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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...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: ...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, ...