Excerpt: ...application. The moving party bears the burden to provide “facts sufficient to justify the sealing.” Rule 2.551(b)(1). “The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication. [Citation.] Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are ‘ “presumptively open.” ...

Excerpt: ...that case, the Appellate Court was considering argument to a jury by a prosecutor in which the prosecutor repeatedly emphasized a study relied on by an expert. The Court stated that statements by counsel are not evidence. The Richardson opinion did not stand for the proposition that declarations by counsel must therefore be ignored by courts. The Court rules as follows: 1. Overruled on all grounds. 2. Sustained as to the mediation privilege as to...

Excerpt: ...l the papers submitted show that there is no triable issue as to any material fact and is therefore entitled to judgment as a matter of law. Id.; see CCP § 437c(c). A plaintiff moving for summary judgment has met its burden of showing that that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff has met that burden, the bu...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ...Attorney Fees and Costs. California Rule of Court (CRC) 7.955(b) requires that the Petition provide sufficient information for the Court to find that the attorney fees sought are reasonable. CRC 7.955(c) requires a declaration by counsel addressing each of the factors set forth in subsection (b). The declaration here merely states that the matter involves an adult with a disability, and that a standard 33 1/3% contingency fee was negotiated in th...

Excerpt: ...rden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto CCP § 437c(p)(1). Summary judgment may be granted where all the papers submitted...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ...mstances, an irregularity has materially affected substantial rights and prevented a fair trial is addressed to the discretion of the trial court.” Id. This is because the trial court has “heard and seen the witness and having knowledge of circumstances which may not be produced in the record.” Id. Here, the complained‐of act is the release of exhibits (occurring January 18, 2018), and subsequent destruction of one exhibit (April 18, 2018...

Excerpt: ... waived his rights to mediation/arbitration and for appointment of an arbitrator. To effectuate justice the Court will briefly clarify its prior ruling. On September 9, 2019, the Court issued an order compelling arbitration which also included a finding that mediation was a contractual prerequisite to arbitration. Based on this ruling, the Court expected the parties would have proceed with mediation and if unsuccessful would have then initiated t...

Excerpt: ....) No objection to notice having been made by Plaintiff, the Court exercises its discretion to rule on the merits of the motion. Merits of the Motion: Defendant seeks an order compelling Plaintiff to provide responses to Defendant's Requests for Production, Set Six on grounds that Plaintiff has failed to respond to these discovery requests, even after Defendant reminded Plaintiff of the outstanding requests. The motion is brought pursuant to Code...

Excerpt: ... is a Quiet Title and Declaratory Relief action. The Complaint was filed August 13, 2019. A lis pendens was filed the same day. The plaintiff is Barbara Alt. The defendants are Alma Robertson (deceased), all successors of Alma Robertson, and Bonnie Zuckswert. Defendant Bonnie Zuckswert filed a response on September 19, 2019. The instant motion was timely filed on October 24, 2019. It is unopposed. Meet and Confer. “The moving party shall file a...

Excerpt: ...dant and counsel elected not to participate in. Sanctions were therefore imposed. Mr. Pickering now brings this motion, asking the Court to reconsider the imposition of sanctions related to the Motion to Compel. CCP § 1008, which governs motions for reconsideration, provides that: [w]hen an application for an order has been made to a judge, or to a court, and . . . granted, . . . any party affected by the order may, within 10 days after service ...

Excerpt: ...ent Amendment to the Agreement (“the Amendment”) were entered into by individuals who were not named parties to the action and to which the Court's jurisdiction does not extend. This jurisdictional concern has been previously raised by the Court to counsel, yet it was not sufficiently briefed in conjunction with the instant motion. The Agreement and the Amendment provide that net proceeds shall be distributed first to reimburse Mr. Sarid for ...

Excerpt: ...ettlement has been made in good faith. CCP § 877.6(a). A good faith determination bars any other joint tortfeasors or co‐obligors 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...

Excerpt: ...s of action for: 1. Intentional Infliction of Emotional Distress; 2. Breach of Contract; 3. Breach of Implied Covenant of Good Faith and Fair Dealing; 4. Wrongful Termination in Violation of Public Policy; and 5. Intentional or Negligent Misrepresentation. The complaint contained a specific request for punitive damages in the first cause of action. None of the other causes of action contained a specific request for punitive damages. Each cause of...

