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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ... in the related Federal Bankruptcy cases. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.” Unruh‐Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (internal citation...

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

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

Excerpt: ...H Kelly requests that the Court take Judicial Notice of 16 items, including pleadings filed by JH Kelly and AECOM in this Court and in Federal Court. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.�...

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

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

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

Excerpt: ... However, even if the motion were to have been filed in a timely fashion, it is unlikely that the Court would grant it on the merits. There is no absolute right to counsel in civil cases. Payne v. Superior Court (Los Angeles) (1976) 17 Cal. 3d 908. A trial court is to exercise its “sound discretion” in determining the appropriate method by which to ensure meaningful access to the court. Jameson v. Desta (2009) 179 Cal. App. 4th 672, 678. Want...

Excerpt: ...e the motion has not been withdrawn, the Court will rule on the merits. Legal authority. Which county constitutes the proper venue in a particular case is determined according to CCP § 392 et seq. In applying these statutes, courts generally look to the main relief sought, as determined by the complaint. See Massae v. Superior Court (1981) 118 Cal.App.3d 527, 530. A defendant is entitled to have an action tried against him in his county of resid...

Excerpt: ...ibits, including Exhibit 8 which appears to be a combined Notice of Motion and Motion to Continue Trial and Reopen Discovery. Exhibit 8 contains three separate pleadings: a Notice of Motion, Memorandum of Points and Authorities; and Declaration of Michael Cogan. None of these pleadings are signed. At the time of the ex parte hearing of July 25, 2019, the parties stipulated to continue trial and the Court granted an order shortening time relative ...

Excerpt: ...smissal was entered due to the mistake, inadvertence or error of Plaintiff's counsel, under CCP § 473(b). The matter was continued to August 26 to provide Plaintiff's counsel with an opportunity to present additional information as to the reason two weeks' notice was insufficient time to secure witnesses, and the reason why a motion was not filed in advance of the trial date. Plaintiff's counsel provided a declaration stating that it is the cust...

Excerpt: ... of the pleadings and their distinct issues, and also circumvents the separate filing fee requirements. While CRC 3.1112(c) provides that a motion, notice of hearing and points and authorities may be combined in a single document, it references papers relating to the same motion or demurrer, and does not authorize combining papers related to separate motions. As timely notice of all of Plaintiff's requests have been provided, albeit in the improp...

Excerpt: ..., second, third, fifth, sixth, seventh, eighth, ninth, and tenth causes of action, pursuant to CCP § 430.10, on grounds that those causes of action fail to state facts sufficient to constitute a cause of action and are uncertain. Meet and Confer. CCP § 430.41 requires the demurring party to meet and confer “in person or by telephone” with the party who filed the pleading subject to demurrer before filing a demurrer. Defense counsel's declar...

Excerpt: ...) the causes of action for Premises Liability and Wrongful Death were improperly filed without leave of court. Legal standard on demurrer. A demurrer can only be used to challenge defects that appear on the face of the complaint or matters that may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881. The “face of the complaint” inc...

Excerpt: ... dismissal was entered due to the mistake, inadvertence or error of Plaintiff's counsel, under CCP § 473(b). There are two clauses in CCP § 473(b) under which a dismissal may be vacated – one mandatory, the other permissive. The second clause of CCP § 473(b) requires mandatory relief upon an attorney's affidavit attesting to his or her mistake, inadvertence, surprise, or neglect. It must be made “no more than six months after entry of judg...

Excerpt: ... (Fifth COA), conspiracy (Sixth COA), defamation (Ninth COA), intentional infliction of emotional distress (Tenth COA), and negligent infliction of emotional distress (Eleventh COA). Defendant characterizes each cause of action as being supported by Lockwood's participation in a company investigation which would be protected activity. Anti‐SLAPP Standards: A SLAPP suit seeks to chill or punish a party for exercising their constitution rights to...

Excerpt: ...om papers supporting or opposing the motion, and that specific formatting requirements be met, none of which have been. Therefore, the Court does not consider Plaintiff's objections. 5 Defendant has also filed objections to Plaintiff's evidence, specifically statements made within Plaintiff's affidavit. The Court declines to rule on the objections, finding such rulings are not material to the disposition of the motion. See CCP § 437c(q). [The Co...

Excerpt: ...st 7, 2019 and should is DENIED. The first declaration of Mr. Oberst misidentified the Plaintiff but that is clearly a typo and there appears to be a sufficient basis to allege the facts contained therein on information and belief. The second request to strike was filed on August 15, 2019 and challenges Mr. Oberst's declaration filed on August 12, 2019. That request is GRANTED. Mr. Oberst's declaration filed in support of Defendants' reply seeks ...

