Excerpt: ... 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 standard of proof. Id. at 845. The Court's sole function on a motion for summary judgment is issue�...

Excerpt: ...ter service upon the party of written notice of entry of the order.” The time to file a motion for reconsideration expired on April 18, 2020 (10 days plus 2 for electronic service under CCP section 1013). Pursuant to COVID‐19 Implementation Order 20‐2020, “for purposes of computing time for filing papers with the Court under Code of Civil Procedure Sections 12 and 12a, from April 14, 2020, to May 4, 2020, inclusive, are deemed holidays . ...

Excerpt: ...se of action.” CCP § 430.10(e). Timeliness. “A person against whom a complaint or cross‐complaint has been filed may, within 30 days after service of the complaint or cross‐complaint, demur to the complaint or cross‐ complaint.” CCP § 430.40. That code section “thus uses the permissive expression ‘may,' not the mandatory term ‘must.' ” McAllister v. County of Monterey (2007) 147 Cal. App. 4th 253, 280. The “time limitation...

Excerpt: .... CCP § 657(1), (6), (7). The grounds for Plaintiff's motion arise from the Court's consideration of the Declaration of Donna Sanders, an alleged failure of the Court to consider Plaintiff's evidence, allegations that the Court ignored the evidentiary burden and failed to liberally construe Plaintiff's evidence. The Court finds these contentions without merit. The Sanders Declaration was reviewed and accepted by the Court. Plaintiff did not obje...

Excerpt: ...dical records (which would include billing information) were identified in Pullen's responses to Series 6 of the Form Interrogatories. Having put the medical records at issue, Pullen cannot now quash their production. Pullen argues that the request is “burdensome, harassing, oppressive and solely designed to increase costs.” No evidence has been provided to support that conclusion. In fact, no evidence has been provided in support of the moti...

Excerpt: ...o. (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 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...

Excerpt: ...ditional work for the Court, and Plaintiff's counsel is advised to comply with Rule 3.1324 in the future. 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 granti...

Excerpt: ...mendment”) provide that net proceeds shall be distributed first 9 to reimburse Mr. Sarid for the $4,422.38 in tax payments, and then to reimburse Mr. Sarid for the $174,000 down payment for the subject property. Any shortfall shall be attributed to Mr. Austin Cohen by way of a judgment if not paid within 30 days. The Amendment, entered into shortly before the close of escrow on the property, provides for the Court to determine allowable expendi...

Excerpt: ...Road and predominantly reside in a subdivision less than a ½ mile north of Defendants' property. Plaintiffs' only legal access appears to be Sand Pit Road. Plaintiffs claim that they and their predecessors have used the route for a decade without permission of any land owner. On or about November 4, 2019, Defendants blocked Sand Pit Road. Since that time, Plaintiffs have used a separate paved road, which also crosses Defendants' property, to acc...

Excerpt: ...ot filed an opposition. Media's Objections to Evidence: Objection No. 1: Sustained Objection No. 2: Sustained Objection No. 3: Sustained Objection No. 4: Sustained as to Exhibit 5 only, Overruled as to remainder Objection No. 5: Overruled Objection No. 6: Sustained as to Exhibit 14 only, Overruled as to remainder Objection No. 7: Overruled Objection No. 8: Overruled Objection No. 9: Overruled Objection No. 10: Overruled Objection No. 11: Overrule...

Excerpt: ...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 take judicial notice of the existence of pleadings in that case, the Court declines to take judicial notice of t...

Excerpt: ... fraud or malice required to support a punitive damage award. Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63. In order to state a prima facie case of punitive damages a complaint must set forth the elements of punitive damages. Id. These allegations include that a defendant was guilty of oppression, fraud or malice. Id. Plaintiffs' complaint requests punitive damages but alleges no facts that would constitute op...

Excerpt: ...d Defendant had a financial transaction, Plaintiff kept an account of the debits and credits involved in the transaction(s); and Defendant owes Plaintiff $2,426.16, all of which comprise entitlement to judgment on an open book account claim. Plaintiff's evidence establishes that Plaintiff and Defendant, by words or conduct, agreed that the amount stated in the account was the correct amount owed to Plaintiff; Defendant, by failing to cancel the a...