Excerpt: ...ity Care Facilities Act (“The Act”). “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. A...

Excerpt: ... evidence in its Reply brief, filed November 6, 2019. For obvious reasons involving due process, new evidence is not permitted with reply papers, and is only allowed in exceptional cases. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010. The Court declines to consider the new evidence in the reply briefing. Merits of Motion: There is no dispute that the parties together entered into the Agreement, and that the Agreement contains an a...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ...nly allowed in exceptional cases. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010. Because of the fundamental unfairness to opposing counsel, were the Court to consider these new pieces of evidence without providing an opportunity to respond, the Court declines to consider the new evidence in the reply briefing. Requests for Judicial Notice: Both parties request judicial notice be taken of the published opinion of the Third District...

Excerpt: ...nly allowed in exceptional cases. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010. Because of the fundamental unfairness to opposing counsel, were the Court to consider these new pieces of evidence without providing an opportunity to respond, the Court declines to consider the new evidence in the reply briefing. Requests for Judicial Notice: Both parties request judicial notice be taken of the published opinion of the Third District...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ...esented to the Shasta Reginal Medical Center Emergency Department on December 31, 2016 at 9:52 a.m. He was complaining of severe back pain and reported that he had tripped earlier that day. Plaintiff had a history of bulging discs. At 9:59 a.m. he was evaluated by Defendant Betsy Oppezzo, PA. Plaintiff complained of explosive pain which was exacerbated with ambulation and twisting. Ms. Oppezzo's examination showed Plaintiff to be alert but in mil...

Excerpt: ...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 facts to be 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 issue‐determination...

Excerpt: ...nted if the following conditions are met: (a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses. (b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits. (c) The court has determined either of the following: (1) The moving party would not in the exercise of reasonable diligence have determined...

Excerpt: ... in the related Federal Bankruptcy cases. Cal. Evidence Code section 452 governs the taking 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 citation...

Excerpt: ...A Notice of Conditional Settlement of the entire action was filed by Plaintiff on August 17, 2018, indicating that a Request for Dismissal would be filed no later than November 15, 2021. An Order to Show Cause Re: Sanctions issued on April 19, 2019 to Plaintiff and Counsel for failure to appear at the Resolution Review hearing on April 15, 2019 and failure to timely proceed with default. This matter has been continued several times due to the com...

Excerpt: ... the pleadings.” Coyne v. Krempels (1950) 36 Cal. 2d 257, 262. A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for a demurrer has expired. Except as provided by statute, the rules governing demurrers apply. Cloud v. Northrup Crumman Corp. (1998) 67 Cal. App. 4th 995, 999. A motion for judgment on the pleadings is proper when “the complaint does not state facts sufficient to constit...

Excerpt: ...and October of 2017 at two different firms. Legal Standard. An attorney has a duty to maintain inviolate the confidence and, at every peril to himself or herself, to preserve the secrets of his or her client. Bus. & Prof. Code § 6068(e). The fiduciary nature of the attorneyclient relationship is one of the highest character, and is owed even after the termination of the relationship. Styles v. Mumbert (2008) 164 Cal. App. 4th 1163, 1167; citing ...

Excerpt: ...H Kelly requests that the Court take Judicial Notice of 16 items, including pleadings filed by JH Kelly and AECOM in this Court and in Federal Court. Cal. Evidence Code section 452 governs the taking 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.�...

Excerpt: ...ction 128.5.” There does not appear to be any allegation here that the motion was filed for the purpose of causing unnecessary delay (in fact, as Defendant points out, several of the defendants charged in the FAC have not yet been served). The allegation is limited to the argument that the motion was frivolous. CCP §128.5 defines frivolous as “totally and completely without merit or for the sole purpose of harassing an opposing party.” “...

