Excerpt: ...hed that resolves the objections to be raised in the motion to strike. CCP § 435.5(a). Plaintiff has provided a letter sent to Defendants on January 19, 2021. Ricks. Decl. ¶ 5, Exhibit B. The Court finds that Plaintiff has met their obligation to meet and confer. Motion to Strike Standard: A motion to strike can be used to attack the entire pleading, or any part thereof, including single words or phrases. Stearns Ranchos v. Atchison Topeka & Sa...

Excerpt: ...murrer: A general demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The ...

Excerpt: ...a settlement reached by a defendant/joint tortfeasor. 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. Woodward‐Clyde & Associates (198...

Excerpt: ...ecember 3, 2020. The pending Motion for Final Approval of Class Action Settlement and Motion for Award of Reasonable Attorneys' Fees and Costs, Class Representative Service Award, and Settlement Administration Fees were filed on February 2, 2021 along with numerous supporting declarations. Both motions are unopposed. Final Approval of the Settlement: The terms of the settlement require defendant to fund a settlement package in the amount of $180,...

Excerpt: ..., the burden shifts to the plaintiff to establish his probability of prevailing on the claim. (HMS Capital, Inc. v. Lawyers Title Company (2004) 118 Cal.App.4th 204, 211.) A defendant meets his initial burden by demonstrating the act underlying the plaintiff's cause of action fits one of the categories spelled out in section 425.16, subdivision (e). (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) The “focus is not the form of the plaintiff's c...

Excerpt: ...nd confer at least five days before the date a motion to strike is filed. The Declaration of Robert P. Johnston provides evidence that the Parties met and conferred more than five days prior to the motion being filed. Requests for Judicial Notice. Both Parties request that the Court take judicial notice of the various pleadings contained within the Court's file for this case as well as the Appellate Opinion, Sumner v. Simpson University (2019) 27...

Excerpt: ...ction fails to state sufficient facts. CCP § 430.10(a) & (e). A demurrer can be used to challenge defects that appear on the face of the 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 ...

Excerpt: ...priate pursuant to Evid. Code § 452 and the Court will take judicial notice of each of the document Plaintiff's Objections to Defendants' Exhibits. The objections are be overruled. Service. Defendant objects that the Motion was served electronically, rather than by mail or personal service. The Court notes that Emergency Rule 12, which would have required Defendant to accept electronic service was repealed November 13, 2020. The Motion was serve...

Excerpt: ...ursuant to Evid. Code § 452(d). This request is granted. Merits of the 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 set forth the grounds upon which intervention rests. CCP § 387(c). Under CCP § 387(d)(2), the Court has discretion to permit a nonparty to intervene in the action where “the person has an interest in the matt...

Excerpt: ...as not expressly raised it appears that Plaintiffs' counsel also represents Williams. An opposition has been filed but it expressly states that it is the Plaintiffs' opposition. There is no indication that the opposition was provided on behalf of Williams. No evidence in opposition has been filed by Williams or on behalf of Williams. As such the Court will continue this matter to allow for personal service on Williams. Today's hearing is continue...

Excerpt: ...perty that is subject to litigation. The lis pendens can be expunged (removed) during the pendency of the action if the pleading on which the notice is based does not contain a real property claim. CRC § 405.31. A real property claim in the context of lis pendens is defined as “the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an...

Excerpt: ...tain a FAC. However, upon receipt it was apparent that the FAC was filed in Federal Court, not State Court. Plaintiff is directed to file a FAC in this case so that the operative pleading is part of the official record. The proposed Class is defined as, “all current and former non‐exempt, hourly employees who worked for Defendant within California at any time during the Class Period,” which is defined as “the time period from January 3, 2...

Excerpt: ...ws a party to move to set aside a void order or judgment. Defendant has submitted a declaration that he was never served with the FAC, and had no knowledge of it prior to November 24, 2020. The FAC was filed on August 18, 2020 and includes a proof of service stating that it was served by mail on Defendant Robert Blankenship on August 18, 2020. Based on the a proof of service indicating the FAC was served on August 18, 2020, the Court entered defa...