Excerpt: ...pposition.” The opposition was not in fact late due to the recent court closure in response to the coronavirus. The objection is OVERRULED. Form Interrogatory 15.1: This interrogatory requires a responding party to respond separately to each denial of a material allegation and each special or affirmative responses. Each separate responses must provide supporting facts and identify witnesses and documentation. Defendant has alleged 39 separate a...

Excerpt: ... triable issues of material fact. As a preliminary note, a significant portion of Plaintiff's Opposition to the motion is devoted to issues related to a future motion to amend. The Court declines to consider these arguments. “[T]he pleadings determine the scope of relevant issues on a summary judgment motion.” Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal. App. 4th 60, 74. A defendant moving for summary judgment need on...

Excerpt: ... Pursuant to CCP § 1032, the party prevailing in most civil cases may recover costs of suit in any action or proceeding. See CCP § 1032(b); Santisas v. 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 po...

Excerpt: ...the motion has been filed more than six months after the dismissal, so the mandatory terms of CCP § 473(b) are inapplicable. There is no reason for the Court to consider exercising its discretion to relieve Plaintiff from the dismissal order, based upon the Declaration of Maria Bradish. At no time has the Plaintiff exercised diligence in this case. The Complaint was filed In March of 2018. 1) Plaintiff failed to timely serve the complaint until ...

Excerpt: ...udicial Notice. The motion requests the Court take judicial notice of its own order of January 27, 2020. The request is GRANTED. Legal standard for a motion for protective order. “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization 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 p...

Excerpt: ... in the other, show satisfactorily that sufficient grounds exist therefor.” Preliminary injunctive relief is available to a party “who demonstrates either: (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor.” (internal citations omitted) El Pollo Loco, Inc. v. Hashim (9th Cir. 2003) 316 F.3d 1032, 1038. These fac...

Excerpt: ...oinder of that party would have been permitted by the statutes governing joinder of parties.” CCP § 428.20. The Court finds that the proposed cross‐complaint arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in the complaint. Specifically, the proposed cross‐complaint alleges causes of action for equitable indemnification, express indemnity, and decla...

Excerpt: ...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) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demur...

Excerpt: ... “any matter relevant to the leave requested,” which includes but is not limited to: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 2 (3) Any likelihood that permitting the discovery or hearing the discovery motion will pre...

Excerpt: ...ay move for judgment on the pleadings if the complaint states sufficient facts to constitute a cause of action and the answer does not state facts sufficient to constitute a defense to the complaint. Here, Plaintiff has alleged a common count cause of action to collect on a debt; specifically, account stated, open book account and money lent. “The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain...

Excerpt: ...al Notice of Defendant's answers to discovery where Defendant has admitted, that all the allegations are true, thus entitling Plaintiff to judgment on the pleadings. Request for Judicial Notice: Plaintiff's request for judicial notice is unopposed and GRANTED. Merits of Motion: Plaintiff has alleged a common count cause of action to collect on a debt. “The only essential allegations of a common count are ‘(1) the statement of indebtedness in ...

Excerpt: ... “any matter relevant to the leave requested,” which includes but is not limited to: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 2 (3) Any likelihood that permitting the discovery or hearing the discovery motion will pre...

Excerpt: ...Notice: Defendants requests for judicial notice are GRANTED. 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 as to the challenged cause of action 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 merit if the party has s...

Excerpt: ...order. The motion shall be “based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” Id. The application must include an affidavit showing what application was made before, when and to what judge, what orders or decision were 2 made, and what new or different facts, circumstances, or law are claimed to be s...

Excerpt: ...t, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies t...

Excerpt: ...icant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this secti...

Excerpt: ... GRANTED. Merits of the Motion: CCP §396b(b) provides in relevant part: In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) wh...

Excerpt: ...al. App. 4th 1462, 1468. CCP § 1281.2 requires the court to grant a petition to compel arbitration where it determines that an agreement to arbitrate the controversy exists. “When presented with a petition to compel arbitration the trial court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal. App. 4th 50, 59. A party seeking to compel ...

Excerpt: ...overruled. Merits of Motion. The purpose of a summary judgment motion is to cut through the pleadings to determine whether trial is necessary. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 841. The Court must grant the motion if all the papers submitted show “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.” Id. “A defendant or cross‐defendant has me...

Excerpt: ...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 the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects th...