Excerpt: ...ction of Emotional Distress; 2. Breach of Contract1 ; 3. Breach of Implied Covenant of Good Faith and Fair Dealing; 4. Wrongful Termination in Violation of Public Policy; and 5. Intentional or Negligent Misrepresentation. On March 25, 2019, the Third Cause of Action for Breach of Implied Covenant was dismissed. On April 8, 2019, the Court sustained with leave to amend a demurrer as to the remaining four causes of action. The same day the Court gr...

Excerpt: ...for the full amount demanded” in the underlying action. Defendant has objected, stating that he is complying with the terms of the agreement, and making scheduled payments, but never agreed to a term exposing him to liability greater than $15,000. Defendant has indicated he is willing to sign the settlement paperwork and comply with the terms to which he agreed, omitting item 4(E). This matter settled in open court on June 24, 2019. The ten mat...

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

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

Excerpt: ...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: ... 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: ... determination as to his settlement of $5,000 payable to Plaintiffs. CCP § 877.6(a)(1) provides that a party may move by noticed motion for a hearing on the issue of whether a settlement has been made in good faith. CCP § 877.6(a). A good faith determination bars any other joint tortfeasors or co‐obligors from any further claims for indemnity, comparative fault or equitable contribution. CCP § 877.6(c). The settlement must be within the reas...

Excerpt: ...inued the matter, allowing the Plaintiff additional time to explain to the Court whether he could file an amended complaint that would state a cause of action. Plaintiff filed an amended compliant on September 23, 2019 without leave of Court. This filing was unauthorized, and is therefore stricken. This tentative decision addresses the original complaint. As discussed herein, the demurer will be granted with leave to amend. Some detail has been a...

Excerpt: .... In December of 2016 parties by the name of Soni obtained a loan from Benchmark by fraudulently representing themselves with the identity of a party named Gill. The Plaintiffs did not receive the whole purchase price, the Soni's made off with over $400,000, and the property was conveyed to Gill. Plaintiffs have sued the various parties in an effort to be made whole. In its cross complaint filed August 15,2019, Benchmark seeks 1) reformation of t...

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: ...mitations; 3. The complaint contains no specific factual allegations risking to level of “evil motive” required to support a finding of malice, oppression, or fraud for a punitive damages claim; 4. Plaintiff's claim for emotion distress damages in first, second, seventh, and eighth causes of action is barred by workers' compensation exclusivity provisions of Labor Code §§ 3600 et seq.; 5. Plaintiff's claim for failure to engage in the inter...

Excerpt: ...re 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). CCP § 1033.5 sets forth categories of costs that are presumed allowable under section 1032 if incurred, whether or not paid, by the prevailing party. Service of Process: Service of process cost are expressly authorized by CCP § 1033.5(a)(4). Plaintiffs have provided an explanation as to the met...

Excerpt: ...h 68 (cancellation of written instrument cause of action) 5. Paragraph 69 (cancellation of written instrument cause of action) 6. Prayer for relief, Paragraph i (treble damages for violation of the Homeowner's Bill of Rights) 7. Prayer for relief, Paragraph ix (punitive damages) 8. Prayer for relief, Paragraph xi (attorney's fees and costs) The motion is brought pursuant to CCP §§ 435 and 436 on the grounds that the prayer for relief is not dra...

Excerpt: ...urts to prosecute the action.'” Jameson v. Desta (2009) 179 Cal.App.4th 672, 678; citing Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792. If the litigant is indigent and has a bona fide claim, the trial court must consider the remedies that are available to protect the litigant's right of meaningful access to the courts. Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483. A trial court is to exercise its “sound discretion” in determining th...

Excerpt: ... those defects has been filed. Under CCP § 1005(b), all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The motion was served by mail on May 14, 2019 and filed June 3, 2019. Merits of 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 or answer in intervention and set forth the grounds u...

Excerpt: ...155,960. He provides no other evidence. Typically a motion of this nature is supported by a detailed declaration if not copies of the billing sheets. This information allows the Court to review and consider if the amount of hours were reasonable and if the hours were expended related to a cause of action or claim that supports the award of attorney's fees. The evidence provided does not produce such information and therefore the Court cannot cond...