Excerpt: ...force the settlement until performance in full of the terms of the settlement. The parties entered into a settlement in December 2018. No settlement agreement has been provided but rather the terms of the settlement appear to be wholly memorialized in a stipulation filed with the Court. The stipulation provided the sums owed under two accounts and their respective interest rates. It also provides a payment schedule and that a default would entitl...

Excerpt: ... fees. Defendant has filed a motion to tax costs, which directly addresses the issue of costs. The motion to tax costs is scheduled for hearing on September 9, 2019. This ruling will only address the issue of attorney fees. The issue of costs will be addressed at the hearing on defendant's motion to tax costs. In the context of the motion, several objections and requests for judicial notice have been made by the parties. The Court issues the foll...

Excerpt: ...The format of a separate statement of facts is controlled by CRC 3.1350(d)(e) which requires the separate statement to be in a two column format. Defendant's separate statement of facts did not follow the mandatory form imposed by the California Rules of Court. Further, the separate statement must separately identify each cause of action that is the subject of the motion. CRC 3.1350(d)(1)(A). The defects in the separate statement could have justi...

Excerpt: ...of public policy. Plaintiff's Objections to Defendant's Evidence: No. 1: Overruled. No original signature has been provided on the declaration. However, the Court presumes that counsel maintains the original signed declaration which can be easily remedied. No. 2: Sustained. No. 3: Overruled. The evidence is not considered for the truth of the legal conclusion asserted, as the reasons for termination are ultimately to be resolved by the trier of f...

Excerpt: ...r Two, served on defendant on April 9, 2019. The motion is brought pursuant to Code of Civil Procedure section 2031.010 et seq., with a sanction request in the sum of $4,172.50 also being sought pursuant to Code of Civil Procedure sections 2023.010 and 2031.300. The Court finds that an adequate meet and confer process has occurred between the parties. Under Code of Civil Procedure section 2031.300, a party making an inspection demand may move for...

Excerpt: ...e fail to state facts sufficient to constitute a valid cause of action. The demurrer has been filed more than 30 days after service of the Summons and FAC. However, defendants' default was never taken by plaintiff, and the demurrer constitutes a responsive pleading in the case. The Court in its discretion will consider the demurrer on its merits. See Jackson v. Doe (2011) 192 Cal.App.4th 742, 750. The action was filed by plaintiff Timothy Hamaker...

Excerpt: ...er District back in 2018, and to otherwise enjoin Westlands Water District from taking any action that would violate the California Wild and Scenic Rivers Act, Public Resources Code section 5093.542. Preliminary Statement on Use of Evidence: Both parties have submitted requests for judicial notice of various federal and state documents in support of their respective positions. The Court takes judicial notice of these documents pursuant to Evidenc...

Excerpt: ...f and Defendant had a financial transaction, Plaintiff kept an account of the debits and credits involved in the transaction(s); and Defendant owes Plaintiff $3,149.76, all of which comprise entitlement to judgment on an open book account claim. Additionally, Plaintiff's evidence establishes that Defendant owed Plaintiff money from previous financial transactions; Plaintiff and Defendant, by words or conduct, agreed that the amount stated in the ...

Excerpt: .... Pursuant to Probate Code § 3604, the Court finds that 1) Katrina Harp has a disability that substantially impairs her ability to provide for her own care or custody and constitutes a substantial handicap; 2) That Katrina Harp is likely to have special needs that will not be met without the trust; and 3) That money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet the special needs of Katrina Harp. A s...

Excerpt: ...rmined according to CCP § 392 et seq. In applying these statutes, courts generally look to the main relief sought, as determined by the complaint. See Massae v. Superior Court (1981) 118 Cal.App.3d 527, 530. A defendant is entitled to have an action tried against him in his county of residence unless the proceeding comes under an exception. See CCP § 395. “Where a defendant has made a proper showing of nonresidence, the burden is on the plain...

Excerpt: ... 392 et seq. In applying these statutes, courts generally look to the main relief sought, as determined by the complaint. See Massae v. Superior Court (1981) 118 Cal.App.3d 527, 530. A defendant is entitled to have an action tried against him in his county of residence unless the proceeding comes under an exception. See CCP § 395. “Where a defendant has made a proper showing of nonresidence, the burden is on the plaintiff to show that the case...