Excerpt: ...asement for ingress and egress to and from the Upper Sacramento River. The Amended Judgment also ordered Defendants to remove or modify the portion of the chain link fence that prevents Plaintiff's use of the easement. Now Plaintiffs seek further orders against the Defendants on the grounds that the gate and chain link fence continue to interference with Plaintiff's easement. The general rule is “the owner of the servient tenement may make any ...

Excerpt: ...ss the moving party's evidence. Further, the separate statement in opposition is not in any of the formats prescribed by CRC 3.150(h). The Court will overlook the procedural defects and issue a ruling on the merits. Evidentiary Defects: Defendant has submitted no evidence in support of its opposition and separate statement. The Court notes that Defendant's separate statement cites to a declaration but no declaration was submitted. Therefore, ther...

Excerpt: ...ear the motion on its merits. Request for Judicial Notice. The Court may take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States” under Evidence Code section 452(c). Further, under § 452(b), the Court is permitted to take notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public e...

Excerpt: ...hould pursue claims against, and that if a claim was submitted to the City, it would be denied and forwarded to the lessee of the property. In the months following, counsel for the Petitioner's legal assistant corresponded with several insurers. On July 8, 2019, the insurer rejected the claim and suggested it be forwarded to the City of Redding, who was responsible for the maintenance of the parking lot. Petitioner ultimately submitted a claim an...

Excerpt: ...rial.” CRC Rule 3.1332(c)(7). Counsel's vacation has been found to be good cause (albeit in a stipulated continuance). See Cotton v. StarCare Medical Group (2010) 183 Cal. App. 4th 437. Trial counsel's engagement in another trial is good cause. See, e.g., Oliveras v. County of Los Angeles (2004) 120 Cal. App. 4th 1389. In determining whether to grant or deny a motion to continue, the Court considers a number of factors, as outlined in CRC 3.133...

Excerpt: ...erved on the third party. CRC 3.1346. No proof of service was filed in this matter, however, a responsive pleading by the Defendants indicates that service of the motion was made by mail on December 13, 2 2019. Furthermore, the motion is untimely under CCP § 2025.480, which requires the motion to compel attendance at a deposition “shall be made no later than 60 days after the completion of the record of the deposition.” Although the motion i...

Excerpt: ...ableness of the hourly rate or the amount of hours spent. As a preliminary note, a Substitution of Attorney was filed on behalf of Defendant LATAP on November 25, 2019. LATAP appears in pro per. Mr. Cogan remains attorney of record for Defendants Henry Lopez and Jan Lopez. Mr. Cogan has filed an objection on behalf of all three defendants, despite the fact that he is no longer attorney of record for LATAP. The Court has reviewed the briefing and,...

Excerpt: ... the Court can also retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. The parties entered into a settlement orally in open court on June 24, 2019. The terms of the settlement were memorialized by the Court in writing and signed by both parties and attached to the minute order of June 24, 2019. The settlement provided that Defendant would pay the amount of $15,000.00, plus 7% i...

Excerpt: ...y. Objections: Plaintiff has submitted four objections to evidence. The objections are OVERRULED. Summary Adjudication Standard: CCP § 437c states a motion for summary adjudication shall be granted if all the papers submitted show that there is no triable issue of material fact as to the challenged cause of action 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 ca...

Excerpt: ... uncertain. CCP § 430.10(e) & (f). Procedural Issues: Cornerstone's opposition claims that the present demurrer is untimely. Cornerstone's Proof of Service of Summons appears to make reference to the Plaintiff's summons for the Complaint. The Court notes that Cornerstone has not obtained a summons as to the new party, BCA, as required by CCP 428.60. The proof of service is therefore invalid. Without proper proof of service on BCA, the timeframe ...

Excerpt: ...e the motion has not been withdrawn, the Court will rule on the merits. Legal authority. Which county constitutes the proper venue in a particular case is determined 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 resid...

Excerpt: ...rded by Defendant to the insurer from April 17, 2008 to May 17, 2008 in order to open the claim regarding the incident of Jasmine Bolds here (sic).” On the basis of the authority cited by Defendant, Soltani‐Rastegar v. Superior Court (1989) 208 Cal.App.3d 424, the Court finds that the documents requested are protected by the attorney client privilege; however, the key document sought here is an undated sweep log. Defendant admits that the und...

Excerpt: ...ted. Finally he seeks monetary and terminating sanctions for Plaintiff's various abuses of discovery. An unverified discovery response is ineffective and is the equivalent of no response at all. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. Plaintiff while represented by counsel provided unverified discovery responses. Plaintiff's counsel then withdrew. Defendant sought to further meet and confer directly with the Plaintiff about the...

