Excerpt: ...e of action. (Code Civ. Proc., § 437c, subd. (o)(1).) A summary judgment motion is properly granted where the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not show facts sufficient to present a triable issue of fact. (Parker v. Twentieth Century‐Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion is not to be granted where any triable issue of material fact exist...

Excerpt: ...Statement, UMF Nos. 1‐3.) Liability is not at issue as Defendants stipulate that NACUA was negligent. (Plaintiff's UMF No. 4.) An issue crucial to the determination of both motions is whether Plaintiff maintained insurance effective on the date of the January 9, 2018 accident. It is uncontested that Plaintiff, at the time of the subject accident, did not have a valid California driver's license or license from another state. (Defendants' Additi...

Excerpt: ...ustained “if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.” (Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 38, italics in original; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 870‐871.) Defendants' demurrer to the third cause of action for negligence is sustained without leave to amend. A plaintiff seeking to recover from parents for the tort of a child “must ...

Excerpt: ...cords are proffered, all other content unrelated to the specific issue must be redacted. Plaintiff's Motion in Limine #2: That the court take judicial notice of Exhibit A (Municipal Ordinances of the City of Vallejo); Exhibit B (Documents produced by Vallejo Planning Department) and Exhibit C (Documents produced by Vallejo Flood and Sewer District). This motion is moot. Cross‐complainant stipulates to the authenticity of these documents, but re...

Excerpt: ...nente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [64 Cal.Rptr.2d 843, 938 P.2d 903].) In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [58 Cal.Rptr.2d 875, 926 P.2d 1061] (Rosenthal), our Supreme Court explained the requisite procedure: “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine wh...

Excerpt: ...ent evidence to establish the location of the vehicle. C.C.P. §512.010(b)(4). Given each individual's constitutional right against unreasonable search and seizure, plaintiff must establish probable cause that the vehicle is located on the subject property. Probable cause must be supported by information which has evidentiary value. (See also Ahart, California Practice Guide, Enforcing Judgments and Debts, §4:693, pp. 4‐143 and 4‐144.) Plain...

Excerpt: ...y of Attorney's Fees. Civil Code section 1717, subdivision (a) provides that in “any action on a contract” a prevailing party may recover attorney's fees and other costs incurred to enforce that contract where the contract specifically provides for such recovery. The 1990 Pipeline Easement Agreement between the parties in this case provides: “In the event of any controversy, claim or dispute relating to the interpretation or enforcement of ...

Excerpt: ...an action against a public entity and failure to present a claim to the public entity is fatal to the suit. (State of Cal. v. Superior Court (2004) 32 Cal.4th 1234, 1240; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454‐455; Sofranek v. County of Merced (2007) 146 Cal.App.4th 1238, 1246; Spencer v. Merced County Office of Educ. (1997) 59 Cal.App.4th 1429, 1434‐1435; Taylor v. Mitzel (1978) 82 Cal.App.3d 665, 672.) This claims pres...

Excerpt: ... years since her last treatment; that plaintiff now had complaints specifically of left knee pain; and that plaintiff's new physician projected future medical specials in excess of $560,000.00. The parties met and conferred unsuccessfully. The trial has already been continued. The court distinguishes the complaints identified in plaintiff's deposition from the new complaints. The deposition testimony of plaintiff that she experienced pain “from...

Excerpt: ...d to enforce that contract where the contract specifically provides for such Page 2 of 4 recovery. The CC&Rs underlying this action specifically provide that remedies for actions brought to enforce the CC&Rs shall include “all costs incurred and reasonable attorneys' fees sustained in commencing and/or defending and maintaining such lawsuit.” (Second Amended Complaint at ¶ 5, Exhibit A [CC&R 6.1.4].) Defendant, the prevailing party in this a...

