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

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

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

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

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

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

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

Excerpt: ...e facts sufficient to constitute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court “treat[s] the demurrer as admitting all material facts properly pleaded,...

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

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

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

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

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

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

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

Excerpt: ...able are restricted to only those costs that are both reasonable in amount and reasonably necessary to the conduct of the litigation. CCP § 1033.5(c)(2)(3). The Court has the power to disallow costs, even those allowable as a matter of right, if they are not reasonably necessary or in a reasonable amount. Perkos Enterprise, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245. Here, Plaintiff seeks to tax the $1,420 in costs listed under “Ot...

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

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

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

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

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

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

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

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

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

Excerpt: ...itute a valid cause of action.” CCP § 430.10(e). A demurrer can also be brought on the grounds that the pleading is “uncertain.” CCP § 430.10(f). A demurrer can be used to challenge defects that appear on the face of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deduc...

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

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

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

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

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

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

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

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

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

Excerpt: ...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: ...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: .... 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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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, ...

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