Excerpt: ...nsel show that good faith meet and confer efforts were made, but they were ultimately unsuccessful. Merits of the Motion. “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible...

Excerpt: ...her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto….” C...

Excerpt: ...nt and Housing Act (FEHA) as well as whistleblower retaliation, failure to take corrective action and violation of the POBRA related to actions taken by unspecified employees on September 27, 28 and 29, 2019. On April 10, 2020, Defendant responded with a Notice of Insufficiency. The Notice stated it would take no action on the claim for 15 days in order to give Plaintiffs' an opportunity to amend. On May 4, 2020, Plaintiffs submitted an amended c...

Excerpt: ...�uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects that appear on the face of the 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...

Excerpt: ...heck that was provided by Plaintiffs as evidence that their home was cleaned following a prior insurance claim just prior the insurance claim which is the subject matter of this litigation. As Plaintiffs again received payment for cleaning as a result of the Carr Fire claim at issue in this litigation having represented to Defendants that the prior cleaning had been performed. When Check No. 1287 (the check for payment of cleaning services) was p...

Excerpt: ...ecified in the requests admitted. CCP § 2033.280(b). Failure to respond also waives any objections to the discovery propounded. CCP § 2033.280(a). Petitioner's moving papers sufficiently demonstrate that the Claimant has failed to respond to Plaintiff's Request for Admissions within the required time frame. The motion is GRANTED. A proposed order was provided as an exhibit to the motion. The Court cannot remove the proposed order because that w...

Excerpt: ... may promptly move for a protective order.” CCP § 2025.420(a). “The court, for good cause shown, may make any order justice requires to protect a party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, or undue burden and expense,” including but not limited to an order that the deposition not be taken at all, be taken at a different time, be taken only on certain specified terms and c...

Excerpt: ...fs filed an Opposition to the Motion. Meet and Confer. A motion brought under this section must include a declaration describing efforts to meet and confer in good faith. CCP § 2031.310(b)(2). The parties both provide evidence of their meet and confer efforts, however Plaintiffs indicate that the meet and confer requirement has not been met. Both parties cite Obregon v. Superior Court (1998) 67 Cal. App. 4th 424 as supporting their respective po...

Excerpt: ...” The Declaration Tyler Lalaguna, submitted in support of the Demurrer, shows sufficient efforts between the parties to meet and confer. Request for Judicial Notice. The Court takes judicial notice of the Trust Transfer Deed 2018‐0018021 that was recorded by the Shasta County Assessor‐ Recorder on June 28, 2018. As the Defendant is not requesting the Court to admit any of the statements therein for the truth of the matter, Plaintiff's objec...

Excerpt: ...onse was provided on October 8, 2020. The instant motion seeks an order to compel further responses as to items 24‐27. Defendant objects to all four Demands on the basis of privilege. Asserting an objection related to a privilege requires that the party provide sufficient factual information which would allow the propounding to “evaluate the merits of the claim” as required under CCP 2031.240(c)(1). However, the privilege objection only 6 b...

Excerpt: ...eference for trial on the merits favors resolving doubts in favor of the moving party and relief should be granted except in cases of clear insufficiency of the “excuse” or unjustified delay in bringing the motion to the other party's prejudice. Elston v. City of Turlock (1985) 38 Cal.3d 227, 233–234. The Court should liberally exercise their power in setting aside default judgments. Carbondale Mach. v. Eyrand (1928) 94 Cal.App. 356, 360. A...

Excerpt: ...ear later. CRC 3.740 requires that these collection cases be served within 180 days of the complaint having been served. No efforts to obtain an extension of this time were ever requested. When the trial date arrived, no one appeared. Attorney C. W. Chase attempted to appear but he did not have an association of counsel and no association had been previously filed, thus the Court dismissed the case. CCP § 473 permits a court to set aside a judgm...

Excerpt: ...ised, the Court will likewise address all three motions in this ruling. On September 5, 2020, Plaintiff served the Special Interrogatories, Set Two on Defense Counsel via email. Defendants served responses on October 9, 2020. On October 16, 2020, Plaintiff's Counsel contacted Defense Counsel to request further responses. On November 3, 2020, Defense Counsel responded and added some context to the initial Responses. Correspondence continued up unt...

