Excerpt: ...al. 3d 920, 939. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530. However, liberality of pleading does n...

Excerpt: ... in situations in which a lawsuit might not otherwise be economically feasible. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817. This fee shifting is only available in those cases in which the buyer prevails. Civil Code § 1794(d). What 2 it means for a buyer to prevail is not defined under the statute, but case law is instructive: …if the particular fee‐shifting statute does not define prevailing pa...

Excerpt: ... to the Motion. 7 Meet and Confer. The parties both provide support for meet and confer efforts, which included a meet and confer letter sent by Plaintiff on July 28, 2020. On August 4, 2020, Defendant agreed to provide an amended response to Special Interrogatory No. 3. The amended response was served on August 18, 2020. On September 14, 2020, Plaintiffs sent another meet and confer letter expressing their dissatisfaction with the amended respon...

Excerpt: ...able are restricted to only those costs that are both reasonable in amount and reasonably necessary to the conduct of the litigation. CCP § 1033.5(c)(2)(3). The Court has the power to disallow costs, even those allowable as a matter of right, if they are not reasonably necessary or in a reasonable amount. Perkos Enterprise, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245. Here, Plaintiff seeks to tax the $1,420 in costs listed under “Ot...

Excerpt: ...s a result of the further meet and confer efforts the only remaining issues are Form Interrogatories, 2.3, 2.4, 11.1 and 12.4. Joint Statement: At the last hearing on this motion, the Court ordered the parties to file a joint statement 5 days prior to this continued hearing detailing the remaining issues, if any, remaining in dispute after further meet and confer efforts. The parties have not done that. Instead, the moving party filed a “Joint ...

Excerpt: ...RANTED. Merits of the Motion. The party moving for summary judgment bears the initial burden to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. There is a genuine issue of material fact 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 standar...

Excerpt: ....10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.App.4th 435, 438. No matter how unlikely,...

Excerpt: ..., there was no opposition to the merits or objection to timeliness of the service. However, on September 3, 2019, the County moved to set aside that order. A hearing was set for this set aside motion, before Judge Ryan, on September 23, 2019. The criminal defendant appeared in Court on September 9, 2020 at which time Judge Ryan ordered the bond reinstated and exonerated. Judge Ryan also vacated the County's motion to set aside the order. The Coun...

Excerpt: ...f is correct. In its decision, the court used January 15, 2019 at the cutoff date for liquidated damages because that was the date the Court determined from the evidence that the Defendant “…was precluded from doing further work on the project…” Upon further review, it appears that date may actually be January 21, 2019 as Plaintiff argues. If this is accurate, actual liquidated damages would be $9,000 (45 days @ $200) instead of $7,800 (3...

Excerpt: ... as inadmissible under People v. Sanchez (2016) 63 Cal.4th 665. Dr. Luce establishes that his opinion is based on his personal experience as a physician, as well as his review of the medical records in this case. While it is true that he does not appear to have directly spoken to anyone involved in the Plaintiff's treatment, he does have knowledge of the course of treatment based upon his review of the medical records. Additionally, Plaintiff's o...

Excerpt: ...ause of action alleged against her (negligent misrepresentation) on the undisputed fact that she owned no duty to Plaintiffs and there was no misrepresentation that caused them harm. Objections: Objection 1: Sustained, lacks foundation and personal knowledge. Objections 2‐10: Sustained, hearsay, lacks foundation and personal knowledge. Objection 11: Overruled. Objection 12: Overruled. Objection 13: Overruled. Objection 14: Overruled. Objection ...

Excerpt: ...le trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Id. at 845. The Court's sole function on a motion for summary judgment is issue‐finding, not issuedetermination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” CCP § 437c(c). If the moving party does not meet the burden the motion...

Excerpt: ... declaration. Defendant's motion sets forth some meet and confer efforts, although the parties clearly were not working together in the spirit of resolving the issues. Nor is there a declaration regarding Defense counsel's efforts to contact Plaintiff to address the nonappearance as required under CCP §2025.450(b)(2). In Clement v. Alegre (2009) 177 Cal. App. 4th 1277, the California Court of Appeal for the First District, when faced with a simi...