Excerpt: ... However, even if the motion were to have been filed in a timely fashion, it is unlikely that the Court would grant it on the merits. There is no absolute right to counsel in civil cases. Payne v. Superior Court (Los Angeles) (1976) 17 Cal. 3d 908. A trial court is to exercise its “sound discretion” in determining the appropriate method by which to ensure meaningful access to the court. Jameson v. Desta (2009) 179 Cal. App. 4th 672, 678. Want...

Excerpt: ... forms, including the proposed order, on the clients as well as information related to why the motion has been brought instead of filing the substitution of attorney. Counsel has shown in general terms that there has been a violation of the AttorneyClient Agreement i.e. a failure to pay. Counsel has not provided an explanation as to why a substitution of attorney cannot be obtained from the client. No information has been provided that Counsel ha...

Excerpt: ...smissal was entered due to the mistake, inadvertence or error of Plaintiff's counsel, under CCP § 473(b). The matter was continued to August 26 to provide Plaintiff's counsel with an opportunity to present additional information as to the reason two weeks' notice was insufficient time to secure witnesses, and the reason why a motion was not filed in advance of the trial date. Plaintiff's counsel provided a declaration stating that it is the cust...

Excerpt: ...Motion: CCP § 474 permits a plaintiff to add a Doe defendant if they were ignorant of their identity when the action was commenced. When a person is sued by a fictitious name on the ground that plaintiff is ignorant of the true name of such defendant, the ignorance must be real and not feigned. Herschfelt v. KnowlesRaymond Granite Co. (1995) 130 Cal.App.2d 347, 351‐52. If this requirement is met, the Doe defendant is considered a party to the ...

Excerpt: ...ibits, including Exhibit 8 which appears to be a combined Notice of Motion and Motion to Continue Trial and Reopen Discovery. Exhibit 8 contains three separate pleadings: a Notice of Motion, Memorandum of Points and Authorities; and Declaration of Michael Cogan. None of these pleadings are signed. At the time of the ex parte hearing of July 25, 2019, the parties stipulated to continue trial and the Court granted an order shortening time relative ...

Excerpt: ... 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 separate motions. As timely notice of all of Plaintiff's requests have been provided, albeit in the improp...

Excerpt: ...for the benefit of Plaintiffs. CCP Section 526 sets forth those situations where an injunction is proper. The situation at issue is contained in CCP § 526(a)(3) which states in pertinent part, “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the actio...

Excerpt: ..., second, third, fifth, sixth, seventh, eighth, ninth, and tenth causes of action, pursuant to CCP § 430.10, on grounds that those causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. Meet and Confer. CCP § 430.41 requires the demurring party to meet and confer “in person or by telephone” with the party who filed the pleading subject to demurrer before filing a demurrer. Defense counsel's declar...

Excerpt: ...) the causes of action for Premises Liability and Wrongful Death were improperly filed without leave of court. Legal standard on demurrer. A demurrer can only be used to challenge defects that appear on the face of the complaint or matters that may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881. The “face of the complaint” inc...

Excerpt: ...l basis upon which they are entitled to relief under CCP § 430.10(e), specifically as to a duty owed. As such, the pleadings fail under CCP § 430.10(f) as uncertain. Defendant requests in a footnote that the Court take judicial notice of the original complaint. The request for judicial notice, although procedurally deficient, has not been objected to and is therefore GRANTED. The present case arises from Plaintiff's fall from a bunk bed or slee...

Excerpt: ...ffs challenge whether Defendant has its initial burden to establish the existence of an agreement to arbitrate. While Plaintiffs are correct that Defendant did not attach a copy of the agreement, the moving papers quote the language of the agreement. Further, Plaintiffs own complaint provides a copy of the agreement that contains the arbitration terms and their supporting correspondence shows that they previously claimed that there was an agreeme...

Excerpt: ...ion rather than merely convenient or beneficial to its preparation and “reasonable in amount.” CCP § 1033.5(c)(2) and (3). The right to costs is statutory in nature and a court has no discretion to award costs not authorized by statute. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. However, the court does have the power to disallow costs “allowable as a matter of right” if they were not “reasonably necessary,”...

