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: ... “any matter relevant to the leave requested,” which includes but is not limited to: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 2 (3) Any likelihood that permitting the discovery or hearing the discovery motion will pre...

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: ...t, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies t...

Excerpt: ...icant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this secti...

Excerpt: ... GRANTED. Merits of the Motion: CCP §396b(b) provides in relevant part: In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) wh...

Excerpt: ...al. App. 4th 1462, 1468. CCP § 1281.2 requires the court to grant a petition to compel arbitration where it determines that an agreement to arbitrate the controversy exists. “When presented with a petition to compel arbitration the trial court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute.” Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal. App. 4th 50, 59. A party seeking to compel ...

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: ...ss the moving party's evidence. Further, the separate statement in opposition is not in any of the formats prescribed by CRC 3.150(h). The Court will overlook the procedural defects and issue a ruling on the merits. Evidentiary Defects: Defendant has submitted no evidence in support of its opposition and separate statement. The Court notes that Defendant's separate statement cites to a declaration but no declaration was submitted. Therefore, ther...

Excerpt: ...asement for ingress and egress to and from the Upper Sacramento River. The Amended Judgment also ordered Defendants to remove or modify the portion of the chain link fence that prevents Plaintiff's use of the easement. Now Plaintiffs seek further orders against the Defendants on the grounds that the gate and chain link fence continue to interference with Plaintiff's easement. The general rule is “the owner of the servient tenement may make any ...

Excerpt: ...ear the motion on its merits. Request for Judicial Notice. The Court may take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States” under Evidence Code section 452(c). Further, under § 452(b), the Court is permitted to take notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public e...

Excerpt: ...hould pursue claims against, and that if a claim was submitted to the City, it would be denied and forwarded to the lessee of the property. In the months following, counsel for the Petitioner's legal assistant corresponded with several insurers. On July 8, 2019, the insurer rejected the claim and suggested it be forwarded to the City of Redding, who was responsible for the maintenance of the parking lot. Petitioner ultimately submitted a claim an...

Excerpt: ...rial.” CRC Rule 3.1332(c)(7). Counsel's vacation has been found to be good cause (albeit in a stipulated continuance). See Cotton v. StarCare Medical Group (2010) 183 Cal. App. 4th 437. Trial counsel's engagement in another trial is good cause. See, e.g., Oliveras v. County of Los Angeles (2004) 120 Cal. App. 4th 1389. In determining whether to grant or deny a motion to continue, the Court considers a number of factors, as outlined in CRC 3.133...

Excerpt: ...erved on the third party. CRC 3.1346. No proof of service was filed in this matter, however, a responsive pleading by the Defendants indicates that service of the motion was made by mail on December 13, 2 2019. Furthermore, the motion is untimely under CCP § 2025.480, which requires the motion to compel attendance at a deposition “shall be made no later than 60 days after the completion of the record of the deposition.” Although the motion i...

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: ... the Court can also retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. The parties entered into a settlement orally in open court on June 24, 2019. The terms of the settlement were memorialized by the Court in writing and signed by both parties and attached to the minute order of June 24, 2019. The settlement provided that Defendant would pay the amount of $15,000.00, plus 7% i...

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: ... 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: ...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: ...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: ...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: ... 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: ..., 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: ...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: ...) 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: ...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: ...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: ...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: ... 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: ...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: ...l basis upon which they are entitled to relief under CCP § 430.10(e), specifically as to a duty owed. As such, the pleadings fail under CCP § 430.10(f) as uncertain. Defendant requests in a footnote that the Court take judicial notice of the original complaint. The request for judicial notice, although procedurally deficient, has not been objected to and is therefore GRANTED. The present case arises from Plaintiff's fall from a bunk bed or slee...

Excerpt: ...ion rather than merely convenient or beneficial to its preparation and “reasonable in amount.” CCP § 1033.5(c)(2) and (3). The right to costs is statutory in nature and a court has no discretion to award costs not authorized by statute. Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774. However, the court does have the power to disallow costs “allowable as a matter of right” if they were not “reasonably necessary,”...

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: ... (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: ... 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: ...to set aside the default judgment entered pursuant to CCP § 473. Defendant alleges that service was invalid and the resulting judgment was therefore void. Defendant's wages from Grove Contracting, Inc., a California Corporation, have been garnished to satisfy this judgment since 2015. He explains that he would have brought this motion earlier, but he contends he was represented by incompetent counsel. Merits of Motion: “Personal service remain...

Excerpt: ...and whether a further response is required to each discovery request at issue in the motion. No opposition to the motion was filed. Overbroad, Overburdensome and Oppressive: Plaintiff's responses to discovery repeatedly object on the grounds that the discovery is overbroad, overburdensome, and oppressive. No reason is given, and there is nothing in the responses to indicate how responding to the discovery would be unduly burdensome. The Court doe...

Excerpt: ...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: ...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: ...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: ...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: ...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: ...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: ...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...