Excerpt: ...nfer efforts. At issue are approximately 30+ requests for admissions and corresponding Form Interrogatory 17.1, which requires a party who responds to a request for admission with anything other than an unqualified admission to identify facts, witnesses and documents that support the party's response. Procedural requirements. Defendant has satisfied the meet and confer requirements in bringing this motion. See CCP §§ 2030.300(b), 2033.290(b). L...

Excerpt: ... vehicle was owned by Defendant Gerald Olsen. At the time of the incident, Plaintiff was an employee of JF Shea. JF Shea had been retained by Defendant, State of California, Department of Transportation (Caltrans) to perform repairs on a state highway made necessary due to a landslide. Caltrans moves for summary judgment or, in the alternative, summary adjudication, on grounds that (1) Plaintiff's recovery is barred by the Workers' Compensation E...

Excerpt: ...nfer efforts. At issue are approximately 30+ requests for admissions and corresponding Form Interrogatory 17.1, which requires a party who responds to a request for admission with anything other than an unqualified admission to identify facts, witnesses and documents that support the party's response. Procedural requirements. Defendant has satisfied the meet and confer requirements in bringing this motion. See CCP §§ 2030.300(b), 2033.290(b). L...

Excerpt: ...hearing plus five calendar days if mailed. CCP § 1005(b). For a hearing date of May 28, 2019, the last day to have served the motion by mail was April 28, 2019. The motion was served by mail on May 2, 2019 and therefore fails to satisfy the service requirements of CCP § 1005(b). Defects in the notice are waived if the motion is opposed on the merits absent sufficient prejudice. Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. Plaintiff has obje...

Excerpt: ...cts 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” includes exhibits attached to the complaint and incorporated by reference. Barnett v. Fireman's Fund Ins. Co. (2001) 90 CA4th 500, 505. The court treats a demurrer “as admitting all...

Excerpt: ...ive order in place. Plaintiff's counsel failed to provide a formal objection to the deposition notices. No protective order was sought prior to the deposition dates and no motion to quash the subpoena was ever filed. The service of a deposition notice is effective to require a party or party affiliated individual to appear for the deposition. CCP § 2025.280. In addition a subpoena can be issued to require the appearance of a non‐party deponent...

Excerpt: ...ent an agreement between the parties. Third, the motion is actually a motion for reconsideration considering that Plaintiff previously filed a motion for a trial continuance. That motion also failed to comply with Code of Civil Procedure Section 1005(b) and was denied after Plaintiff failed to appear for the hearing. Despite the numerous procedural defects, the Court will consider the motion on the merits. A motion for a trial continuance is allo...

Excerpt: ...provides a mechanism for a party to move for reconsideration within 10 days after service of the written notice of entry of order. A party may make this application to the same judge or court that made the order “based upon new or different facts, circumstances, or law” and request the court “reconsider the matter and modify, amend, or revoke the prior order.” Id. The application must include an affidavit showing what application was made...

Excerpt: ... abuse and to the general inability to treble punitive damages. As the opposition makes clear the Plaintiff is not attempting to treble the elder abuse damages provided by the W&I Code. Plaintiff is only seeks to treble the punitive damages. A review of the relevant paragraphs in each cause of action show that Plaintiff is only seeking to treble the punitive damages. Therefore, the Court need only to address the applicability of treble punitive d...

Excerpt: ...mitted that all the allegations of Plaintiff's complaint are true. Defendant has not asserted any affirmative defenses. Here, Plaintiff alleges a breach of contract and common count causes of action to collect on a debt; specifically, account stated, open book account and money lent. The element for a breach of contract cause of action are: 1) the existence of a valid contract; 2) performance of the contract by the plaintiff or excuse for nonperf...

Excerpt: ... an amendment to any pleading or proceeding in other particulars.” CCP § 473(a)(1). CCP § 576 further provides that a court “at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” The court's discretion is usually exercised liberally to permit amendment of the pleadings “at any stage of the proceedings,...

Excerpt: ...tes the writ is based on the administrative record. No administrative record has been submitted. Third, whether this matter has been set for a peremptory or alternative writ, it fails to follow the proper procedure. If an alternative writ has been sought, Petitioner has not followed the ex parte process to seek such a writ. See CRC 3.1200 et seq. If the peremptory writ has been sought, which appears to be the case, Petitioner has failed to follow...