Excerpt: ...vely to the Motion. No prejudice has been shown. The Court exercises its discretion to consider the motion on its merits. Defendant's Evidentiary Objections. Defendant filed objections to three portions of the Declaration of Tony Cara. The Court rules as follows: 1. Page 7, ¶ 2, lines 7‐9, sustained 2. Page 7, ¶ 3, line 10, sustained 3. Page 7, ¶ 4, lines 11‐12, sustained Merits of the Motion. CCP § 473 provides that the court may “in f...

Excerpt: ... is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530. In general the Court should not concern itself with the validity of the proposed...

Excerpt: ...e facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects that appear on the face of the 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,...

Excerpt: ...l for failure to comply with those orders. Plaintiff has failed to heed the Court's direction. In response to the instant OSC, Plaintiff's counsel filed a reply which simply states that a settlement has been reached, and requests that the Court continue to monitor the case for an unspecified amount of time. No details regarding the settlement agreement have been provided. No specific future date has been requested. Despite the Court's repeated di...

Excerpt: ... papers. Plaintiffs allege in ¶ 47 of the Complaint that the statute of limitations was tolled under the delayed discovery rule and the doctrine of fraudulent concealment until November 28, 2014. Plaintiffs allege that this is the date Plaintiffs traded in their vehicle and discovered that Defendant Ford Motor Company had misrepresented the engine quality and it inability to maintain the vehicle under warranty to intentionally prevent Plaintiffs...

Excerpt: ...o be raised in the demurrer.” The Declaration of Michael Ricks, submitted in support of the Demurrer, shows sufficient efforts between the parties to meet and confer. Timeliness. The Reply was due on December 7, 2020, however, the Parties agreed amongst themselves that the Reply could be filed one day late. The Court reminds the Parties that filing deadlines are not just for the benefit of the Parties, but also to allow the Court sufficient tim...

Excerpt: ...demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The Declaration of Stefanie West, submitted in support of the Demurrer, shows sufficient efforts between the parties to meet and confer. Merits. The purpose of a demurrer is to test the legal sufficiency of a pleading. Code Civ. Proc. §§ 422.10, 589. A party may object by demurrer on the ground that “[...

Excerpt: ... Opposition to the Motion. Meet and Confer. The parties both provide evidence of their meet and confer efforts. Defendants attempted numerous times to obtain complete and substantive responses. Defendant sent meet and confer letters on September 14, 2020 and October 16, 2020. The Parties had additional discussions regarding the responses via email. Separate Statement. Rule 3.1345 of the California Rules of Court requires that any motion involving...

Excerpt: ...esponse to Interrogatories related to the request for admissions. Plaintiff has served four separate motions, the Motion to Deem Admitted and the Motion to Compel on two codefendants separately, however, the Opposition and Reply treat all four motions as one. Given that no Defendant‐specific issues were raised, the Court will likewise address all four motions in this ruling. On September 16, 2020, Plaintiff served the Request for Admissions and...

Excerpt: ...e trial for one year from the date of the presently sent trial. Trial is presently set for March 30, 2021. In determining whether the civil proceedings should be stayed, the Court considers the extent to which the defendant's Fifth Amendment rights are implicated, as well as the following factors: (1) the interest of the party opposing the stay in proceeding expeditiously with the action, and the potential prejudice to the party opposing the stay...

Excerpt: ...h 892, overruled on other grounds in Cedars‐Sinai Med. Ctr. v. Superior Court (1998) 18 Cal. 4th 1. CCP § 2023.030 starts “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the disco...

Excerpt: ...ctions to be raised in the demurrer.” The Declaration of Jorge Aguilar II, submitted in support of the Demurrer, shows sufficient efforts between the parties to meet and confer. 5 Merits. The purpose of a demurrer is to test the legal sufficiency of a pleading. Code Civ. Proc. §§ 422.10, 589. A party may object by demurrer on the ground that “[t]he pleading does not state facts sufficient to constitute a cause of action.” CCP § 430.10(e)...

