts of Tabatabai and Turner are issues that have been reserved by the family law court for final determination, and have yet to be decided. The Court does no...

Excerpt: ...Civil Procedure section 2033.420.” Weil & Brown Civil Procedure Before Trial (the Rutter Group) § 8:1405, citing Garcia v. Hyster Co. (1994) 28 Cal.App. 4th 724, 736; Wimberly v. Derby Cycle Corp., (1997) 56 Cal.App. 4th 618, 638. After reviewing the timeslips attached to Mr. Redenbacher's Declaration in Exhibit 1, the Court found a significant portion of the fees requested occurred before the request for admissions were denied by the Defendan...

Excerpt: ...of the declaratory relief cause of action in his Cross‐complaint filed on August 5, 2019. (See UMF 5, 6]. The motion is denied. The motion is procedurally defective The motion is procedurally defective, as (1) Browne filed an Amended Cross‐complaint on April 5, 2022 which superseded the original cross‐complaint—so the motion is not directed to the operative pleading; (2) Browne's motion seeks a judicial declaration which differs from the ...

Excerpt: ...f the SLVUSD, and as the author of Argument. Petitioner now seeks his attorney's fees against George Wylie under the private attorney general statute (CCP §1021.5). CCP § 1021.5 allows the Court to award or deny fees, in its discretion, in cases in which the prevailing party has not obtained a monetary recovery, if (1) the action has resulted in enforcement of an important right affecting the public interest; (2) a significant benefit, whether ...

Excerpt: ...W AND MOTION TENTATIVE RULINGS DATE: August 22, 2022 TIME: 8:30 A.M. 2 (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (c) As used in this section, the following definit...

Excerpt: ...f the SLVUSD, and as the author of Argument. Petitioner now seeks his attorney's fees against George Wylie under the private attorney general statute (CCP §1021.5). CCP § 1021.5 allows the Court to award or deny fees, in its discretion, in cases in which the prevailing party has not obtained a monetary recovery, if (1) the action has resulted in enforcement of an important right affecting the public interest; (2) a significant benefit, whether ...

Excerpt: ...dmission (which there is not), “the law in this state is clear that senile dementia does not render one incapable of executing contracts or transacting business.” Holman v. Stockton Savings & Loan Bank (1942) 49 Cal.App.2d 500, 508. Further, the legislature has delegated the authority to consent to arbitrate to the patient and their heirs without violating the state constitutional right to a jury trial. Ruiz v. Podolsky (2010) 50 Cal.4th 838,...