Excerpt: ...hat they would “arrange” the depositions in question. Regardless, of misrepresentations by Defendant, the CMI employees are not employees of Defendant. Any order issued by the Court ordering Defendant to comply would be a nullity. Especially for Ms. Gaylord who no longer works for CMI. The proper procedure would have been to obtain the addresses of these individuals and to issue subpoenas to them; a course of action that Plaintiff considered ...

Excerpt: ...t) of CCP § 437c as the basis for this motion. Subdivision (t) provides that a party may move for summary adjudication of a legal issue that does not completely dispose of a cause of action when certain steps are followed. Subdivision (t) states in pertinent part as follows: (1)(A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the followi...

Excerpt: ...ety. Under CCP § 916(a), the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. A motion to be relieved as counsel for Shree Shiva, LLC is neither embraced nor affected by ...

Excerpt: ...o provide a sufficient factual basis for punitive damages. She also provides a general allegation that Defendant Sparks as the Senior Vice President was certainly a managing agent and argues that no further specificity is needed. The title of Senior Vice President alone is insufficient to allege that Sparks was an officer or other responsible individual for corporate policy that would allow punitive damages to be alleged against a corporation. Th...

Excerpt: ...ty on March 29, 2017. During this inspection Rosas noticed there were no record to show the proof of payments and that Petitioner was not able to provide any payroll records. Rosas also did not believe the Petitioner's technicians were independent contractors. That day Rosas issued Citation No. SO. 103170 to Petitioner for his failure to cover his employees with worker's compensation insurance in violation of Labor Code Section 3700. The citation...

Excerpt: ... today's hearing. No response has been filed. The Court also notes that Defendants have failed to appear at recent hearings and/or trial. The Court finds that Defendants have abandoned their defense and that lesser sanctions would not compel Defendants to appear in this action. Defendants' answer is STRICKEN. The clerk is instructed directed to prepare a separate Order Striking Defendants' answer. The review hearing set for 9:00 a.m. is confirmed...

Excerpt: ...ken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” The relief is mandatory when the application is accompanied by an affidavit showing that the mistake was committed by counsel. Here, counsel Lee Mendelson, has failed to provide evidence that his mistake was the cause of the dismissal. The Court issued an Order to Show Cause re: Dismissal which was set to be heard on September 10, 2018. At that hear...

Excerpt: ...filing and improper service of the Opposition is excusable neglect and considers both the Opposition and Reply brief in ruling on this motion. Factual background. The parties do not dispute the following facts: On December 4, 2018, after the instant lawsuit was filed but before defendants were served with the complaint, defendant Casey Bishop and Santiago Schenone, an engineer retained by Mr. Bishop's homeowner's insurance carrier, attempted to g...

Excerpt: ...rom waiver on a determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial 2 compliance with Sections 2033.210, 2033.220, and 2033.230; and (2) The party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. CCP § 2033.280(a). In order to obtain relief from waiver, a separate noticed motion is required. Such relief ca...

Excerpt: ...on for a hearing on the issue of whether a settlement has been made in good faith. A good faith determination bars any other joint tortfeasors or coobligors from any further claims for indemnity, comparative fault or equitable contribution. CCP § 877.6(c). The settlement must be within the reasonable range of the settling tortfeasors' share of liability taking into consideration the facts and circumstances of the case. Tech‐Bilt, Inc. v. Woodw...

Excerpt: ... due to the second cause of action failing to state facts that constitute harassment as a matter of law and being untimely filed. As an initial matter, the Opposition was filed and served several days late. The Reply was filed and served one day late. The court, in its discretion, may refuse to consider late‐filed papers in ruling on the motion. In such event, the court's minutes or order must so indicate. CRC 3.1300(d). In ruling on this D...

Excerpt: ...he complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.App.4th 435, 438. No matter how unlikely, a plaintiff's allegations must be accepted as true for the purpose of ruling on...

Excerpt: ...) where the proposed intervenor has a direct interest, (2) intervention will not enlarge the issues in the litigation, and (3) the reasons for intervention outweigh any opposition by the existing parties. Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499. Intervention by an insurer is permitted in third party action against its insured where the insurer remains liable for any default judgment against the insured, and it has no means oth...