Excerpt: ... by the Altman Law Group. Attorneys' fees claimed by Rosner, Barry & Babbitt are disallowed, Plaintiff having failed to establish that any work provided at the trial level by appellate counsel was reasonably incurred under the circumstances. Having considered the relevant factors presented by the parties, the court declines to award any fee enhancement. Plaintiff is awarded all costs claimed in her memorandum of costs. Not only has Defendant fail...

Excerpt: ...st Defendant Pontus Capital. Although Plaintiff claims that the fifth cause of action for quantum meruit was not alleged against Defendant, Plaintiff filed an amendment to the complaint on March 18, 2019 specifically adding Defendant Pontus Capital as a defendant to that cause of action. But, Plaintiff has not alleged any facts showing he rendered services at the request of Defendant Pontus Capital. (Strong v. Beydoun (2008) 166 Cal.App.4th 1398,...

Excerpt: ... but repeatedly stated policy encourages liberality in allowing amendment. (See Frost v. Witter (1901) 132 Cal. 421, 424; Cardenas v. Ellston (1968) 259 Cal.App.2d 232; Kolani v. Gluska (1998) 64 Cal.App.4th 402, 412.) Leave to amend regarding the P1AC's allegations of FCA's knowledge and concealment of problems with the PowerNet system and similar electrical architecture systems in FCA's vehicles is denied because those allegations are brought l...

Excerpt: ...n amendment. (See Cardenas v. Ellston (1968) 259 Cal.App.2d 232, 239 [court justified in permitting amendment of answer after cutoff date same court had set during pretrial conference].) Plaintiff's citation to Code of Civil Procedure section 438 is irrelevant as that section applies to amendments made after motions for judgment on the pleadings. The contents of DARREN's amended answer do not now take Plaintiff by surprise as the amended answer w...

Excerpt: ...subdivision (d) authorizes a prevailing plaintiff in a Lemon Law case to recover reasonable attorney's fees. The trial court's determination of Lemon Law attorney's fees starts with the “lodestar” of reasonably incurred number of hours times reasonable hourly rate, taking into account such factors as the complexity of the case and the skill displayed by the attorney. (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.) Lemon ...

Excerpt: ...ident, but also cited wildfires and that one of the defendants was in Oregon and would be required to travel to California to track down documents. An extension was granted. A second request for a two‐week extension was made August 31, 2020 which was again granted. On September 1, plaintiff's counsel requested a continuance of the deposition. Ultimately plaintiff's counsel agreed and continued the deposition to October 23, 2020, a date proposed...

Excerpt: ...3(b) based upon mistake, inadvertence, surprise or excusable neglect. The motion is denied. OSI is an Illinois corporation doing business in California. At all times relevant, OSI's designated agent for service of process was CT Corporation. (Declaration of Kenneth Freed, Exhibit 1.) Creditors Adjustment Bureau, Inc. (CAB), a collections agency and assignee of a debt owed to State Compensation Insurance Fund by OSI, filed its complaint in Solano ...

Excerpt: ...cial mail establishment did not forward her the lawsuit, Defendant's declaration fails to establish that she did not actually receive a copy of the lawsuit by mail. (See CCP § 473.5.) Defense counsel acknowledges receiving an emailed courtesy copy of the summons and complaint on March 2, 2020, after he initiated a request for such documents to Plaintiff's counsel. While Defendant may not have authorized her attorney to accept service of process ...

Excerpt: ... is denied. In this case the easement agreement between the parties states that “[i]n the event of any controversy, claim, or dispute relating to interpretation or enforcement of this Agreement, or to the Easement, the prevailing party shall be entitled to recover from the non‐prevailing party reasonable attorneys' fees, costs of suit and expert witness fees.” (Declaration of Michael E. Vinding at ¶ 7, Exhibit 1.) This action was indisputa...

Excerpt: ...ted cannot defend the action against them. Plaintiff may submit the Request for Entry of Default as to these defendants forthwith. Absent a negotiated agreement for resolution between the Receiver and COMPASS BANK (which must be approved by the Court), COMPASS BANK may proceed to a default judgment prove‐up hearing as to the corporations. As the answers for these corporations are stricken, so are the oppositions to the summary judgment motions ...

