Excerpt: ...and on any terms as may be proper, after notice to the adverse party. The Court's discretion in this regard will usually be exercised liberally to permit amendment. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. A Court is rarely justified in refusing a party leave to amend so that he or she may properly present the case. Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031. It is an abuse of discretion to deny a timely motion to am...

Excerpt: ... fees. Defendant has filed a motion to tax costs, which directly addresses the issue of costs. The motion to tax costs is scheduled for hearing on September 9, 2019. This ruling will only address the issue of attorney fees. The issue of costs will be addressed at the hearing on defendant's motion to tax costs. In the context of the motion, several objections and requests for judicial notice have been made by the parties. The Court issues the foll...

Excerpt: ... counsel's mistake, Plaintiff request the Court issue an order relieving her from the obligation to file a claim under the Act. Merits of Motion: Pursuant to Gov. Code § 905.2(b) all claims for money or damages against public entities require the filing of a government claim prior to initiating litigation. Under Gov. Code § 911.2(a) causes of action for injury to a person shall be presented no later than 6 months after the accrual of the cause ...

Excerpt: ...r Two, served on defendant on April 9, 2019. The motion is brought pursuant to Code of Civil Procedure section 2031.010 et seq., with a sanction request in the sum of $4,172.50 also being sought pursuant to Code of Civil Procedure sections 2023.010 and 2031.300. The Court finds that an adequate meet and confer process has occurred between the parties. Under Code of Civil Procedure section 2031.300, a party making an inspection demand may move for...

Excerpt: ...er District back in 2018, and to otherwise enjoin Westlands Water District from taking any action that would violate the California Wild and Scenic Rivers Act, Public Resources Code section 5093.542. Preliminary Statement on Use of Evidence: Both parties have submitted requests for judicial notice of various federal and state documents in support of their respective positions. The Court takes judicial notice of these documents pursuant to Evidenc...

Excerpt: ...y terms as may be proper, after notice to the adverse party. The Court's discretion in this regard will usually be exercised liberally to permit amendment. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. Here the Court finds that prior counsel failed to properly respond to the allegations and allege all applicable affirmative defenses. The Court is therefore inclined to grant the motion. The granting of the present motion will make moot the con...

Excerpt: ...e fail to state facts sufficient to constitute a valid cause of action. The demurrer has been filed more than 30 days after service of the Summons and FAC. However, defendants' default was never taken by plaintiff, and the demurrer constitutes a responsive pleading in the case. The Court in its discretion will consider the demurrer on its merits. See Jackson v. Doe (2011) 192 Cal.App.4th 742, 750. The action was filed by plaintiff Timothy Hamaker...

Excerpt: ... and must include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests. CCP § 387(c). Berkshire has satisfied the requirements of CCP § 387(c). A nonparty must be allowed to intervene if (A) a provision of law confers an unconditional right to intervene or (B) the nonparty “claims an interest relating to the property or transaction that is the subject of the action ...

Excerpt: ...f and Defendant had a financial transaction, Plaintiff kept an account of the debits and credits involved in the transaction(s); and Defendant owes Plaintiff $3,149.76, all of which comprise entitlement to judgment on an open book account claim. Additionally, Plaintiff's evidence establishes that Defendant owed Plaintiff money from previous financial transactions; Plaintiff and Defendant, by words or conduct, agreed that the amount stated in the ...

Excerpt: ...Goodin (1998) 17 Cal.4th 599, 606. The award of costs pursuant to section 1032 is discretionary, and the costs recoverable 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. ...

Excerpt: ... 392 et seq. In applying these statutes, courts generally look to the main relief sought, as determined by the complaint. See Massae v. Superior Court (1981) 118 Cal.App.3d 527, 530. A defendant is entitled to have an action tried against him in his county of residence unless the proceeding comes under an exception. See CCP § 395. “Where a defendant has made a proper showing of nonresidence, the burden is on the plaintiff to show that the case...

Excerpt: ...rmined according to CCP § 392 et seq. In applying these statutes, courts generally look to the main relief sought, as determined by the complaint. See Massae v. Superior Court (1981) 118 Cal.App.3d 527, 530. A defendant is entitled to have an action tried against him in his county of residence unless the proceeding comes under an exception. See CCP § 395. “Where a defendant has made a proper showing of nonresidence, the burden is on the plain...

Excerpt: .... Pursuant to Probate Code § 3604, the Court finds that 1) Katrina Harp has a disability that substantially impairs her ability to provide for her own care or custody and constitutes a substantial handicap; 2) That Katrina Harp is likely to have special needs that will not be met without the trust; and 3) That money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet the special needs of Katrina Harp. A s...

Excerpt: ...a few concerns which can be addressed at the time of hearing. First, the Petition establishes that the at fault driver, Joaquim Azavedo, was uninsured but it fails to address whether he had any assets to satisfy a judgment. Second, the policy limit of $60,000 was apportioned between three individuals according to their injuries but no information was provided related to the injuries of the Petitioner or Ian Woolery. Finally, the Petition provides...

Excerpt: ...y establishing one of two grounds. First, if the pleading on which the notice is based does not 5 contain a real property claim. CRC § 405.31. Second, if the Court finds the claimant has not establish by a preponderance of the evidence the probable validity of the real property claim. CCP § 405.32. Real Property Claim: A real property claim in the context of lis pendens is defined as a “the cause or causes of action in a pleading which would,...

Excerpt: ... order. Eight main terms were specified. The eighth term stated: “The parties will execute a mutually agreed upon settlement agreement and release, which shall include as a term that any party who prevails in a motion to enforce settlement shall be entitled to recover attorney's fees and costs associated with that motion.” Defendant submits that the language reflects the parties' agreement at the mandatory settlement conference. However, plai...

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: ...ot yet occurred and therefore Plaintiff alleges that additional evidence may be discovered through the deposition of Abe Salehpour. The need for a continuance to properly oppose a motion for summary judgment is directly addressed by CCP § 437c(h) which states in pertinent part, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition...

Excerpt: ...quest in the sum of $3,415.00 also being sought pursuant to Code of Civil Procedure sections 2023.010 and 2031.310. The Court finds that an adequate meet and confer process has occurred between the parties. Although both the opposition and reply briefs were filed a day late, the Court considers the motion ripe for hearing on the originally scheduled hearing date of July 8, 2019. Under Code of Civil Procedure section 2031.310, a party requesting d...

Excerpt: ...n: CCP § 473(a)(1) permits any pleading to be amended in further of justice and on any terms as may be proper, after notice to the adverse party. The Court's discretion in this regard will usually be exercised liberally to permit amendment. Nestle v. Santa Monica (1972) 6 Cal. 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 w...

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: ...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: ... 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...