Excerpt: ...a complaint is in some respects uncertain, because ambiguities can be clarified by modern discovery. Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty should only be granted when the pleading is so incomprehensible that a defendant cannot reasonably respond. Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135. Plaintiff's complaint alleges a single cause of action for ...

Excerpt: ...s a remedial statute and is to be liberally applied to encourage resolving cases on their merits. Riskin v. Towers (1944) 24 Cal.2d 274, and Elston v. City of Turlock (1985) 38 Cal.3d 227 (superseded by statute on other grounds as noted in Wilcox v. Birtwhistile (1999) 21 Cal.4th 973). Defendant, in its reply, also raises a service defect based upon improper service of the Amended Complaint. In the Court's review of the court file, the Court find...

Excerpt: ...is a genuine issue of material fact only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Id. at 845. The Court's sole function on a motion for summary judgment is issue‐ finding, not issuedetermination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material ...

Excerpt: ...idavit or declaration showing that the mistake, surprise, inadvertence or neglect was committed by counsel. The discretion granted by section 473(b) is liberally construed. The public policy preference for trial on the merits favors resolving doubts in favor of the moving party and relief should be granted except in cases of clear insufficiency of the “excuse” or unjustified delay in bringing the motion to the other party's prejudice. Elston ...

Excerpt: ...he issue of attorney's fees. Therefore, the Court assumes there is no opposition to the costs requested. In the context of the motion, several objections and requests for judicial notice have been made by the parties. The Court issues the following rulings on the requests and objections: Defendant's Request for Judicial Notice: Defendant requests judicial notice of three complaints filed by Plaintiffs' counsel in similar cases. These filed compla...

Excerpt: ...uld include a “sharing” provision that would permit Plaintiff's counsel to keep the documents for ten years and disclose them to attorneys with similar claims. Merits of Motion: Defendants seek a protective order pursuant to CCP §§ 2017.20 and 2019.030. The parties agree that discovery will require Defendants to produce proprietary and confidential information. The parties also agree that a protective order is appropriate to protect that in...

Excerpt: ...intiff, and shall render judgment in the plaintiff's favor for that relief, not exceeding the amount stated in the complaint. Ibid. In hearing the evidence, the Court in its discretion may permit the use of affidavits in lieu of personal testimony. CCP § 585(d). However, the facts stated in the affidavit or affidavits are required to be within the personal knowledge of the affiant and must be set forth with particularity, showing affirmatively t...

Excerpt: ...20 to set a remote deposition on August 19, 2020. On August 12, 2020, GM objected. The objections are: irrelevance, compound, overbroad, unduly burdensome, vague, ambiguous, not particularized, attorney‐client privilege, attorney work product doctrine, trade secret, proprietary information, calls for speculation, outside the scope of discover, oppressive and harassing, financially burdensome and impracticable, documents outside the possession, ...

Excerpt: ...arty may move for an order compelling the production. CCP § 2031.320. Plaintiffs propounded Set Three and Set Four of Requests for Production on May 28, 2020 and June 9, 2020. The initial responses were deficient. After meet and confer efforts, Defendants agreed to provide supplemental responses. The supplemental responses were provided on September 18, 2020 and stated that responsive documents would be produced. They were not. The instant motio...

Excerpt: ...n October 21, 2015 and August 14, 2020, and/or the Rest Break Subclass between July 27, 2019 and August 14, 2020. They assert cause of action for failure to provide rest and meal periods, failure to reimburse expenses, and for penalties pursuant to various Labor Code violations related to the alleged violations. The proposed settlement provides for a maximum Gross Settlement Amount (GSA) of up to $180,000.00 to be paid by Defendant. The proposed ...

Excerpt: ...al. 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 where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530. However, liberality of pleading does n...

Excerpt: ... to the Motion. 7 Meet and Confer. The parties both provide support for meet and confer efforts, which included a meet and confer letter sent by Plaintiff on July 28, 2020. On August 4, 2020, Defendant agreed to provide an amended response to Special Interrogatory No. 3. The amended response was served on August 18, 2020. On September 14, 2020, Plaintiffs sent another meet and confer letter expressing their dissatisfaction with the amended respon...