Excerpt: ...p inquiry guides exercise of this discretion: first, the court determines if the inmate is indigent; second, the court determines if the action represents a bona fide threat to his personal or property interests; and third, after affirmatively answering the first two questions, the court must determine what remedy to use to protect the person's right of meaningful access to the courts. (Ibid.) The court, after examining the totality of the circum...

Excerpt: ...s may be historical, i.e. prior DUI history of causing a serious automobile accident, numerous DUI arrests and convictions, pending DUI charges or active DUI probation. (See, id. at 893.) Alternatively, the circumstances may also be case dependent, such as egregious and highly dangerous driving patterns or extremely high risk situations. (See, Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90.) Alleging that a defendant was DUI without additio...

Excerpt: ...n amendment. (See Cardenas v. Ellston (1968) 259 Cal.App.2d 232, 239 [court justified in permitting amendment of answer after cutoff date same court had set during pretrial conference].) Plaintiff's citation to Code of Civil Procedure section 438 is irrelevant as that section applies to amendments made after motions for judgment on the pleadings. The contents of DARREN's amended answer do not now take Plaintiff by surprise as the amended answer w...

Excerpt: ...n file a new motion under C.C.P. §2030.300 to compel even further responses as to those interrogatories, if they comply with all of the procedural requirements for such a motion). As to the 3 interrogatories remaining at issue (8, 18 and 20), the court declines to compel a further response to any of them. Page 2 of 3 As to interrogatories 8 and 20, the court recognizes that under the modified collateral source rule, information about payment by ...

Excerpt: ...e property by Cross‐Defendants MIKE LOWRIE TRANSPORT, INC. (“MLT”), MIKE LOWRIE, JOSH LOWRIE, and unnamed DOES. (First Amended Cross‐Complaint (“1ACC”) at ¶¶ 5‐6.) Cross‐complainant alleges that in 2018 CHRISTOPHER VAN VELDHUIZEN (“VAN VELDHUIZEN”), an officer of SIERRA SILICA, communicated with MLT representatives about satisfaction of SIERRA SILICA's debts to MLT for trucking services rendered but that even after payments ...

Excerpt: ...ff's health, the threshold for providing information about medical diagnoses and prognoses is very low. C.C.P. §36.5 allows such information to be provided by a party's attorney, based on information and belief. Therefore, “[t]he attorney's declaration can consist entirely of hearsay and conclusions”. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §12:247.1, p. 12(I)‐43, citing Fox v. Superior Court (2018) 21 Cal.App.5th 529...

Excerpt: ...ally alleged the roles specific defendants have played in the two written loan agreements on which the causes of action are based and the use of the term in the subheadings do not impair Defendants' ability to understand the complaint or determine the issues that must be met. (People v. Lim (1941) 18 Cal.2d 872, 882.) Plaintiff has alleged facts establishing that Defendant Dwight Davenport was a party to the agreements on which the first and thir...

Excerpt: ...affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any…resulting default judgment or dismissal entered against his or her client, unless the court finds that the default of dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal ...

Excerpt: ...R during the time of the events described in the complaint, is in Riverside County. The court takes judicial notice of all proffered facts as relevant, not reasonably subject to dispute, and capable of immediate and Page 5 of 6 accurate determination by resort to sources of reasonably indisputable accuracy. (Ev. Code, § 452, subd. (h).) Merits of Motion. Code of Civil Procedure section 397, subdivision (a) states that venue may be changed when t...

Excerpt: ...action.” (Kelly v. House (2020) 47 Cal.App.5th 384, 393, quoting Bell v. Vista Unified Sch. Dist. (2000) 47 Cal.App.4th 672, 686‐687.) Although apportionment may not be necessary if attorneys' fees are incurred for representation on an issue common to causes of action for which attorneys' fees are proper and for which they are not, or if it is impracticable or impossible to separate the attorneys' time into compensable and noncompensable unit...