Excerpt: ...o remediate the dangerous condition of the property for over three years. The first citations issued in March of 2017. Since that date, the condition of the property has grown progressively more dangerous. Dozens of calls for service have been associated with the property, including at least one fire. Despite the passage of a reasonable time, Defendant is unwilling or unable to bring the property into compliance with all the applicable code secti...

Excerpt: ... of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.” Unruh‐Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (internal citations omitted). See also California Evidence Code section 450. While the Court will grant the r...

Excerpt: ... that a “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 the moving party is entitled to a judgment as a matter of law.” On September 3 14, 2020, after the filing of the Motion for Summary Judgment (filed on July 15, 2020), Plaintiff dismissed a number of the causes of action involving defendant Daniel Lockwood. The remaining causes of action against...

Excerpt: ... of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.” Unruh‐Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (internal citations omitted). See also California Evidence Code section 450. While the Court will grant the r...

Excerpt: ... that a “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 the moving party is entitled to a judgment as a matter of law.” On September 3 14, 2020, after the filing of the Motion for Summary Judgment (filed on July 15, 2020), Plaintiff dismissed a number of the causes of action involving defendant Daniel Lockwood. The remaining causes of action against...

Excerpt: ...ant. 5 Motion to Strike Standard: A motion to strike can be used to attack the entire pleading, or any part thereof, including single words or phrases. Stearns Ranchos v. Atchison Topeka & Santa Fe Railway (1981) 19 Cal.App.3d 24. It is proper for the Court to strike any irrelevant, false or improper matter. CCP § 436(a). The Court can also strike any part of a pleading that is not drawn or filed in conformity with California law. CCP § 436(b)....

Excerpt: ...ent person” would do in the same situation. Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354. The discretion granted by section 473(b) is liberally construed. The public policy preference for trial on the merits favors resolving doubts in favor of the moving party and relief should be granted except in cases of clear insufficiency of the “excuse” or unjustified delay in bringing the motion to the other party's preju...

Excerpt: ...use may include “[a] party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” CRC Rule 3.1332(c)(6). In determining whether to grant or deny a motion to continue, the Court considers a number of factors, as outlined in CRC 3.1332(d). Here, trial is not set until January, some four months from the motion date. No party has previously requested a continuance. The correspondence fi...

Excerpt: ...he Request is unverified and unsupported by a declaration. Therefore there is no evidence before the Court upon which to grant the request. Additionally, the Court finds that the Request, even if it had been supported by evidence, fails to provide grounds for a continuance under CCP §437c(h) and CRC 3.1332. The Court will therefore proceed and issue a ruling on the merits. Summary Judgment Standard: CCP § 437c states a motion for summary judgme...

Excerpt: ...ions 452, 452, and 453. That request is GRANTED. Merits of the Motion. As a preliminary matter, the motion was timely filed and served. Under CCP § 438(c)(1)(B)(2), a party may bring a motion for judgment on the pleadings on grounds that the complaint fails to state facts sufficient to constitute a cause of action against the moving defendants. The grounds for the motion must appear on the face of the challenged pleading(s) or be based on facts ...

Excerpt: ...endant Palo 2 Cedro Community Guild. (hereinafter “Defendant”) did not provide full and complete responses. Defendant has filed an Opposition to the Motion. Meet and Confer. The parties both provide support for meet and confer efforts, which culminated in a meet and confer letter sent by Plaintiff on the evening of August 5, 2020 requesting a response by August 7, 2020. Within that very narrow window, Defendant provided a response and left op...

Excerpt: ...1, 12.4, 12.6, and 12.7. He also seeks further responses to the Request for Production, Nos. 1, 6, 11, 16, 17, 20, 22 and 26. Plaintiff Spurgeon, through counsel, has agreed to produce further responses to interrogatory Nos. 2.5, 2.6, 6.2, 6.3, 6.7, 8.1, 11.2, and 12.6. Spurgeon has also agreed to provide a supplemental response to Request for Production No. 26. The evidence before the Court is that the agreed upon further responses have not been...

