Excerpt: ...on. The agreement in paragraph 4 provided that Cross‐Defendant would pay royalties for materials removed from the real property. There is no provision in the agreement for “rent”. Paragraph 8 provided that if the royalties were not paid that the Cross‐Complainants could terminate the lease. There is no exclusivity language related to the cancellation remedy in the agreement. There is no language that would appear to waive the standard bre...

Excerpt: ...eclaration of Michael Cogan is sustained. Esquire's objection to paragraph 5 and Exhibit 4 are sustained on the grounds of lacks foundation and hearsay. Esquire's objections to Exhibit 5 are sustained on the grounds of lacks foundation and hearsay. Esquire's objection to paragraph 12 is sustained on the grounds of lacks foundation. All other objections are overruled. Meet and confer. The Court finds that plaintiff has satisfied her meet and confe...

Excerpt: ...ifying the effect of the amendment, why it is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons why the request was not made earlier. Plaintiffs have satisfied the requirements of Rule 3.1324. CCP § 473 provides that the court may “in furtherance of justice…allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars.” CCP § 473(a)(1). The ...

Excerpt: ...dards and Enforcement (“DLSE”) seeking unpaid wages and penalties. In the course of this claim, plaintiff was terminated at a DLSE hearing on September 14, 2015. After a full evidentiary hearing on plaintiff's DLSE claim, on November 5, 2015, the DLSE issued its decision finding plaintiff to be a non‐ exempt employee and awarding him $27,637.87. On November 25, 2015, defendant filed an appeal of the DLSE matter with this Court. On June 22, ...

Excerpt: ...her mistake, inadvertence, surprise or excusable neglect.” The relief is mandatory when the application is accompanied by an affidavit showing that the mistake was committed by counsel. Id. The application for relief must be made within six months of the contested order, e.g., an order of dismissal. Id. Here, the motion was filed within the required six months. The declaration indicates that counsel was unaware that the May 20, 2019 proceeding ...

Excerpt: ...that defendant has satisfied the meet and confer requirements for a demurrer. Request for judicial notice. Defendants' request for judicial notice is granted. Demurrer standard. The purpose of a demurrer is to test the legal sufficiency of a pleading. CCP §§ 422.10, 589. A demurrer is properly sustained where the complaint fails to state facts sufficient to constitute a cause of action (CCP § 430.10(e)) or is uncertain (CCP § 430.10(f)). A de...

Excerpt: ... Rice (deceased) was negligent but that her negligence was not a substantial factor in causing harm to the Plaintiff. Merits of Motion: CCP § 2036.010 permits for a party to obtain discovery after judgment is entered if an appeal has been taken or the time for an appeal has not expired. A party seeking post judgment discovery must obtain leave of court. CCP § 2036.030(a). The motion shall set forth: 1) the names and addresses of the person from...

Excerpt: ... 1: Sustained, except as to Exhibit B Objection 2: Sustained, except as to Exhibits A‐D Objection 3: Sustained, except as to Exhibits B‐E Objection 4: Sustained. Objection 5: Sustained. Timeliness. While defendant is correct that the opposition was untimely filed and served, by addressing the opposition on its merits, defendant has waived any irregularities in the notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The opposition sha...

Excerpt: ...complaint is one filed by a defendant against the plaintiff for a related cause of action. CCP § 4256.30. A related cause of action is defined as “a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” CCP § 426.10(c). CCP § 426.50 permits a party who failed to timely file a compulsory cross‐complaint due to ove...

Excerpt: ...019 against, Defendant Craig E. Miller, as Successor Trustee of the Miller Family 1993 Revocable Trust. A first amended complaint was filed on March 1, 2019 and alleges causes of action for breach of secured 2 promissory note, judicial foreclosure, common count, foreclosure of equitable lien and declaratory relief. Defendant filed his answer and cross‐complaint on April 9, 2019. The cross‐ complaint named Plaintiff as a Cross‐Defendant as w...

Excerpt: ...mitations; 3. The complaint contains no specific factual allegations risking to level of “evil motive” required to support a finding of malice, oppression, or fraud for a punitive damages claim; 4. Plaintiff's claim for emotion distress damages in first, second, seventh, and eighth causes of action is barred by workers' compensation exclusivity provisions of Labor Code §§ 3600 et seq.; 5. Plaintiff's claim for failure to engage in the inter...

