Excerpt: ... portion of Defendants' motion constitutes an improper disguised motion for reconsideration. (See, Morite of Cal. et al. v. Superior Court (1993) 19 Cal.App.4th 485, 490 [a motion for reconsideration pursuant to Code of Civil Procedure section 1008 is the exclusive means for a party to seek modification, amendment, or revocation of an interim order].) Defendants' demurrer to the third cause of action for negligence is sustained without leave to a...

Excerpt: ...ciaries of a trust have no standing to sue on claims belonging to the trust. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §§2:6.5 through 2:6.7, pp. 2‐4 and 2‐5. It is the trustee of the trust who has standing and capacity to sue, to assert claims on behalf of the trust, and its beneficiaries. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §2:6, p. 2‐3. As to each of the causes of action asserted by trustee ...

Excerpt: ... liability. Both causes of action share the same elements of duty, breach, causation and damages. Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury”]. The majority of Defendants' arguments in this motion seek to negate a necessary element shared by both the negligence and the p...

Excerpt: ...Santa Clara Street, Ste 278, Hayward, CA 94544 (510) 266‐5826. Defendant served the motion upon Plaintiff and assignee. 4 COLLECTRIX subsequently filed an untimely opposition to this action. Further, a pro per cannot appear on behalf of a limited liability corporation as to do so constitutes an unauthorized practice of law. The court strikes the Opposition. The record shows that Mr. Childs had actual notice of the lawsuit. The lawsuit was maile...

Excerpt: ...ported by evidence and law. (See, e.g., Grappo v McMills (2017) 11 Cal.App.5th 996, 1013.) Plaintiff is awarded reasonable attorneys' fees of $21,381.02 in securing the default judgment as to Quinto, as calculated using the schedule of attorneys' fees in default matters provided by local rule. (Local Rules of Court, rule 9.1, subds. (a), (d).) Plaintiff has not established that the award of a higher amount is warranted or reasonable under the cir...

Excerpt: .... There are two essential elements to the issuance of a writ of mandate: 1) a clear, present, and usually ministerial duty upon the part of the respondent and 2) a clear, present, and beneficial right in the petitioner to the performance of that duty. (Venice Town Council v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1558.) Although the duty to screen an inmate appeal is ministerial, the decision to reject or cancel an inmate appeal is a dis...

Excerpt: ...is premature. There are numerous legal and/or factual issues that must be determined before the court can properly evaluate the motion to compel AAA appointment of a third appraiser, including, but not necessarily limited to, whether delivery of sealed appraisals to a mutually agreed‐ upon escrow agent was excused because of impossibility when the parties did not mutually agree upon an escrow agent; whether Defendants' refusal to consent to the...

Excerpt: ... mental examination. Plaintiff placed her mental and emotional condition at issue in the Complaint and is making a claim for mental and emotional distress above and beyond that usually associated with the physical injuries claimed. (C.C.P. §2032.320.) Good cause is also shown for the examinations to take place more than 75 miles from the current residence of the plaintiff. The accident occurred in California; plaintiff treated in California; the...

Excerpt: ... liability. Both causes of action share the same elements of duty, breach, causation and damages. Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury”]. The majority of Defendants' arguments in this motion seek to negate a necessary element shared by both the negligence and the p...

Excerpt: ...tice of several recorded documents pertinent to this Homeowner's Bill of Rights action, as well as documentation from Plaintiff's Chapter 7 bankruptcy case. Plaintiff also requests judicial notice of certain documentation from her bankruptcy case. The court takes judicial notice of all proffered recorded documents as facts not reasonably subject to dispute and capable of ready and accurate determination. (Evid. Code, § 452, subd. (h); Md. Casual...

Excerpt: ...e action as a whole and the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Subdivision (d) permits a court to grant any motion for preference in its discretion if it sees clear and convincing medical documentation concluding that a plaintiff suffers from an illness raising substantial medical doubt of the plaintiff's survival beyond six months and the court believes that a...

Excerpt: ...this action. A central component of the discovery process is the identification of potential witnesses and the disclosure of names and addresses is generally considered to be a routine and essential part of pretrial discovery. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249‐1250.) Name and address information, while personal, is not particularly sensitive and may not arise to the level of a significant invasion in comparison to “m...

Excerpt: ...ilure to effectuate service on Plaintiff and defense was brought to the attention of Plaintiff's counsel. An amended motion was filed June 30, 2021, which did not supplement prior declarations in response to issues raised by the court on June 24, 2021, and again was not accompanied by any proof of service on Plaintiff's client or the counsel for defendants. Further, deficits with respect to representation of Plaintiff's interests were pointed out...