Excerpt: ...9. CRC Rule 3.1700 provides in pertinent part as follows: A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under CCP § 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. CRC Rule 3.1700(a)(1). Plaintiffs filed their Request...

Excerpt: ...ation. It provides various expert reports that show the seriousness of the brain damage, her life expectancy and the future costs for caring for the minor. The minor (age 2) is fully disabled and will require 24/7 care for life. Her life expectancy is only 26.7 years. There is an itemization of estimated rehabilitation costs which clearly demonstrate that the costs to care for the minor will be significant and will greatly exceed the amount of th...

Excerpt: ...within one document, with differing facts and legal authority, unnecessarily complicates the court's review of the pleadings and their distinct issues, and also circumvents the separate filing fee requirements. While CRC 3.1112(c) provides that a motion, notice of hearing and points and authorities may be combined in a single document, it references papers relating to the same motion or demurrer, and does not authorize combining papers related to...

Excerpt: ...fter the instant lawsuit was filed but before defendants were served with the complaint, defendant Casey Bishop and Santiago Schenone, an engineer retained by Mr. Bishop's homeowner's insurance carrier, attempted to gain access to plaintiffs' property to inspect the flood damage claimed by plaintiffs. Plaintiffs' counsel had previously sent defendants a letter demanding $345,000 to settle said claim. That visit was unannounced. Plaintiffs contact...

Excerpt: ... for a hearing on the issue of whether a settlement has been made in good faith. A good faith determination bars any other joint tortfeasors or coobligors from any further claims for indemnity, comparative fault or equitable contribution. CCP § 877.6(c). The settlement must be within the reasonable range of the settling tortfeasors' share of liability taking into consideration the facts and circumstances of the case. Tech‐Bilt, Inc. v. Woodwar...

Excerpt: ...rt can fully evaluate the proposed compromise. 1. No Attachment 14a declaration. Petitioner seeks court approval of $1,150.00 in attorney's fees. No Attachment 14a, a declaration from the attorney explaining the basis for the request, including a discussion of applicable facts listed in CRC Rule 7.955(b), has been provided. The Court cannot assess the reasonableness of the fees sought without this information. 2. Counsel of record. The Petition i...

Excerpt: ...ice of summons. The general authority provided by Defendant is accurate that if the summons is not properly served then the Court lacks jurisdiction over the party. Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150. Any judgment entered without jurisdiction is void. Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691‐92. The present scenario is a simple factual dispute with great ramifications. Both parties provide plausible factual scenari...

Excerpt: ...nd McDonald. Evidence submitted with the parties' pleadings provides that the vehicle which allegedly collided with the Plaintiffs' vehicle was driven by Mickiewicz, owned by McDonald and insured by Armenta. Defendants, Krystopher Maskiewicz and Carla McDonald (hereinafter collectively “Defendants”) move to quash the Doe amendment adding them to this litigation on the grounds that their identities were known to Plaintiffs at the time the comp...

Excerpt: ... Craig Wilson, then Costco's answer should be stricken and default entered; or (b) If Mr. Wilson is among the PMQs who appear for deposition on behalf of Costco, Costco's answer should be stricken and default entered if the referee determines it is more likely than not that Costco had responsive documents to the Demand for Production, Set One, and/or Costco PMQ deposition request, but did not produce them. (2) If defendant's answer is not stricke...

Excerpt: ...y.” As a preliminary matter, plaintiffs' request for judicial notice of documents previously filed in this action is granted. Improper combining of motions. Counsel has filed this motion seeking a preliminary and permanent injunction and also seeking trial preference. The request for trial preference is content for a separate motion. The improper combining of multiple motions within one document, with differing facts and legal authority, unnece...

Excerpt: ... motion for judgment on the pleadings.” Coyne v. Krempels (1950) 36 Cal.2d 257, 262. A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for a demurrer has expired. Except as provided by statute, the rules governing demurrers apply. Cloud v. Northrup Crumman Corp. (1998) 67 Cal.App.4th 995, 999. A motion for judgment on the pleadings is proper when “the complaint does not state facts s...