Excerpt: ... and must include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests. CCP § 387(c). Berkshire has satisfied the requirements of CCP § 387(c). A nonparty must be allowed to intervene if (A) a provision of law confers an unconditional right to intervene or (B) the nonparty “claims an interest relating to the property or transaction that is the subject of the action ...

Excerpt: ...a few concerns which can be addressed at the time of hearing. First, the Petition establishes that the at fault driver, Joaquim Azavedo, was uninsured but it fails to address whether he had any assets to satisfy a judgment. Second, the policy limit of $60,000 was apportioned between three individuals according to their injuries but no information was provided related to the injuries of the Petitioner or Ian Woolery. Finally, the Petition provides...

Excerpt: ...n: CCP § 473(a)(1) permits any pleading to be amended in further of justice 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. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and w...

Excerpt: ...quest in the sum of $3,415.00 also being sought pursuant to Code of Civil Procedure sections 2023.010 and 2031.310. The Court finds that an adequate meet and confer process has occurred between the parties. Although both the opposition and reply briefs were filed a day late, the Court considers the motion ripe for hearing on the originally scheduled hearing date of July 8, 2019. Under Code of Civil Procedure section 2031.310, a party requesting d...

Excerpt: ...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. Id. The application for relief must be made within six months of the contested order, e.g., an order of dismissal. Id. Here, the motion was filed within the required six months. The declaration indicates that counsel was unaware that the May 20, 2019 proceeding ...

Excerpt: ...ifying the effect of the amendment, why it is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons why the request was not made earlier. Plaintiffs have satisfied the requirements of Rule 3.1324. CCP § 473 provides that the court may “in furtherance of justice…allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars.” CCP § 473(a)(1). The ...

Excerpt: ...eclaration of Michael Cogan is sustained. Esquire's objection to paragraph 5 and Exhibit 4 are sustained on the grounds of lacks foundation and hearsay. Esquire's objections to Exhibit 5 are sustained on the grounds of lacks foundation and hearsay. Esquire's objection to paragraph 12 is sustained on the grounds of lacks foundation. All other objections are overruled. Meet and confer. The Court finds that plaintiff has satisfied her meet and confe...

Excerpt: ... 1: Sustained, except as to Exhibit B Objection 2: Sustained, except as to Exhibits A‐D Objection 3: Sustained, except as to Exhibits B‐E Objection 4: Sustained. Objection 5: Sustained. Timeliness. While defendant is correct that the opposition was untimely filed and served, by addressing the opposition on its merits, defendant has waived any irregularities in the notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The opposition sha...

Excerpt: ...that defendant has satisfied the meet and confer requirements for a demurrer. Request for judicial notice. Defendants' request for judicial notice is granted. Demurrer standard. The purpose of a demurrer is to test the legal sufficiency of a pleading. CCP §§ 422.10, 589. A demurrer is properly sustained where the complaint fails to state facts sufficient to constitute a cause of action (CCP § 430.10(e)) or is uncertain (CCP § 430.10(f)). A de...

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

Excerpt: ... those defects has been filed. Under CCP § 1005(b), all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The motion was served by mail on May 14, 2019 and filed June 3, 2019. Merits of motion. A petition for leave to intervene may be made by noticed motion or ex parte application and must include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds u...

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

Excerpt: ...rits, plaintiff has waived any irregularities in the notice. See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. The motion should be heard on its merits. Request for Judicial Notice. The Court grants both parties' requests for judicial notice. Factual background. This motion is based on a provision in the Credit Agreement, a document which forms part of the contract sued upon by plaintiff in this action. The Credit Agreement has a clause in par...

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

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

Excerpt: ...cts that appear on the face of the complaint or matters that may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence can be considered. Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881. The “face of the complaint” includes exhibits attached to the complaint and incorporated by reference. Barnett v. Fireman's Fund Ins. Co. (2001) 90 CA4th 500, 505. The court treats a demurrer “as admitting all...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...ion Code § 44808 and design immunity pursuant to Gov. Code § 830.6. Defendants' Objections to Evidence: Objection No. 1: OVERRULED Objection No. 2: SUSTAINED Objection No. 3: OVERRULED Objection No. 4: OVERRULED Factual Background: In May of 2016, Plaintiff was a second grade student at Boulder Creek Elementary School, part of the Enterprise Elementary School District. On May 16, 2016, at 1:56 p.m., the school bell rang and Plaintiff was dismis...

Excerpt: ...dge. When and if the Defendant is served, the moving party may have more certain information upon which to base this motion, and/or the parties may wish to stipulate to a different venue. Otherwise, this motion is denied at this time, without prejudice. The motion is DENIED without prejudice. A proposed order was lodged with the Court which will be modified to reflect the denial. ...