Excerpt: ...ear limitations period. (Com. Code § 2725(1); Mexia v. Rinker Boat Co. (2009) 174 Cal.App.4th 1297, 1306.) A cause of action for breach of an implied warranty cannot accrue any later than one year after tender of delivery of the good, the “limited prospective existence beyond the time of delivery” provided by the SongBeverly Act. (Com. Code § 2725(2); Mexia, 174 Cal.App.4th at 1308‐1309.) And, while a breach of an express warranty contemp...

Excerpt: ...led they solely concern the payment of rents by individuals who are not parties to this case. As to Defendants, the demurrer is sustained without leave to amend. Specific Performance. The facts Plaintiff presents in its opposition brief concerning Defendants' alleged default on loan payments occurring after the first amended complaint was filed support leave to amend to allege a breach of contract cause of action but do not defend against the ins...

Excerpt: ... Although “conspiracy” is not a separate cause of action, but a means to impose liability on a party who engaged in a common plan or helped perpetrate a tort with the immediate tortfeasors who committed the wrongful act (Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal.4th 503, 510‐511), and Cross‐ defendant Sandhu is alleged to be the actual tortfeasor who committed the wrongful act, making any allegation of conspiracy against Cr...

Excerpt: ...3AC ¶¶ 3‐4, 11‐14.) She alleges she objected directly to BRANSON who then used his position as her supervisor to harass and retaliate against her. (3AC ¶¶15‐16.) Subsequently, she complained to BRENDEN THEATRE's general manager and alleges that thereafter BRENDEN THEATRE failed to timely and properly investigate her complaint, and wrongfully discharged her while retaining BRANSON. (3AC ¶¶ 17‐18.) Plaintiff further alleges that durin...

Excerpt: ...ed a serious latent manufacturing defect (the “Engine Defect”). Legal Standard on Demurrer. “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 a...

Excerpt: ...epared to address the following concerns: 1. Should this motion have been served on the parties in the related actions? 2. The motion for preliminary approval indicates attorneys' fees “up to 35%.” Parties are advised that the court is not likely to approve 35% without a crosscheck or comparison to a lodestar with multiplier and should be prepared to address why the range of 25% to 33 1/3% which is more commonly awarded under a common fund ap...

Excerpt: ...n, allow amendments to pleadings “in furtherance of justice.” (Code Civ. Proc. 473, subd. (a)(1).) The court has wide discretion here 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.) Construction of Labor Code Section 558.1. The court finds it is legally possible for the priva...

Excerpt: ...d specific facts establishing entitlement to punitive damages. (See, Noonan v. Rousselot (1966) 239 Cal.App.2d 447, 453 [specific facts showing actual malice must be pleaded].) Conclusory characterizations of a defendant's conduct as intentional, willful, or fraudulent are insufficient. (Brousseau v. Jarrett (1977) 73 2 Cal.App.3d 864, 872.) “When nondeliberate injury is charged, allegations that the defendant's conduct was wrongful, willful, w...

Excerpt: ...fendant's opposition to the motion was due. It was not unreasonable for Plaintiffs to seek relief from the court. Despite receiving no response to the discovery originally and having no obligation (except good practice) to meet and confer with new counsel, the parties stipulated on March 23, 2021, to a 45 day extension for the discovery responses which were due May 7. No evidence exists that Defendant requested a further extension in light of the...

Excerpt: ...a notice of express consent win this case or otherwise manifested affirmative consent, the court has not ordered electronic service on Medmark, and Medmark has not made an appearance in the action. (Code Civ. Proc. § 1010.6(a)(2)(A)(ii).) Prior to the continued hearing date, Defendant shall timely serve motion papers on Medmark in a manner authorized by statute. (Code Civ. Proc. §§ 1005(b), 1011‐ 1013.) In formally serving the motion, moving...

Excerpt: ...'s failure to properly and timely assert it. (Code Civ. Proc., § 1281.2, subd. (a).) This can happen when the proponent has unreasonably delayed in undertaking the procedure. (Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557.) The determination of waiver is a question of fact for the trial court. (Ibid.) Relevant factors to finding waiver include actions inconsistent with the right to arbitrate, whether the “litigation machinery h...

Excerpt: ...ng defendants' share of liability. All requirements having been satisfied, the motion is granted. The DUDLEYS' Motion to Contest DAN PALMER's Application for Determination of Good Faith Settlement TENTATIVE RULING ARNOLDO ATILIO GARAY (“GARAY”), Plaintiff in case FCS051729, moves for a determination of good faith settlement regarding settlement of his personal injury claims in that case against DAN PALMER TRUCKING, INC. (“DAN PALMER”) and...