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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: .... 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: ...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: ... 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: ...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: ... 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: ... 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: ...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: ...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...