Excerpt: ... 21, 2015 and August 14, 2020, and/or the Rest Break Subclass between July 27, 2019 and August 14, 2020. They assert causes of action for failure to provide rest and meal periods, failure to reimburse expenses, failure to properly accrue and carry‐over sick leave and for penalties pursuant to various Labor Code 2 violations related to the alleged violations. The proposed settlement provides for a maximum Gross Settlement Amount (GSA) of up to $...

Excerpt: ...f Shasta at the Department of Child Support Services. The Court does not believe Judge Wood's spouse or step‐daughter has any involvement in the investigation, management, prosecution or defense of this case but does disclose the employment relationship between County of Shasta and the Court's first degree relative as required by California Code of Judicial Ethics, Canon 3E(2). Tentative Ruling on Plaintiff's Motion to Reopen Discovery: Plainti...

Excerpt: ...arty may object by demurrer on the ground that “[t]he pleading does not state facts sufficient to constitute a cause of action.” CCP § 430.10(e). A meet and confer declaration has been provided, as required by CCP § 430.10. The Fifth Cause of Action alleges slander of title specifically caused by the 2015 Easement Deed. The elements of the tort of slander of title are (1) a publication, (2) without privilege or justification, (3) falsity, a...

Excerpt: ... that would resolve the objections to be raised in the demurrer.” The Declaration of Ashley Arnett, submitted in support of the Demurrer, shows sufficient efforts between the parties to meet and confer. Merits. The purpose of a demurrer is to test the legal sufficiency of a pleading. Code Civ. Proc. §§ 422.10, 589. A party may object by demurrer on the ground that “[t]he pleading does not state facts sufficient to constitute a cause of acti...

Excerpt: ...t: The notice of motion for a motion to consolidate must be filed in all cases sought to be consolidated (CRC 3.350(a)(1)(B)) but the memorandum and evidence only need to be filed in the lowest case number. The notice of motion was not filed in the subrogation litigation (Case No. 193051). No objection has been raised to this defect. Despite the defect, it appears that all parties in both actions were served with the notice and motion. Without an...

Excerpt: ...erance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, . . . or of any separate issue . . . , preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” The Court has discretion to sever a statute of limitations defense raised in the answer, and try that defense first. Aerojet...

Excerpt: ...ness of documents specified in the requests admitted. CCP § 2033.280(b). Failure to respond also waives any objections to the discovery propounded. CCP § 2033.280(a). Defendant's moving papers sufficiently demonstrate that the plaintiff has failed to respond to Defendant's Request for Admissions within the required time frame. The Motion is GRANTED. CCP § 2033.280(c) requires that sanctions be imposed where a party fails to timely respond to a...

Excerpt: ... to the Judicial Council, by e‐mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees. While the parties may have done so, there is no evidence in the file that either party complied with this re...

Excerpt: ...ctions Defendants have asserted as to the Declaration of David Jackson. Some of the factual assertions are clearly contradicted by undisputed evidence offered in support of the motion and some of the opinions do indeed appear to be speculation and conjecture. However, adequate foundation is established to qualify this witness to opine concerning the standard of care associated with school administration, including the implementation and use of al...

Excerpt: ...) permits a party propounding discovery demands to “move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete.” A motion brought under this section must include a declaration describing efforts to meet and confer in good faith. CCP § 2031.310(b)(2). CCP § 2031.310(h) provides that the court “shall impose a monetary s...

Excerpt: ...t or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response...

Excerpt: ...o be done by a party.” Generally speaking, in the context of continuances, good cause includes a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts. CRC Rule 3.1332(c)(6). Plaintiffs in this case have moved to continue on the basis of ongoing health problems, exacerbated by the COVID‐19 pandemic. Both plaintiffs have surgeries that have been rescheduled for July and August, ...