Excerpt: ...Act. With respect to the lodestar amount, Plaintiff's billed hours are generally reasonable with some exceptions. The nature of this litigation is routine with standardized pleadings and discovery requiring minimal adaptation for use in this suit. The case resolved early with no law and motion other than this fee motion (which took longer to draft than the complaint). Despite the simplicity of the suit, Plaintiff utilized five different attorneys...

Excerpt: ...construed and must correctly set forth the amounts required to cure the default. (Angell v. Superior Court (1999) 73 Cal.App.4th 691, 699; Sweatt v. Foreclosure Co. (1985) 166 Cal.App.3d 273, 278.) A trustee's sale based on a deficient notice of default would be invalid. (Miller v. Cote (1982) 127 Cal.App.3d 888, 894.) Plaintiff would suffer irreparable harm absent the injunction and the balance of harms favors Plaintiff. Posting of an undertakin...

Excerpt: ...pute regarding these matters has been rendered moot by the service of amended responses. Should Plaintiffs continue to find any of these responses insufficient, they may file an appropriate motion within 45 days of the service of verified responses or any later date to which the parties agree in writing. (Code Civ. Proc. §§ 2031.310(c), 2033.290(c).) The court reminds the parties that they must make a “reasonable and good faith attempt at an ...

Excerpt: ...onses in her counsel's October 2, 2020 communication with Plaintiff. This is unavailing because the October 2, 2020 communication was simply a letter, not a set of verified responses to discovery, and was not timely provided. A meet and confer letter arriving after the filing of a motion to compel cannot moot the motion to compel. The court notes that the failure of SUZANNE's counsel to timely respond to GERALD's requests for stipulations to exte...

Excerpt: ...963) 60 Cal.2d 303, 305; Brizuela v. CalFarm Ins. Co. (2004) 116 Cal.App.4th 578, 590.) Actual prejudice, such as the substantial likelihood that a trier of fact would have found in favor of the insured had the insured not breached the cooperation clause, must be shown. (Billington v. Interinsurance Exch. of S. Cal. (1969) 71 Cal.2d 728, 737‐738; State Farm Fire & Cas. Co. v. Miller (1970) 5 Cal.App.3d 837, 840.) Defendant presents undisputed e...

Excerpt: ...defendants BARBER AUTO MALL PROPERTIES, L.P.; BARBER FAIRFIELD MANAGEMENT COMPANY, LLC; and RONALD L. BARBER (“BARBERS”) is subject to arbitration and the scope of that arbitration. It is undisputed that the Real Estate Purchase Agreement (“REPA”) assigned to Crosscomplainant contains an arbitration clause. Any party to a contract containing an arbitration provision may file a petition to compel arbitration of a dispute or disputes, as lo...

Excerpt: ... Plaintiff's counsel used the identical lengthy recitation of complaints regarding the subject parking lot which predated the subject incident and listed a long series of documents produced by Defendant. The responses are not responsive to the specific question asked by defense counsel in Special Interrogatories 8 and 14. And, other than boilerplate general objections at the beginning of the Response, no specific objections were raised by Plainti...

Excerpt: ... Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint must allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acqua...

Excerpt: ...of the Valley Hospital Radiology, and Lucky Pharmacy. VICKIE's motion is partially granted and partially denied. While individuals have a constitutional and statutory right to privacy in their medical and psychological records, that right to privacy may be waived by a plaintiff placing her mental status at issue in the course of litigation. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014 (Davis).) An implicit waiver of rights encompasses...

Excerpt: ...edical and psychological records, that right to privacy may be waived by a plaintiff placing her mental status at issue in the course of litigation. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014 (Davis).) An implicit waiver of rights encompasses discovery “directly relevant” to the plaintiff's claim and “essential to the fair resolution of the lawsuit.” (Ibid.) Subsequent to responding to discovery describing the scope of her e...

