Excerpt: ...evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. Adventist Health System/West (2010) 182 Cal. App. 4th 729, 749. In ...

Excerpt: ...ecessitates a substitution of attorney. That substitution of attorney has been filed as of October 4, 2019 (although the Court notes that defense counsel failed to use the mandatory Judicial Council Form MC‐050). “Before, during, or after a deposition, any party, any deponent . . . may promptly move for a protective order.” CCP §2025.420(a). On a showing of good cause, the court “may make any order that justice requires to protect any pa...

Excerpt: ... Court. Plaintiff's failure to obtain permission was discovered in early December 2018. On December 14, 2018, the present Order to Show Cause Re: Dismissal (hereinafter “OSC”) was issued to Plaintiff. The OSC also provided Lakota the notice required by CCP § 391.7(c) informing him he had ten (10) days to obtain leave from the Presiding Judge to pursue the litigation. Plaintiff failed to seek the required leave. The OSC also provided that Pla...

Excerpt: ...County Superior Court. Plaintiff's failure to obtain permission was discovered in early December 2018. On December 14, 2018, the present Order to Show Cause Re: Dismissal (hereinafter “OSC”) was issued to Plaintiff. The OSC also provided Lakota the notice required by CCP § 391.7(c) informing him he had ten (10) days to obtain leave from the Presiding Judge to pursue the litigation. Plaintiff failed to seek the required leave. The OSC also pr...

Excerpt: ...Defendant alleges that the clerk improperly exceeded his or her authority in entering default judgment against defendant and cites to CCP § 473(d) and the Court's inherent equitable powers to set aside a void judgment or order in support. Under CCP § 473(d), the court may, “on motion of either party after notice to the other party, set aside any void judgment or order.” Defendant alleges that the Revolving Loan Agreement relied upon by Plai...

Excerpt: ...he case as a result of which the case is not ready for trial.” CRC 3.1332(c)(7). There are numerous other factors to be considered by the Court including but not limited to the proximity of the trial date, whether there have been other continuances, the length of the continuances, whether any party will suffer prejudice, and the interests of justice. CRC 3.1332(d)(1‐3) & (10). A motion to continue trial must be brought “as soon as reasonabl...

Excerpt: ...rial. The failure to file earlier must have been in good faith. Id. Leave to file a cross‐complaint must be liberally construed to avoid forfeiture of causes of action. Id. Defendant has established that the failure to file the cross‐ complaint earlier was based on good faith efforts to settle this litigation. This matter is set for trial in October 2019 which will provide Plaintiff ample time to conduct discovery on the cross‐complaint. Fu...

Excerpt: ...ust grant that party leave to file the cross‐complaint so long as the party acted in good faith and has given proper notice to the adverse party. CCP § 426.50. The Court finds that the proposed cross‐complaint is compulsory as it “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). Specifically, the cross‐complai...

Excerpt: ... § 435.5(a). A motion to strike must also be supported by a meet and confer declaration. CCP § 435.5(a)(3). No meet and confer declaration was provided with the demurrer and motion to strike. It appears 2 moving party has submitted the Declaration of Damon Booth with its reply in an effort to cure this defect. This declaration indicates nothing more than the fact counsel apparently had a single telephone conversation on November 6, 2018 wherein...

Excerpt: ...ction is based upon a contract, fails to make ascertainable whether the contract is written, oral, or implied by conduct (CCP § 430.10(g)). A demurrer is treated “as admitting all material facts properly [pled], 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. For purposes of ruling on a demurrer. the plaintiff's allegations must be accepted...

Excerpt: ...provided the required “Claim of Exemption” mandatory Judicial Council Form but it fails to identify any code section that would apply. Further, the facts alleged simply state that the proof of service was incomplete and that it was never actually filed or stamped by the clerk's office. It is unclear to which proof of service he is referring. The original complaint was personally served on December 10, 2010 according the proof of service filed...

Excerpt: ...st 13, 2018 and therefore the opposition was due on July 31, 2018. The opposition was filed on August 7, 2018. The proof of service shows that the opposition was not served until August 7, 2018 and was therefore untimely. Even if the Court were to consider the closure from July 30‐August 3 due to the Carr Fire there is no excuse why the opposition was not timely served on the opposing parties. The Court will exercise its discretion and consider...