Excerpt: ... in situations in which a lawsuit might not otherwise be economically feasible. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817. This fee shifting is only available in those cases in which the buyer prevails. Civil Code § 1794(d). What 2 it means for a buyer to prevail is not defined under the statute, but case law is instructive: …if the particular fee‐shifting statute does not define prevailing pa...

Excerpt: ...able 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. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245. Here, Plaintiff seeks to tax the $1,420 in costs listed under “Ot...

Excerpt: ...s a result of the further meet and confer efforts the only remaining issues are Form Interrogatories, 2.3, 2.4, 11.1 and 12.4. Joint Statement: At the last hearing on this motion, the Court ordered the parties to file a joint statement 5 days prior to this continued hearing detailing the remaining issues, if any, remaining in dispute after further meet and confer efforts. The parties have not done that. Instead, the moving party filed a “Joint ...

Excerpt: ...RANTED. Merits of the Motion. The party moving for summary judgment bears the initial burden to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. There is a genuine issue of material fact only if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standar...

Excerpt: ....10(f). A demurrer can be used to challenge defects that appear on the face of the 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,...

Excerpt: ..., there was no opposition to the merits or objection to timeliness of the service. However, on September 3, 2019, the County moved to set aside that order. A hearing was set for this set aside motion, before Judge Ryan, on September 23, 2019. The criminal defendant appeared in Court on September 9, 2020 at which time Judge Ryan ordered the bond reinstated and exonerated. Judge Ryan also vacated the County's motion to set aside the order. The Coun...

Excerpt: ...f is correct. In its decision, the court used January 15, 2019 at the cutoff date for liquidated damages because that was the date the Court determined from the evidence that the Defendant “…was precluded from doing further work on the project…” Upon further review, it appears that date may actually be January 21, 2019 as Plaintiff argues. If this is accurate, actual liquidated damages would be $9,000 (45 days @ $200) instead of $7,800 (3...

Excerpt: ... as inadmissible under People v. Sanchez (2016) 63 Cal.4th 665. Dr. Luce establishes that his opinion is based on his personal experience as a physician, as well as his review of the medical records in this case. While it is true that he does not appear to have directly spoken to anyone involved in the Plaintiff's treatment, he does have knowledge of the course of treatment based upon his review of the medical records. Additionally, Plaintiff's o...

Excerpt: ...ause of action alleged against her (negligent misrepresentation) on the undisputed fact that she owned no duty to Plaintiffs and there was no misrepresentation that caused them harm. Objections: Objection 1: Sustained, lacks foundation and personal knowledge. Objections 2‐10: Sustained, hearsay, lacks foundation and personal knowledge. Objection 11: Overruled. Objection 12: Overruled. Objection 13: Overruled. Objection 14: Overruled. Objection ...

Excerpt: ...le trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. Id. at 845. The Court's sole function on a motion for summary judgment is issue‐finding, not issuedetermination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” CCP § 437c(c). If the moving party does not meet the burden the motion...

Excerpt: ... declaration. Defendant's motion sets forth some meet and confer efforts, although the parties clearly were not working together in the spirit of resolving the issues. Nor is there a declaration regarding Defense counsel's efforts to contact Plaintiff to address the nonappearance as required under CCP §2025.450(b)(2). In Clement v. Alegre (2009) 177 Cal. App. 4th 1277, the California Court of Appeal for the First District, when faced with a simi...

Excerpt: ... that a “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On September 3 14, 2020, after the filing of the Motion for Summary Judgment (filed on July 15, 2020), Plaintiff dismissed a number of the causes of action involving defendant Daniel Lockwood. The remaining causes of action against...

Excerpt: ... of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.” Unruh‐Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (internal citations omitted). See also California Evidence Code section 450. While the Court will grant the r...