Excerpt: ...re 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). CCP § 1033.5 sets forth categories of costs that are presumed allowable under section 1032 if incurred, whether or not paid, by the prevailing party. Service of Process: Service of process cost are expressly authorized by CCP § 1033.5(a)(4). Plaintiffs have provided an explanation as to the met...

Excerpt: ...h 68 (cancellation of written instrument cause of action) 5. Paragraph 69 (cancellation of written instrument cause of action) 6. Prayer for relief, Paragraph i (treble damages for violation of the Homeowner's Bill of Rights) 7. Prayer for relief, Paragraph ix (punitive damages) 8. Prayer for relief, Paragraph xi (attorney's fees and costs) The motion is brought pursuant to CCP §§ 435 and 436 on the grounds that the prayer for relief is not dra...

Excerpt: ...urts to prosecute the action.'” Jameson v. Desta (2009) 179 Cal.App.4th 672, 678; citing Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792. If the litigant is indigent and has a bona fide claim, the trial court must consider the remedies that are available to protect the litigant's right of meaningful access to the courts. Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483. A trial court is to exercise its “sound discretion” in determining th...

Excerpt: ... those defects has been filed. Under CCP § 1005(b), all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The motion was served by mail on May 14, 2019 and filed June 3, 2019. Merits of motion. A petition for leave to intervene may be made by noticed motion or ex parte application and must include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds u...

Excerpt: ...155,960. He provides no other evidence. Typically a motion of this nature is supported by a detailed declaration if not copies of the billing sheets. This information allows the Court to review and consider if the amount of hours were reasonable and if the hours were expended related to a cause of action or claim that supports the award of attorney's fees. The evidence provided does not produce such information and therefore the Court cannot cond...

Excerpt: ...rits, plaintiff has waived any irregularities in the notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The motion should be heard on its merits. Request for Judicial Notice. The Court grants both parties' requests for judicial notice. Factual background. This motion is based on a provision in the Credit Agreement, a document which forms part of the contract sued upon by plaintiff in this action. The Credit Agreement has a clause in par...

Excerpt: ... issue the instant OSC re dismissal. This decision was made based on counsel's appearance and his promises that the default prove up would be filed. Remarkably, there is no response to this OSC and no default judgment has been entered. Plaintiff continues to violate CRC 3.110(h), despite these several OSCs. Plaintiff's failure to timely prosecute this case has unnecessarily caused the Court and its staff to expend vital resources reviewing the fi...

Excerpt: ...hearing plus five calendar days if mailed. CCP § 1005(b). For a hearing date of May 28, 2019, the last day to have served the motion by mail was April 28, 2019. The motion was served by mail on May 2, 2019 and therefore fails to satisfy the service requirements of CCP § 1005(b). Defects in the notice are waived if the motion is opposed on the merits absent sufficient prejudice. Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. Plaintiff has obje...

Excerpt: ...nfer efforts. At issue are approximately 30+ requests for admissions and corresponding Form Interrogatory 17.1, which requires a party who responds to a request for admission with anything other than an unqualified admission to identify facts, witnesses and documents that support the party's response. Procedural requirements. Defendant has satisfied the meet and confer requirements in bringing this motion. See CCP §§ 2030.300(b), 2033.290(b). L...

Excerpt: ... vehicle was owned by Defendant Gerald Olsen. At the time of the incident, Plaintiff was an employee of JF Shea. JF Shea had been retained by Defendant, State of California, Department of Transportation (Caltrans) to perform repairs on a state highway made necessary due to a landslide. Caltrans moves for summary judgment or, in the alternative, summary adjudication, on grounds that (1) Plaintiff's recovery is barred by the Workers' Compensation E...

Excerpt: ...nfer efforts. At issue are approximately 30+ requests for admissions and corresponding Form Interrogatory 17.1, which requires a party who responds to a request for admission with anything other than an unqualified admission to identify facts, witnesses and documents that support the party's response. Procedural requirements. Defendant has satisfied the meet and confer requirements in bringing this motion. See CCP §§ 2030.300(b), 2033.290(b). L...

Excerpt: ...ive order in place. Plaintiff's counsel failed to provide a formal objection to the deposition notices. No protective order was sought prior to the deposition dates and no motion to quash the subpoena was ever filed. The service of a deposition notice is effective to require a party or party affiliated individual to appear for the deposition. CCP § 2025.280. In addition a subpoena can be issued to require the appearance of a non‐party deponent...

