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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...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: ... 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: ...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: ... § 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: ...provided the required “Claim of Exemption” mandatory Judicial Council Form but it fails to identify any code section that would apply. Further, the facts alleged simply state that the proof of service was incomplete and that it was never actually filed or stamped by the clerk's office. It is unclear to which proof of service he is referring. The original complaint was personally served on December 10, 2010 according the proof of service filed...

Excerpt: ...d as counsel is brought instead of filing a consent under CCP § 284(1). Mr. Cogan has established in general terms that there has been a breakdown in the relationship. The 3 information provided in the declaration is sufficient to establish a need to be relieved provided all procedural requirements have been met. CRC 3.1362(d) specifically requires service of the motion, supporting declaration and proposed order. The proof of service on file ref...

Excerpt: ...st 13, 2018 and therefore the opposition was due on July 31, 2018. The opposition was filed on August 7, 2018. The proof of service shows that the opposition was not served until August 7, 2018 and was therefore untimely. Even if the Court were to consider the closure from July 30‐August 3 due to the Carr Fire there is no excuse why the opposition was not timely served on the opposing parties. The Court will exercise its discretion and consider...

Excerpt: ...thority to represent Reed or file a motion on his behalf. On this basis alone, the motion is denied. Counsel should be prepared to address this issue at the hearing of this matter. Out of an abundance of caution, and in order to promote economy and convenience to the parties, the Court issues the following “tentative” tentative ruling indicating how it would rule if Peter Dubrawski properly appeared. Plaintiff, Robert Reed and non‐parties r...

Excerpt: ...“general demurrers.” A general demurrer lies when the allegations of the complaint show that the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995. Merits of Motion: Plaintiff's form complaint for personal injury alleges two causes of action arising from the same incident. The first cause of action is for “Motor Vehicle” which is a type of negligence cause of action....

Excerpt: ...at can be withheld is 25% of disposable income). 15 USC § 1673(a). Section 1672(b) of Title 15 of the United States Code defines “disposable earnings” as “that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.” CCP section 706.011 provides an almost identical definition. Under California law, even more than 75% can be exempt, if the income is sufficient...

Excerpt: ...“general demurrers.” A general demurrer lies when the allegations of the complaint show that the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995. Merits of Motion: Plaintiff's form complaint for personal injury alleges two causes of action arising from the same incident. The first cause of action is for “Motor Vehicle” which is a type of negligence cause of action....

Excerpt: ... five calendar days if the notice is served by mail. CCP § 1005(b). The motion was served by mail on July 12, 2018. The last day to serve by mail was actually July 8, 2018. The motion is therefore untimely. Plaintiff has filed an opposition which addresses this procedural defect and which addresses the underlying merits of the demurrer. Opposing a motion on the merits waives any irregularities in the notice. Carlton v. Quint (2000) 77 Cal.App.4t...

Excerpt: ...thority to represent Reed or file a motion on his behalf. On this basis alone, the motion is denied. Counsel should be prepared to address this issue at the hearing of this matter. Out of an abundance of caution, and in order to promote economy and convenience to the parties, the Court issues the following “tentative” tentative ruling indicating how it would rule if Peter Dubrawski properly appeared. Plaintiff, Robert Reed and non‐parties r...

Excerpt: ...“general demurrers.” A general demurrer lies when the allegations of the complaint show that the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995. Merits of Motion: Plaintiff's form complaint for personal injury alleges two causes of action arising from the same incident. The first cause of action is for “Motor Vehicle” which is a type of negligence cause of action....

Excerpt: ...that can be withheld is 25% of disposable income). 15 USC § 1673(a). Section 1672(b) of Title 15 of the United States Code defines “disposable earnings” as “that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.” CCP section 706.011 provides an almost identical definition. Under California law, even more than 75% can be exempt, if the income is sufficie...

Excerpt: ...thority to represent Reed or file a motion on his behalf. On this basis alone, the motion is denied. Counsel should be prepared to address this issue at the hearing of this matter. Out of an abundance of caution, and in order to promote economy and convenience to the parties, the Court issues the following “tentative” tentative ruling indicating how it would rule if Peter Dubrawski properly appeared. Plaintiff, Robert Reed and non‐parties r...