Excerpt: ...0.41(a)(3). Defendant did not submit a meet and confer declaration in support of the present demurrer. Defense counsel is admonished for failing to comply with the meet and confer requirement. Typically the Court would continue a demurrer if the meet and confer requirement has not been satisfied; however, based on the papers, continuing the matter to meet and confer does not appear likely to result in a resolution and therefore the Court will iss...

Excerpt: ...itute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deduc...

Excerpt: ...plaintiff, and shall render judgment in the plaintiff's favor for that relief, not exceeding the amount stated in the complaint. Ibid. In hearing the evidence, the Court in its discretion may permit the use of affidavits in lieu of personal testimony. CCP § 585(d). However, the facts stated in the affidavit or affidavits are required to be within the personal knowledge of the affiant and must be set forth with particularity, showing affirmativel...

Excerpt: ...efore the depositions (previously noticed for May 25, 2020 in Sacramento, California) are outside the geographical limitations established by CCP § 2025.250(a). Pursuant to CCP § 2025.260, the Court may, in the interest of justice, order that a party's deposition be taken at a more distant location than that permitted under CCP § 2025.250(a). As to the specifics of this case, the Court also finds that there was no stipulation for either Defend...

Excerpt: ...inst a health care provider based upon such person's alleged professional negligence.” The one‐year period runs from the date “the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.” Ibid. The one year statute applies to other causes of action that arise out of the same facts as professional negligence. Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347. In deciding wheth...

Excerpt: ...aintiff's emotional distress claims. It propounded discovery seeking information from January 2015 to the present. Plaintiff provides substantive responses but limited the timeframe. Defendant also seeks to compel Plaintiff to sign authorizations for the release of her medical records related to emotional distress for the same time period and for records with the EDD related to her prior disability claim for the period of November 2016 through th...

Excerpt: ...American Directions Research Group, Inc. et. al. (hereinafter Hender) now pending before the U.S. District Court for the Eastern District of California. Plaintiff cites as authority California Code of Civil Procedure section 410.30 and Caifa Prof. Law Corp. v. State Farm fire & Cas. Co., 15 Cal. App. 4th 800, at 804. Both the present matter and the Hender action are proceeding on the same theories of liability for the same parties. The fact that ...

Excerpt: ...roduce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. A motion brought under this section must be accompanied by a meet and confer declar...

Excerpt: ...der the Government Claims Act. That claim was denied. Plaintiff filed the present action on July 10, 2017. Motion for Summary Judgment Standard: CCP § 437c states a motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. “A defendant…has met his or her burden of showing that a cause of action has no meri...

Excerpt: ...28.75 pursuant to Civil Code § 1794(d) of the Song‐Beverly Consumer Warranty Act. The attorney's fees relate to the work of six attorneys for a total of $20,152.50. Plaintiff then requests a .5 lodestar enhancement making the total $30,228.75. Plaintiffs also requests costs in the amount of $7,144.65. Authority: The Song‐Beverly Act contains a cost‐shifting provision that specifically allows prevailing buyers to 5 recover their costs, incl...

Excerpt: ...nfer Efforts: The Court finds that the meet and confer efforts were minimal and ineffective; however, it appears that further meet and confer efforts would be unproductive. The Court will therefore proceed to issue a ruling on the merits. Standards of Demurrer: A generally demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on t...

Excerpt: ... conducted under Vehicle code section 13559 and CCP section 1094.5. Combs v. Pierce (1991) 1 Cal.App.4th 568, 575. The reviewing court must exercise its independent judgment in determining whether the weigh to the evidence supports the Respondent's findings. Berlinghieri v. DMV (1983) 33 Cal.3d 392, 394. Where the evidence is subject to conflicting inferences of a crucial issue, the trial court may draw its own inferences from the evidence in the...

Excerpt: ...e to appear for Plaintiff's deposition. The deposition was set to occur on February 28, 2020. Prior to the deposition date, Plaintiff's counsel stated that he would not allow the deposition to proceed unless Defendant provide further responses to discovery and other information related to documents in Defendant's possession. He also sought to limit the scope of the deposition. Defendant agreed to and in fact did provide further responses in the a...