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

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: ...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...