Excerpt: ...tion. This is a medical malpractice action relating to a hysterectomy procedure. Among other things, plaintiff is claiming emotional distress relating to the incident. Defendant submits that plaintiff has placed her therapy sessions with Ms. Zinn at issue, by claiming them as damages relating to alleged emotional distress. Ms. Zinn has also been mentioned repeatedly in plaintiff's responses to Form Interrogatories, Special Interrogatories, and de...

Excerpt: ...had granted him an extension to file his appeal based upon an error of the Labor Commissioner. The Court continued the hearing to today's date for Plaintiff to submit evidence in support of his contentions and to establish compliance with the Notice of Appeal requirements under Labor Code section 98.2. Plaintiff has not submitted any evidence or formal filing in response to the Order to Show Cause, therefore the Court intends to DISMISS this matt...

Excerpt: ...Plaintiff moves for an order amending the judgment nunc pro tunc, to list the proper party names. Trial courts retain the inherent power to amend and control their orders so as to make them conform to law and justice. See Code Civ. Proc. § 128. In addition, the Court may, upon motion of an injured party or its own motion, correct clerical mistakes in judgments or orders as entered, so as to conform to the judgment or order directed. Code Civ. Pr...

Excerpt: ...ated that the action will proceed to a default prove‐up hearing. Plaintiff Federal National Mortgage Association (FNMA) now moves for an order substituting MTGLQ Investors, L.P. (MTGLQ) as plaintiff in place of FNMA. The motion is brought because FNMA has transferred its beneficial interest in the property to MTGLQ. Following transfer of an interest in an action or proceeding, the action or proceeding may be continued in the name of the origina...

Excerpt: ...e motion was granted on September 25, 2017, and Ms. Salas was given leave to file a verified answer. When no verified answer was filed, Ms. Salas' default was taken on October 23, 2017. Proof of service relating to Vint Stevenson was next filed in December 2017. It demonstrated substituted service on May 4, 2017, and his default was taken on January 8, 2018. Nevertheless, an Order to Show Cause (OSC) re Monetary Sanctions issued from this Court i...

Excerpt: ...ith the Court. A Claim of Exemption has an unusual procedure. Most of the documents are “filed” by the parties with the levying officer. The only document filed directly with the Court by the Judgment Creditor is the “Notice of Hearing” which sets a hearing date. This document is served on both the levying officer and the Judgment Debtor. The service of this document triggers the levying officer to file with the Court the original Claim o...

Excerpt: ...lt in the interests of good faith negotiations and speedy resolution of the matter. The Court notes that there is still no answer on file, and that no request for entry of default has been filed. Given counsel's response, today's matter is continued to Monday, August 13, 2018 at 8:30 a.m. in Department 8 for further proceedings on the OSC. Counsel is ordered to require the filing of an answer, or request entry of default of the parties, by the co...

Excerpt: ...iffs believe they cannot proceed with the default prove‐up hearing until the matter is resolved with the insurance company. The Court notes that there is no proof of service of the Complaint on Ms. Nieves and Mr. Fulkerson, and no recent status has been provided over plaintiffs' settlement efforts. An appearance is necessary on today's calendar to provide the Court with a status regarding settlement efforts. An appearance on the law and motion ...

Excerpt: ... summons was also granted on June 11, 2018, permitting service of summons on Small Equity Initiative, LLC and ISG Illumination Systems, LLC, by delivery to the Secretary of State. In light of the current service efforts of plaintiffs and counsel, the Court declines issuing sanctions at this time. However, in order to make certain that the case is brought to issue in the near future, hearing on today's Order to Show Cause re Monetary Sanctions is ...

Excerpt: ...s response, and declines from issuing sanctions. The Court notes that defendant Shree Shiva, LLC's default has been taken, and that defendants Bhupendrasinh Thakor and Sudhaben Thakor have only just recently been named in the action. As such, this case does not appear to be at issue. The trial date of July 10, 2018 is hereby VACATED and the matter set for review regarding status of service and trial re‐ setting on Monday, July 23, 2018, at 9:00...

Excerpt: ... property held in a trust. The Court determined that the matter was improperly filed as an unlimited civil action. The matter was set for review on May 14, 2018, to determine whether the matter could be transferred to the probate court. Plaintiff failed to provide any authority that would permit for such a transfer, and the instant Order to Show Cause re Dismissal (“OSC”) issued for lack of subject matter jurisdiction. No response to the OSC ...