Excerpt: ...lice” means conduct intended to cause injury. (Civ. Code, § 3294, subd. (c)(1).) A plaintiff may not conduct pretrial discovery with respect to evidence of a defendant's financial condition without a court order permitting such. (Civ. Code, § 3295, subd. (c).) The court may grant such an order upon motion by the plaintiff supported by affidavits, and a hearing if the court deems one necessary, if the court finds that there is a substantial pr...

Excerpt: ...not to actions for breach of contract. Plut v. Fireman's Fund Inc. (2000) 85 Cal.App.4th 98. Introduction of evidence regarding insurance is admissible if it is not offered to prove negligence or wrongdoing. Seeno Motion in Limine No. 2: to exclude allocation of defense costs, and to exclude evidence of reasonableness of defense costs. Denied. Case law allows the allocation of defense costs. See, e.g., Pulte Home Corporation v. CBR Electric (2020...

Excerpt: ...ained for multiple reasons, the court does not reach Defendant's arguments that the claims were released pursuant to a settlement or that the individual claims are barred. In 2011, Plaintiff filed Solano County Superior Court Case No. FCS038985 against Defendants HSBC Bank USA, N.A., Accredited Home Lenders, Inc., Western Progressive, LLC and Does 1‐100, alleging improprieties surrounding the foreclosure of her home (the “Property”). (Reque...

Excerpt: ...tion of $210 in filing and service costs, Defendants claim costs that are not authorized by statute, mostly consisting of travel and meal expenses that were not incurred to attend depositions. Defendants have not opposed this motion and have not justified any of these expenses as reasonably necessary to the conduct of the litigation or reasonable in amount. (Code Civ. Proc. § 1033.5(c).) Accordingly, these $14,087.53 in “other costs” shall b...

Excerpt: ...icial notice of the complaint in this case. The court need not take judicial notice of a document that is already a part of the record of this case. Legal Theories of Public Entity Liability for Dangerous Conditions. The issue is whether Plaintiff may maintain causes of action holding Defendant liable for the negligence of its employees and independent contractors that may have caused his injury from tripping over a jagged metal post on the sidew...

Excerpt: ...will not lie to only a part of a cause of action; therefore, to prevail on the demurrer Defendant must demonstrate that the SAC fails to state both of these claims. Violation of §1.1 LAW AND MOTION TENTATIVE RULINGS DATE: OCTOBER 23, 2020 TIME: 8:30 A.M. 3 In ruling on the demurrer to the FAC the Court found that Plaintiffs had not stated a violation of §1.1. Plaintiffs have not changed their core allegations as to a violation of this section, ...

Excerpt: ...��COCA‐COLA”) and Defendant RANDSTAD US, LLC. (“RANDSTAD”) in connection with his employment at a COCA COLA packing plant between October 2018 and March 2019. APODACA alleges he was a temporary employee hired through RANDSTAD's Fairfield office to work at the plant located in American Canyon. On February 7, 2020, RANDSTAD filed the instant demurrer and motion to strike. That same date, COCA‐COLA filed its special demurrer, demurrer and ...

Excerpt: ...isposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) #1. DARREN objects that Plaintiff's “Compendium of Evidence” (CE”) item 1A, a Vallejo Police Department police report, is hearsay. The objection is sustained. #2. DARREN objects that Plaintiff's CE‐1B, a transcript of the hearing in Solano County Case No. FCS048949, is hearsay and selectively edited. DARREN specifically objects to three sections of the transcript Plaintiff c...

Excerpt: ...e statutory basis of Plaintiff's first cause of action outright and provides Plaintiff standing to maintain her second cause of action. Its repeal as of January 1, 2020 is thus a point of major concern to this demurrer. (Civ. Code, § 2920.7, subd. (o) [statute automatically repealed Jan. 1, 2020].) It is “a general rule…that a cause of action or remedy dependent on a statute falls with a repeal of that statute, even after the action thereon ...

Excerpt: ...ICH is overruled. Legal Standard. The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with...