Excerpt: ...ted that all the allegations of Plaintiff's complaint are true. Defendant has not asserted any affirmative defenses. Here, Plaintiff breach of contract and common count causes of action to collect on a debt; specifically, account stated, open book account and money lent. The element for a breach of contract cause of action are: 1) the existence of a valid contract; 2) performance of the contract by the plaintiff or excuse for nonperformance; 3) b...

Excerpt: ...l address each major category of objections and address whether a further response is required as to each discovery request at issue in the motion. Summary of Facts: This action arises out of an employment relationship between the Plaintiff/employee, Broc Foulke, and Defendant/employer, Nor Cal Oil, Inc.. Defendant Webb is the CEO, CFO, President, Secretary, and agent for service of process and a director of Nor Cal Oil, Inc. The discovery at iss...

Excerpt: ...tion. Plaintiff will be filing a Second Amended Complaint. Therefore the Court finds that the demurrer and motion to strike is moot except for the demurrer to the fourth cause of action. The analysis will therefore only address the fourth cause of action. Fourth Cause of Action – Dangerous and Defective Condition of Public Property: Government Code section 835 sets out the exclusive conditions under which a public entity may be held liable for ...

Excerpt: ...ary judgment if all the papers submitted show that there is no triable issue as to any material fact and is therefore entitled to judgment as a matter of law. Id.; see CCP § 437c(c). A defendant moving for summary judgment has met its burden of showing that a cause of action has no merit if it has shown one or more elements cannot be established. CCP § 437c(p)(2). A cause of action “cannot be established” if the undisputed facts presented b...

Excerpt: ...oduction 1‐3, 5‐6, and 9. The motion also seeks sanctions for having to file the motion to compel further responses. Verifications: Discovery responses are required to be verified and an unverified response is considered to be no response at all. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. Plaintiffs' motion states that the responses were unverified at the time of production but fails to state that verifications were later prod...

Excerpt: ...sts and attorney's fees. The offer expressly stated that the settlement included any liens but did not state how payment would be made or how the check would be made payable. Defendants have provided a check in the amount of $100,000 made payable to Plaintiff, Plaintiff's counsel, Medicare and Tricare. Medicare and Tricare are lienholders related to medical services provided to Plaintiff. Plaintiff argues that payment must be made to Plaintiff an...

Excerpt: ...equested. Plaintiff has satisfied the procedural requirements of CRC Rule 3.1324. Plaintiff cites to CCP §§ 473 and 576 as the grounds for bringing this motion. The points and authorities further discuss CCP §§ 425.13 and 426.50 but neither statute is included in the Notice of Motion, nor is either applicable here. The parties' reliance on CCP § 425.13 and the cases interpreting it is misplaced. CCP § 425.13 pertains to leave to amend to ad...

Excerpt: ...bmitted a “Request to Ammend (sic) Complaint.” The Request is not a proper motion nor a proper amendment to the Complaint. Further, Plaintiff's right to amend without leave of Court expired at the time his opposition was due to the motion to strike. CCP § 472(a). Therefore the Court denies the request to amend. A motion to strike can be used to attack the entire pleading, or any part thereof, including single words or phrases. Stearns Rancho...

Excerpt: ... multiple omissions/defects that require the filing of an Amended Petition. First, Item 10 on the Petition (attesting that Petitioner has made a careful and diligent inquiry and investigation and fully understands the finality of the compromise) has not been marked. Counsel's declaration provides that an inquiry was made into whether a dangerous condition existed but the Petition lacks information enabling the Court to determine that a full inves...

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

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

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

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

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

Excerpt: ...ust grant that party leave to file the cross‐complaint so long as the party acted in good faith and has given proper notice to the adverse party. CCP § 426.50. The Court finds that the proposed cross‐complaint is compulsory as it “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” CCP § 426.10(c). Specifically, the cross‐complai...

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

Excerpt: ...ction is based upon a contract, fails to make ascertainable whether the contract is written, oral, or implied by conduct (CCP § 430.10(g)). A demurrer is treated “as admitting all material facts properly [pled], but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.App.4th 435, 438. For purposes of ruling on a demurrer. the plaintiff's allegations must be accepted...