Excerpt: ...ts, Plaintiff was again seen on November 30, 2015 due to an acute injury to Plaintiff's right elbow. Defendant noted the elbow suffered from a nondisplaced fracture of the radial head. Plaintiff was placed in a cast and seen two weeks later for removal of the cast and follow up. While subsequent x‐rays showed healing of the fracture, plaintiff continued to complain of discomfort and additional diagnostic procedures showed fragments and a need f...

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: ...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: ...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: ...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: ... (Fifth COA), conspiracy (Sixth COA), defamation (Ninth COA), intentional infliction of emotional distress (Tenth COA), and negligent infliction of emotional distress (Eleventh COA). Defendant characterizes each cause of action as being supported by Lockwood's participation in a company investigation which would be protected activity. Anti‐SLAPP Standards: A SLAPP suit seeks to chill or punish a party for exercising their constitution rights to...

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: ...of public policy. Plaintiff's Objections to Defendant's Evidence: No. 1: Overruled. No original signature has been provided on the declaration. However, the Court presumes that counsel maintains the original signed declaration which can be easily remedied. No. 2: Sustained. No. 3: Overruled. The evidence is not considered for the truth of the legal conclusion asserted, as the reasons for termination are ultimately to be resolved by the trier of f...

Excerpt: ...The format of a separate statement of facts is controlled by CRC 3.1350(d)(e) which requires the separate statement to be in a two column format. Defendant's separate statement of facts did not follow the mandatory form imposed by the California Rules of Court. Further, the separate statement must separately identify each cause of action that is the subject of the motion. CRC 3.1350(d)(1)(A). The defects in the separate statement could have justi...

Excerpt: ...t case involves three of the drivers. The Allstate case involves the same three drivers plus a fourth. The factual and legal issues are therefore identical and consolidation is appropriate. Plaintiff Stevenson argues that she will be prejudiced because there will be a longer trial and she will be faced by additional attorneys. This argument is simply untrue. Stevenson is a party to both actions already. If the matters are not consolidated she wil...

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: ... 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: .... 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: ... 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: ...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: ...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: ...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: ... Rice (deceased) was negligent but that her negligence was not a substantial factor in causing harm to the Plaintiff. Merits of Motion: CCP § 2036.010 permits for a party to obtain discovery after judgment is entered if an appeal has been taken or the time for an appeal has not expired. A party seeking post judgment discovery must obtain leave of court. CCP § 2036.030(a). The motion shall set forth: 1) the names and addresses of the person from...

Excerpt: ... 1: Sustained, except as to Exhibit B Objection 2: Sustained, except as to Exhibits A‐D Objection 3: Sustained, except as to Exhibits B‐E Objection 4: Sustained. Objection 5: Sustained. Timeliness. While defendant is correct that the opposition was untimely filed and served, by addressing the opposition on its merits, defendant has waived any irregularities in the notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The opposition sha...

Excerpt: ...complaint is one filed by a defendant against the plaintiff for a related cause of action. CCP § 4256.30. A related cause of action is defined as “a cause of action which 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). CCP § 426.50 permits a party who failed to timely file a compulsory cross‐complaint due to ove...

Excerpt: ...that defendant has satisfied the meet and confer requirements for a demurrer. Request for judicial notice. Defendants' request for judicial notice is granted. Demurrer standard. The purpose of a demurrer is to test the legal sufficiency of a pleading. CCP §§ 422.10, 589. A demurrer is properly sustained where the complaint fails to state facts sufficient to constitute a cause of action (CCP § 430.10(e)) or is uncertain (CCP § 430.10(f)). A de...

Excerpt: ...019 against, Defendant Craig E. Miller, as Successor Trustee of the Miller Family 1993 Revocable Trust. A first amended complaint was filed on March 1, 2019 and alleges causes of action for breach of secured 2 promissory note, judicial foreclosure, common count, foreclosure of equitable lien and declaratory relief. Defendant filed his answer and cross‐complaint on April 9, 2019. The cross‐ complaint named Plaintiff as a Cross‐Defendant as w...

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...

Excerpt: ...rits, plaintiff has waived any irregularities in the notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The motion should be heard on its merits. Request for Judicial Notice. The Court grants both parties' requests for judicial notice. Factual background. This motion is based on a provision in the Credit Agreement, a document which forms part of the contract sued upon by plaintiff in this action. The Credit Agreement has a clause in par...