Excerpt: ... dismissal was entered due to the mistake, inadvertence or error of Plaintiff's counsel, under CCP § 473(b). There are two clauses in CCP § 473(b) under which a dismissal may be vacated – one mandatory, the other permissive. The second clause of CCP § 473(b) requires mandatory relief upon an attorney's affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. It must be made “no more than six months after entry of judg...

Excerpt: ...to set aside the default judgment entered pursuant to CCP § 473. Defendant alleges that service was invalid and the resulting judgment was therefore void. Defendant's wages from Grove Contracting, Inc., a California Corporation, have been garnished to satisfy this judgment since 2015. He explains that he would have brought this motion earlier, but he contends he was represented by incompetent counsel. Merits of Motion: “Personal service remain...

Excerpt: ...and whether a further response is required to each discovery request at issue in the motion. No opposition to the motion was filed. Overbroad, Overburdensome and Oppressive: Plaintiff's responses to discovery repeatedly object on the grounds that the discovery is overbroad, overburdensome, and oppressive. No reason is given, and there is nothing in the responses to indicate how responding to the discovery would be unduly burdensome. The Court doe...

Excerpt: ...om papers supporting or opposing the motion, and that specific formatting requirements be met, none of which have been. Therefore, the Court does not consider Plaintiff's objections. 5 Defendant has also filed objections to Plaintiff's evidence, specifically statements made within Plaintiff's affidavit. The Court declines to rule on the objections, finding such rulings are not material to the disposition of the motion. See CCP § 437c(q). [The Co...

Excerpt: ...force the settlement until performance in full of the terms of the settlement. The parties entered into a settlement in December 2018. No settlement agreement has been provided but rather the terms of the settlement appear to be wholly memorialized in a stipulation filed with the Court. The stipulation provided the sums owed under two accounts and their respective interest rates. It also provides a payment schedule and that a default would entitl...

Excerpt: ...st 7, 2019 and should is DENIED. The first declaration of Mr. Oberst misidentified the Plaintiff but that is clearly a typo and there appears to be a sufficient basis to allege the facts contained therein on information and belief. The second request to strike was filed on August 15, 2019 and challenges Mr. Oberst's declaration filed on August 12, 2019. That request is GRANTED. Mr. Oberst's declaration filed in support of Defendants' reply seeks ...

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: ...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: ...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: ...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: ...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: ... 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: .... 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: ...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: ... 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: ...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: ...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: ... 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: ...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: ...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...