Excerpt: ...o remediate the dangerous condition of the property for over three years. The first citations issued in March of 2017. Since that date, the condition of the property has grown progressively more dangerous. Dozens of calls for service have been associated with the property, including at least one fire. Despite the passage of a reasonable time, Defendant is unwilling or unable to bring the property into compliance with all the applicable code secti...

Excerpt: ... of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.” Unruh‐Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (internal citations omitted). See also California Evidence Code section 450. While the Court will grant the r...

Excerpt: ... that a “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On September 3 14, 2020, after the filing of the Motion for Summary Judgment (filed on July 15, 2020), Plaintiff dismissed a number of the causes of action involving defendant Daniel Lockwood. The remaining causes of action against...

Excerpt: ...ant. 5 Motion to Strike Standard: A motion to strike can be used to attack the entire pleading, or any part thereof, including single words or phrases. Stearns Ranchos v. Atchison Topeka & Santa Fe Railway (1981) 19 Cal.App.3d 24. It is proper for the Court to strike any irrelevant, false or improper matter. CCP § 436(a). The Court can also strike any part of a pleading that is not drawn or filed in conformity with California law. CCP § 436(b)....

Excerpt: ...ent person” would do in the same situation. Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1354. The discretion granted by section 473(b) is liberally construed. The public policy preference for trial on the merits favors resolving doubts in favor of the moving party and relief should be granted except in cases of clear insufficiency of the “excuse” or unjustified delay in bringing the motion to the other party's preju...

Excerpt: ...use may include “[a] party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” CRC Rule 3.1332(c)(6). In determining whether to grant or deny a motion to continue, the Court considers a number of factors, as outlined in CRC 3.1332(d). Here, trial is not set until January, some four months from the motion date. No party has previously requested a continuance. The correspondence fi...

Excerpt: ...he Request is unverified and unsupported by a declaration. Therefore there is no evidence before the Court upon which to grant the request. Additionally, the Court finds that the Request, even if it had been supported by evidence, fails to provide grounds for a continuance under CCP §437c(h) and CRC 3.1332. The Court will therefore proceed and issue a ruling on the merits. Summary Judgment Standard: CCP § 437c states a motion for summary judgme...

Excerpt: ...ions 452, 452, and 453. That request is GRANTED. Merits of the Motion. As a preliminary matter, the motion was timely filed and served. Under CCP § 438(c)(1)(B)(2), a party may bring a motion for judgment on the pleadings on grounds that the complaint fails to state facts sufficient to constitute a cause of action against the moving defendants. The grounds for the motion must appear on the face of the challenged pleading(s) or be based on facts ...

Excerpt: ...endant Palo 2 Cedro Community Guild. (hereinafter “Defendant”) did not provide full and complete responses. Defendant has filed an Opposition to the Motion. Meet and Confer. The parties both provide support for meet and confer efforts, which culminated in a meet and confer letter sent by Plaintiff on the evening of August 5, 2020 requesting a response by August 7, 2020. Within that very narrow window, Defendant provided a response and left op...

Excerpt: ...1, 12.4, 12.6, and 12.7. He also seeks further responses to the Request for Production, Nos. 1, 6, 11, 16, 17, 20, 22 and 26. Plaintiff Spurgeon, through counsel, has agreed to produce further responses to interrogatory Nos. 2.5, 2.6, 6.2, 6.3, 6.7, 8.1, 11.2, and 12.6. Spurgeon has also agreed to provide a supplemental response to Request for Production No. 26. The evidence before the Court is that the agreed upon further responses have not been...

Excerpt: ... 21, 2015 and August 14, 2020, and/or the Rest Break Subclass between July 27, 2019 and August 14, 2020. They assert causes of action for failure to provide rest and meal periods, failure to reimburse expenses, failure to properly accrue and carry‐over sick leave and for penalties pursuant to various Labor Code 2 violations related to the alleged violations. The proposed settlement provides for a maximum Gross Settlement Amount (GSA) of up to $...

Excerpt: ... that would resolve the objections to be raised in the demurrer.” The Declaration of Ashley Arnett, submitted in support of the Demurrer, shows sufficient efforts between the parties to meet and confer. Merits. The purpose of a demurrer is to test the legal sufficiency of a pleading. Code Civ. Proc. §§ 422.10, 589. A party may object by demurrer on the ground that “[t]he pleading does not state facts sufficient to constitute a cause of acti...