Excerpt: ...cts that appear on the face of the complaint or matters that may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881. The “face of the complaint” includes exhibits attached to the complaint and incorporated by reference. Barnett v. Fireman's Fund Ins. Co. (2001) 90 CA4th 500, 505. The court treats a demurrer “as admitting all...

Excerpt: ...provides a mechanism for a party to move for reconsideration within 10 days after service of the written notice of entry of order. A party may make this application to the same judge or court that made the order “based upon new or different facts, circumstances, or law” and request the court “reconsider the matter and modify, amend, or revoke the prior order.” Id. The application must include an affidavit showing what application was made...

Excerpt: ...ent an agreement between the parties. Third, the motion is actually a motion for reconsideration considering that Plaintiff previously filed a motion for a trial continuance. That motion also failed to comply with Code of Civil Procedure Section 1005(b) and was denied after Plaintiff failed to appear for the hearing. Despite the numerous procedural defects, the Court will consider the motion on the merits. A motion for a trial continuance is allo...

Excerpt: ... abuse and to the general inability to treble punitive damages. As the opposition makes clear the Plaintiff is not attempting to treble the elder abuse damages provided by the W&I Code. Plaintiff is only seeks to treble the punitive damages. A review of the relevant paragraphs in each cause of action show that Plaintiff is only seeking to treble the punitive damages. Therefore, the Court need only to address the applicability of treble punitive d...

Excerpt: ... an amendment to any pleading or proceeding in other particulars.” CCP § 473(a)(1). CCP § 576 further provides that a court “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” The court's discretion is usually exercised liberally to permit amendment of the pleadings “at any stage of the proceedings,...

Excerpt: ...mitted that all the allegations of Plaintiff's complaint are true. Defendant has not asserted any affirmative defenses. Here, Plaintiff alleges a breach of contract and common count causes of action to collect on a debt; specifically, account stated, open book account and money lent. The element for a breach of contract cause of action are: 1) the existence of a valid contract; 2) performance of the contract by the plaintiff or excuse for nonperf...

Excerpt: ...hat they would “arrange” the depositions in question. Regardless, of misrepresentations by Defendant, the CMI employees are not employees of Defendant. Any order issued by the Court ordering Defendant to comply would be a nullity. Especially for Ms. Gaylord who no longer works for CMI. The proper procedure would have been to obtain the addresses of these individuals and to issue subpoenas to them; a course of action that Plaintiff considered ...

Excerpt: ...tes the writ is based on the administrative record. No administrative record has been submitted. Third, whether this matter has been set for a peremptory or alternative writ, it fails to follow the proper procedure. If an alternative writ has been sought, Petitioner has not followed the ex parte process to seek such a writ. See CRC 3.1200 et seq. If the peremptory writ has been sought, which appears to be the case, Petitioner has failed to follow...

Excerpt: ...t) of CCP § 437c as the basis for this motion. Subdivision (t) provides that a party may move for summary adjudication of a legal issue that does not completely dispose of a cause of action when certain steps are followed. Subdivision (t) states in pertinent part as follows: (1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the followi...

Excerpt: ...ety. Under CCP § 916(a), the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. A motion to be relieved as counsel for Shree Shiva, LLC is neither embraced nor affected by ...

Excerpt: ...o provide a sufficient factual basis for punitive damages. She also provides a general allegation that Defendant Sparks as the Senior Vice President was certainly a managing agent and argues that no further specificity is needed. The title of Senior Vice President alone is insufficient to allege that Sparks was an officer or other responsible individual for corporate policy that would allow punitive damages to be alleged against a corporation. Th...

Excerpt: ...ty on March 29, 2017. During this inspection Rosas noticed there were no record to show the proof of payments and that Petitioner was not able to provide any payroll records. Rosas also did not believe the Petitioner's technicians were independent contractors. That day Rosas issued Citation No. SO. 103170 to Petitioner for his failure to cover his employees with worker's compensation insurance in violation of Labor Code Section 3700. The citation...

Excerpt: ... today's hearing. No response has been filed. The Court also notes that Defendants have failed to appear at recent hearings and/or trial. The Court finds that Defendants have abandoned their defense and that lesser sanctions would not compel Defendants to appear in this action. Defendants' answer is STRICKEN. The clerk is instructed directed to prepare a separate Order Striking Defendants' answer. The review hearing set for 9:00 a.m. is confirmed...

Excerpt: ...on for a hearing on the issue of whether a settlement has been made in good faith. A good faith determination bars any other joint tortfeasors or coobligors from any further claims for indemnity, comparative fault or equitable contribution. CCP § 877.6(c). The settlement must be within the reasonable range of the settling tortfeasors' share of liability taking into consideration the facts and circumstances of the case. Tech‐Bilt, Inc. v. Woodw...