Excerpt: ...thority to represent Reed or file a motion on his behalf. On this basis alone, the motion is denied. Counsel should be prepared to address this issue at the hearing of this matter. Out of an abundance of caution, and in order to promote economy and convenience to the parties, the Court issues the following “tentative” tentative ruling indicating how it would rule if Peter Dubrawski properly appeared. Plaintiff, Robert Reed and non‐parties r...

Excerpt: ...“general demurrers.” A general demurrer lies when the allegations of the complaint show that the action is barred by the statute of limitations. Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995. Merits of Motion: Plaintiff's form complaint for personal injury alleges two causes of action arising from the same incident. The first cause of action is for “Motor Vehicle” which is a type of negligence cause of action....

Excerpt: ...that can be withheld is 25% of disposable income). 15 USC § 1673(a). Section 1672(b) of Title 15 of the United States Code defines “disposable earnings” as “that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.” CCP section 706.011 provides an almost identical definition. Under California law, even more than 75% can be exempt, if the income is sufficie...

Excerpt: ...ssues an Order to Show Cause re Dismissal pursuant to Gov't Code § 68608(b). The hearing on the OSC re Dismissal is set for Monday, October 1, 2018 at 8:30 a.m. in Department 3. The clerk is instructed to prepare a separate Order to Show Cause re Dismissal. Today's review hearing is continued to Monday, October 1, 2018 at 9:00 a.m. in Department 3. ...

Excerpt: ...ritance fails to state sufficient facts and is uncertain. Specifically, Wells argue both causes of action are based on an oral contract and both fail because they do not provide the necessary terms and are barred by both the statute of frauds and by the applicable statute of limitations. Wells also claim the bad faith denial cause of action is also only recognized in the insurance context and is therefore an inappropriate cause of action. Standar...

Excerpt: ...pear that the parties' failure to appear was inadvertent. As such no sanctions will be imposed. The 5 parties are reminded that the Court will continue to schedule review hearings and order the filing of status conference statements until the Federal Action is remanded or dismissed. No appearance is necessary on today's calendar. ...

Excerpt: ...cy rights, and for otherwise violating a June 14, 2018 agreement between plaintiffs' counsel and defense counsel. Counsels' agreement limited the scope of any subpoenas in the case to the parts of the body that plaintiffs have alleged to be injured. The subject subpoenas were issued to Anthem Blue Cross on or about May 25, 2018, as part of a bundle of 33 separate subpoenas issued to plaintiffs' medical and insurance providers. The subpoenas appar...

Excerpt: ...018 and by Plaintiff on June 28, 2018. Mr. Smith was therefore the attorney of record in this case and remained the attorney for Plaintiff at the time the OSC issued. No response has been provided by either Plaintiff or Mr. Smith. Sanctions are therefore imposed in the amount of $250 against Plaintiff and Mr. Smith. The clerk is directed to prepare a separate Order of Sanctions. ...

Excerpt: ...Amended Complaint. Standard of Review: A motion for judgment on the pleadings may be brought when the complaint does not state facts sufficient to constitute a cause of action. CCP § 438(c)(1)(B)(ii). A motion of this nature is similar to a demurrer and tests the sufficiency of a pleading. Elliott v. City of Pacific Grove (1975) 54 Cal.App.3d 53. The rules governing demurrers therefore apply. Cloud v. Northrop Grumman Corp (1998) 676 Cal.App.4th...

Excerpt: ...ician, but the physician's assistant. There is no statement by the physician that the contents of the letter are true and correct or that the physician has personal knowledge of the facts. Additionally, even if were to accept the attached letter as a statement by the physician, it still fails to provide the physicians license or certificate number and fails to provide a statement that the physician is licensed for this jurisdiction. Otherwise, th...

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. Woodward...

Excerpt: ...477. The demurrer to the original complaint is therefore OVERRULED as moot. ...

Excerpt: ...Defendant alleges it fails to state sufficient facts to constitute a claim under the Consumer Legal Remedies Act. Standards of Demurrer: 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 be used to challenge defects that appear on the fact of the complaint or from matters that may be subject to judicial notice. Blank v. Kirwan (1985) 39 Cal...

Excerpt: ...t. Decker opposes the motion but Plaintiff does not. 4 Objections: Decker's Objection No. 1: SUSTAINED Ginno's Objection No.1: SUSTAINED Ginno's Objection No. 2: SUSTAINED Factual Background: In 2015 Plaintiff was employed by the National Veterinary Associates (“NVA”) as the managing veterinarian at the Westside Pet Hospital (the “Hospital”). NVA leased the Hospital from the Ginno Family Trust. On January 29, 2015, Plaintiff was injured w...