Excerpt: ...ion Code § 44808 and design immunity pursuant to Gov. Code § 830.6. Defendants' Objections to Evidence: Objection No. 1: OVERRULED Objection No. 2: SUSTAINED Objection No. 3: OVERRULED Objection No. 4: OVERRULED Factual Background: In May of 2016, Plaintiff was a second grade student at Boulder Creek Elementary School, part of the Enterprise Elementary School District. On May 16, 2016, at 1:56 p.m., the school bell rang and Plaintiff was dismis...

Excerpt: ...d as counsel is brought instead of filing a consent under CCP § 284(1). Mr. Cogan has established in general terms that there has been a breakdown in the relationship. The 3 information provided in the declaration is sufficient to establish a need to be relieved provided all procedural requirements have been met. CRC 3.1362(d) specifically requires service of the motion, supporting declaration and proposed order. The proof of service on file ref...

Excerpt: ...thority to represent Reed or file a motion on his behalf. On this basis alone, the motion is denied. Counsel should be prepared to address this issue at the hearing of this matter. Out of an abundance of caution, and in order to promote economy and convenience to the parties, the Court issues the following “tentative” tentative ruling indicating how it would rule if Peter Dubrawski properly appeared. Plaintiff, Robert Reed and non‐parties r...

Excerpt: ...dge. When and if the Defendant is served, the moving party may have more certain information upon which to base this motion, and/or the parties may wish to stipulate to a different venue. Otherwise, this motion is denied at this time, without prejudice. The motion is DENIED without prejudice. A proposed order was lodged with the Court which will be modified to reflect the denial. ...

Excerpt: ...“general demurrers.” A general demurrer lies when the allegations of the complaint show that the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995. Merits of Motion: Plaintiff's form complaint for personal injury alleges two causes of action arising from the same incident. The first cause of action is for “Motor Vehicle” which is a type of negligence cause of action....

Excerpt: ... five calendar days if the notice is served by mail. CCP § 1005(b). The motion was served by mail on July 12, 2018. The last day to serve by mail was actually July 8, 2018. The motion is therefore untimely. Plaintiff has filed an opposition which addresses this procedural defect and which addresses the underlying merits of the demurrer. Opposing a motion on the merits waives any irregularities in the notice. Carlton v. Quint (2000) 77 Cal.App.4t...

Excerpt: ...“general demurrers.” A general demurrer lies when the allegations of the complaint show that the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995. Merits of Motion: Plaintiff's form complaint for personal injury alleges two causes of action arising from the same incident. The first cause of action is for “Motor Vehicle” which is a type of negligence cause of action....

Excerpt: ...at can be withheld is 25% of disposable income). 15 USC § 1673(a). Section 1672(b) of Title 15 of the United States Code defines “disposable earnings” as “that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.” CCP section 706.011 provides an almost identical definition. Under California law, even more than 75% can be exempt, if the income is sufficient...

Excerpt: ...thority to represent Reed or file a motion on his behalf. On this basis alone, the motion is denied. Counsel should be prepared to address this issue at the hearing of this matter. Out of an abundance of caution, and in order to promote economy and convenience to the parties, the Court issues the following “tentative” tentative ruling indicating how it would rule if Peter Dubrawski properly appeared. Plaintiff, Robert Reed and non‐parties r...

Excerpt: ...thority to represent Reed or file a motion on his behalf. On this basis alone, the motion is denied. Counsel should be prepared to address this issue at the hearing of this matter. Out of an abundance of caution, and in order to promote economy and convenience to the parties, the Court issues the following “tentative” tentative ruling indicating how it would rule if Peter Dubrawski properly appeared. Plaintiff, Robert Reed and non‐parties r...

Excerpt: ...“general demurrers.” A general demurrer lies when the allegations of the complaint show that the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995. Merits of Motion: Plaintiff's form complaint for personal injury alleges two causes of action arising from the same incident. The first cause of action is for “Motor Vehicle” which is a type of negligence cause of action....

Excerpt: ...that can be withheld is 25% of disposable income). 15 USC § 1673(a). Section 1672(b) of Title 15 of the United States Code defines “disposable earnings” as “that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.” CCP section 706.011 provides an almost identical definition. Under California law, even more than 75% can be exempt, if the income is sufficie...

Excerpt: ...resentation, and declaratory relief. Part of their complaint also makes reference to a lawsuit filed by two of the Defendants (Amrit and Ruby Gill) on April 19, 2017 in Orange County (Orange County Superior Court Action No. 30‐2017‐00915449‐CU‐FR‐CJC). The Orange County complaint alleges similar causes of action pertaining to the same transaction, but also includes different causes of action and different parties. It appears both compla...