Excerpt: ...he 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, a plaintiff's allegations must be accepted as true for the purpose of ruling on...

Excerpt: ... due to the second cause of action failing to state facts that constitute harassment as a matter of law and being untimely filed. As an initial matter, the Opposition was filed and served several days late. The Reply was filed and served one day late. The court, in its discretion, may refuse to consider late‐filed papers in ruling on the motion. In such event, the court's minutes or order must so indicate. CRC 3.1300(d). In ruling on this D...

Excerpt: ...ken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” The relief is mandatory when the application is accompanied by an affidavit showing that the mistake was committed by counsel. Here, counsel Lee Mendelson, has failed to provide evidence that his mistake was the cause of the dismissal. The Court issued an Order to Show Cause re: Dismissal which was set to be heard on September 10, 2018. At that hear...

Excerpt: ...filing and improper service of the Opposition is excusable neglect and considers both the Opposition and Reply brief in ruling on this motion. Factual background. The parties do not dispute the following facts: On December 4, 2018, after the instant lawsuit was filed but before defendants were served with the complaint, defendant Casey Bishop and Santiago Schenone, an engineer retained by Mr. Bishop's homeowner's insurance carrier, attempted to g...

Excerpt: ...rom waiver on a determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial 2 compliance with Sections 2033.210, 2033.220, and 2033.230; and (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. CCP § 2033.280(a). In order to obtain relief from waiver, a separate noticed motion is required. Such relief ca...

Excerpt: ...9. CRC Rule 3.1700 provides in pertinent part as follows: A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under CCP § 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. CRC Rule 3.1700(a)(1). Plaintiffs filed their Request...

Excerpt: ...ation. It provides various expert reports that show the seriousness of the brain damage, her life expectancy and the future costs for caring for the minor. The minor (age 2) is fully disabled and will require 24/7 care for life. Her life expectancy is only 26.7 years. There is an itemization of estimated rehabilitation costs which clearly demonstrate that the costs to care for the minor will be significant and will greatly exceed the amount of th...

Excerpt: ...within one document, with differing facts and legal authority, unnecessarily complicates the court's review of the pleadings and their distinct issues, and also circumvents the separate filing fee requirements. While CRC 3.1112(c) provides that a motion, notice of hearing and points and authorities may be combined in a single document, it references papers relating to the same motion or demurrer, and does not authorize combining papers related to...

Excerpt: ...y.” As a preliminary matter, plaintiffs' request for judicial notice of documents previously filed in this action is granted. Improper combining of motions. Counsel has filed this motion seeking a preliminary and permanent injunction and also seeking trial preference. The request for trial preference is content for a separate motion. The improper combining of multiple motions within one document, with differing facts and legal authority, unnece...

Excerpt: ... Craig Wilson, then Costco's answer should be stricken and default entered; or (b) If Mr. Wilson is among the PMQs who appear for deposition on behalf of Costco, Costco's answer should be stricken and default entered if the referee determines it is more likely than not that Costco had responsive documents to the Demand for Production, Set One, and/or Costco PMQ deposition request, but did not produce them. (2) If defendant's answer is not stricke...

Excerpt: ...ice of summons. The general authority provided by Defendant is accurate that if the summons is not properly served then the Court lacks jurisdiction over the party. Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150. Any judgment entered without jurisdiction is void. Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691‐92. The present scenario is a simple factual dispute with great ramifications. Both parties provide plausible factual scenari...

Excerpt: ...rt can fully evaluate the proposed compromise. 1. No Attachment 14a declaration. Petitioner seeks court approval of $1,150.00 in attorney's fees. No Attachment 14a, a declaration from the attorney explaining the basis for the request, including a discussion of applicable facts listed in CRC Rule 7.955(b), has been provided. The Court cannot assess the reasonableness of the fees sought without this information. 2. Counsel of record. The Petition i...

Excerpt: ...nd McDonald. Evidence submitted with the parties' pleadings provides that the vehicle which allegedly collided with the Plaintiffs' vehicle was driven by Mickiewicz, owned by McDonald and insured by Armenta. Defendants, Krystopher Maskiewicz and Carla McDonald (hereinafter collectively “Defendants”) move to quash the Doe amendment adding them to this litigation on the grounds that their identities were known to Plaintiffs at the time the comp...