Excerpt: ...resentation, and declaratory relief. Part of their complaint also makes reference to a lawsuit filed by two of the Defendants (Amrit and Ruby Gill) on April 19, 2017 in Orange County (Orange County Superior Court Action No. 30‐2017‐00915449‐CU‐FR‐CJC). The Orange County complaint alleges similar causes of action pertaining to the same transaction, but also includes different causes of action and different parties. It appears both compla...

Excerpt: ...action on the last page of their Memorandum of Points and Authorities appears to be in error as a demurrer on that cause of action was neither noticed nor argued. Standards of Demurrer: 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 be used to challenge defects that appear on the fact of the complaint or from matters that may be subject ...

Excerpt: .... Lee was named in the original complaint. Despite the two year delay, Lee still has not been served nor has he been dismissed. No response to the Order to Show Cause has been filed. The Court imposes sanctions in the amount of $250 against Plaintiff and her counsel for failure to comply with CRC 3.110(b). The clerk is instructed to prepare a separate Order for Sanctions. The Court will issue an Order to Show Cause re Dismissal of Plaintiff's com...

Excerpt: ...e cross‐ complaint was dismissed on April 13, 2018. On May 15, 2018, Plaintiff filed a motion to compel discovery responses which was originally set to be heard on June 11, 2018. On May 25, 2018, the present special motion to strike was filed setting a hearing date of July 2, 2018. The special motion to strike is brought pursuant to California's anti‐SLAPP statute, codified as Code of Civil Procedure section 425.16. The discovery motion heari...

Excerpt: ...er spouse before or during the marriage. Family Code § 910. Community property is subject to the enforcement of a money judgment. CCP § 695.020. Judgment Creditor holds a judgment against the Judgment Debtor only but now seeks an order permitting the garnishment of the spouse's wages. CCP § 706.109 expressly authorizes a wage garnishment to proceed against a spouse after a noticed motion is granted. No opposition has been filed despite service...

Excerpt: ...ed to redactions and provided definitions. The Court finds that the meet and confer efforts were sufficient and made in good faith. Objections: Plaintiff has provided various objections to statements made by the Defendant. The statements do not related to the substance of this motion; specifically, whether the discovery responses are adequate. The statements are irrelevant and were not considered by the Court related to the merits of this motion....

Excerpt: ...d as counsel is brought instead of filing a consent under CCP § 284(1). Mr. Cogan has established in general terms that there has been a breakdown in the relationship. The information provided in the declaration is sufficient to establish a need to be relieved provided all procedural requirements have been met. CRC 3.1362(d) specifically requires service of the motion, supporting declaration and proposed order. The proof of service on file refle...

Excerpt: ...d. Neither party informed the Court of the federal dismissal. Plaintiff did not dismiss this action. For these reasons, the Court required an appearance at the May 14, 2018 review hearing. In the future, counsel are advised to keep the Court apprised of the status of the federal action to avoid wasting judicial resources in issuing an OSC when the 3 federal action has been dismissed. No sanctions will be imposed. The clerk is instructed to admini...

Excerpt: ... faith pursuant to CCP § 877.6. The motions are nearly identical and will be addressed together in one ruling. Richardson seeks to settle this matter for their policy limit of $1,000,000. Brown seeks to settle this matter for their policy limit of $100,000. 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. A good faith determination bars any other j...

Excerpt: ...nd 2031.300(b). The Court will order Plaintiff to provide responses to the above discovery without objection. Defendant has also requested sanctions in the amount of 8.5 hours at the rate of $185 for Plaintiff's failure to timely respond. Given that this motion is unopposed and availability of CourtCall, the requested hours are reduced from 8.5 to 3. Sanctions will be awarded in the amount of $555. The motion is GRANTED. Plaintiff shall have 30 d...

Excerpt: ...le income is automatically exempt (i.e. the maximum that can be withheld is 25% of disposable income). 15 USC § 1673(a). Section 1672(b) of Title 15 of the United States Code defines “disposable earnings” as “that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.” CCP section 706.011 provides an almost identical definition. Under California law, even mo...