Excerpt: ...t: The notice of motion for a motion to consolidate must be filed in all cases sought to be consolidated (CRC 3.350(a)(1)(B)) but the memorandum and evidence only need to be filed in the lowest case number. The notice of motion was not filed in the subrogation litigation (Case No. 193051). No objection has been raised to this defect. Despite the defect, it appears that all parties in both actions were served with the notice and motion. Without an...

Excerpt: ...arty may object by demurrer on the ground that “[t]he pleading does not state facts sufficient to constitute a cause of action.” CCP § 430.10(e). A meet and confer declaration has been provided, as required by CCP § 430.10. The Fifth Cause of Action alleges slander of title specifically caused by the 2015 Easement Deed. The elements of the tort of slander of title are (1) a publication, (2) without privilege or justification, (3) falsity, a...

Excerpt: ...f Shasta at the Department of Child Support Services. The Court does not believe Judge Wood's spouse or step‐daughter has any involvement in the investigation, management, prosecution or defense of this case but does disclose the employment relationship between County of Shasta and the Court's first degree relative as required by California Code of Judicial Ethics, Canon 3E(2). Tentative Ruling on Plaintiff's Motion to Reopen Discovery: Plainti...

Excerpt: ...erance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, . . . or of any separate issue . . . , preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” The Court has discretion to sever a statute of limitations defense raised in the answer, and try that defense first. Aerojet...

Excerpt: ...ness of documents specified in the requests admitted. CCP § 2033.280(b). Failure to respond also waives any objections to the discovery propounded. CCP § 2033.280(a). Defendant's moving papers sufficiently demonstrate that the plaintiff has failed to respond to Defendant's Request for Admissions within the required time frame. The Motion is GRANTED. CCP § 2033.280(c) requires that sanctions be imposed where a party fails to timely respond to a...

Excerpt: ... to the Judicial Council, by e‐mail or facsimile, a copy of the endorsed, filed caption page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and a conformed copy of any order issued pursuant to this section, including any order granting or denying a special motion to strike, discovery, or fees. While the parties may have done so, there is no evidence in the file that either party complied with this re...

Excerpt: ...ctions Defendants have asserted as to the Declaration of David Jackson. Some of the factual assertions are clearly contradicted by undisputed evidence offered in support of the motion and some of the opinions do indeed appear to be speculation and conjecture. However, adequate foundation is established to qualify this witness to opine concerning the standard of care associated with school administration, including the implementation and use of al...

Excerpt: ...) permits a party propounding discovery demands to “move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete.” A motion brought under this section must include a declaration describing efforts to meet and confer in good faith. CCP § 2031.310(b)(2). CCP § 2031.310(h) provides that the court “shall impose a monetary s...

Excerpt: ...t or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response...

Excerpt: ...o be done by a party.” Generally speaking, in the context of continuances, good cause includes a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts. CRC Rule 3.1332(c)(6). Plaintiffs in this case have moved to continue on the basis of ongoing health problems, exacerbated by the COVID‐19 pandemic. Both plaintiffs have surgeries that have been rescheduled for July and August, ...

Excerpt: ...0.41(a)(3). Defendant did not submit a meet and confer declaration in support of the present demurrer. Defense counsel is admonished for failing to comply with the meet and confer requirement. Typically the Court would continue a demurrer if the meet and confer requirement has not been satisfied; however, based on the papers, continuing the matter to meet and confer does not appear likely to result in a resolution and therefore the Court will iss...

Excerpt: ...plaintiff, and shall render judgment in the plaintiff's favor for that relief, not exceeding the amount stated in the complaint. Ibid. In hearing the evidence, the Court in its discretion may permit the use of affidavits in lieu of personal testimony. CCP § 585(d). However, the facts stated in the affidavit or affidavits are required to be within the personal knowledge of the affiant and must be set forth with particularity, showing affirmativel...

Excerpt: ...itute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects that appear on the face of the 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, deduc...

Excerpt: ...aintiff's emotional distress claims. It propounded discovery seeking information from January 2015 to the present. Plaintiff provides substantive responses but limited the timeframe. Defendant also seeks to compel Plaintiff to sign authorizations for the release of her medical records related to emotional distress for the same time period and for records with the EDD related to her prior disability claim for the period of November 2016 through th...

Excerpt: ...inst a health care provider based upon such person's alleged professional negligence.” The one‐year period runs from the date “the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury.” Ibid. The one year statute applies to other causes of action that arise out of the same facts as professional negligence. Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347. In deciding wheth...

Excerpt: ...American Directions Research Group, Inc. et. al. (hereinafter Hender) now pending before the U.S. District Court for the Eastern District of California. Plaintiff cites as authority California Code of Civil Procedure section 410.30 and Caifa Prof. Law Corp. v. State Farm fire & Cas. Co., 15 Cal. App. 4th 800, at 804. Both the present matter and the Hender action are proceeding on the same theories of liability for the same parties. The fact that ...

Excerpt: ...efore the depositions (previously noticed for May 25, 2020 in Sacramento, California) are outside the geographical limitations established by CCP § 2025.250(a). Pursuant to CCP § 2025.260, the Court may, in the interest of justice, order that a party's deposition be taken at a more distant location than that permitted under CCP § 2025.250(a). As to the specifics of this case, the Court also finds that there was no stipulation for either Defend...

Excerpt: ...roduce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. A motion brought under this section must be accompanied by a meet and confer declar...

Excerpt: ...der the Government Claims Act. That claim was denied. Plaintiff filed the present action on July 10, 2017. Motion for Summary Judgment Standard: CCP § 437c states a motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue of material fact and that the moving party is entitled to judgment as a matter of law. “A defendant…has met his or her burden of showing that a cause of action has no meri...

Excerpt: ...28.75 pursuant to Civil Code § 1794(d) of the Song‐Beverly Consumer Warranty Act. The attorney's fees relate to the work of six attorneys for a total of $20,152.50. Plaintiff then requests a .5 lodestar enhancement making the total $30,228.75. Plaintiffs also requests costs in the amount of $7,144.65. Authority: The Song‐Beverly Act contains a cost‐shifting provision that specifically allows prevailing buyers to 5 recover their costs, incl...

Excerpt: ...nfer Efforts: The Court finds that the meet and confer efforts were minimal and ineffective; however, it appears that further meet and confer efforts would be unproductive. The Court will therefore proceed to issue a ruling on the merits. Standards of Demurrer: A generally demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on t...

Excerpt: ... conducted under Vehicle code section 13559 and CCP section 1094.5. Combs v. Pierce (1991) 1 Cal.App.4th 568, 575. The reviewing court must exercise its independent judgment in determining whether the weigh to the evidence supports the Respondent's findings. Berlinghieri v. DMV (1983) 33 Cal.3d 392, 394. Where the evidence is subject to conflicting inferences of a crucial issue, the trial court may draw its own inferences from the evidence in the...

Excerpt: ...e to appear for Plaintiff's deposition. The deposition was set to occur on February 28, 2020. Prior to the deposition date, Plaintiff's counsel stated that he would not allow the deposition to proceed unless Defendant provide further responses to discovery and other information related to documents in Defendant's possession. He also sought to limit the scope of the deposition. Defendant agreed to and in fact did provide further responses in the a...

Excerpt: ...to three of the causes of action on the ground they are preempted by the California Uniform Trade Secrets Act (“CUTSA”). Demurrer Standards: A demurrer should be sustained if the complaint fails to “state facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects that appear on t...

Excerpt: ...'s attendance and performance during his employment at Camping World. Neither party directly addresses the exact dates Plaintiff was employed at Camping World, other than his resignation date of April 5, 2019. CCP § 2017.010 provides that parties have the right to discover “any matter, not privileged, that is relevant to the subject matter involved in the pending action.” California Constitution Article I, § 1 expressly grants each individu...