Excerpt: ...dered Plaintiff's untimely Opposition [(C.C.P. §1005(b)], which exceeded the page limit permitted by CRC 3.113. (The Court also notes that Plaintiff's pleadings contain an incorrect email address for Plaintiff's counsel.) Defendant's motion is granted. Good cause has been shown for production of unredacted psychiatric records of the plaintiff. Defendant does not seek unlimited access, but merely for two years prior to the commencement of Plainti...

Excerpt: ...tion may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the motion. Obregon v. Superior Court (1998) 67 Cal.App.4th 424 [factors to be considered include the complexity of the discovery issues, the past history of the counsel on prior disputes, and to a certai...

Excerpt: ...s‐complaint, for quiet title and declaratory relief. Judicial Notice. Matters subject to judicial notice may support a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (b)(1).) The court takes judicial notice of all proffered items from both parties with the exception of DROLET's Exhibit 18, constituting sections of the Uniform Plumbing Code. (Ev. Code §§ 452, subds. (b), (c), (h) [notice permitted of public entity regulations and...

Excerpt: ...ainst Defendant in federal court. Defendant additionally demurs to the complaint. Defendant's motion to dismiss as to Plaintiff GRACIELA SANCHEZ is granted. Defendant's motion to stay as to Plaintiff MAULID AMBARY is granted. The Court does not reach Defendant's demurrer. The Court takes judicial notice of Graciela Sanchez v Abbott Laboratories, Solano County Superior Court Case No. FCS054734, filed on May 4, 2020 and removed to federal court on ...

Excerpt: ...ees other than the amount of $1,520.00. The two other types of costs challenged by this motion appear in the “other” category, and consist of $2,549.47 in RecordTrak billings, and $67,274.80 in expert fees. RecordTrak billings reflect the equivalent of subpoenas to obtain records. Fees incurred to subpoena records are recoverable. (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 577‐578.) The court therefore declines to strike ...

Excerpt: ...s filed on May 31, 2018. On April 24, 2020, Defendant WESTLAKE SERVICES, LLC, filed the instant motion to enter judgment pursuant to a written settlement agreement signed December 17, 2019. That settlement agreement includes release terms and a promise that Plaintiff would dismiss WESTLAKE in exchange for certain payments. WESTLAKE submits supporting declarations indicating that the promised payments were made, but that Plaintiff has failed to di...

Excerpt: ...6:1576.1, p. 6G‐93; see also generally requirements for service of applications for writs of possession and for writs of attachment [C.C.P. §§512.030(b) and 482.070(d), respectively]. The only proof of service filed for this motion on non‐party TERO DEVELOPERS, INC. (“TERO”) claimed service by mail. In addition, insofar as this motion asserted theories of alter ego and successor corporation liability against TERO, neither is adequately ...

Excerpt: ...ode of Civil Procedure section 436, subdivision (a) permits a court to strike out any irrelevant, false, or improper matter inserted in any pleading, upon a motion or in its discretion. Irrelevant matters are those not essential to the statement of a claim or defense or not pertinent to or supported by an otherwise sufficient Page 3 of 3 claim or defense and demands for relief not supported by the allegations. (Code Civ. Proc. § 431.10.) Plainti...

Excerpt: ...ntative. (Prob. Code § 9351.) Plaintiff admits that he is required to comply with the “detailed procedures and related provisions with respect to claims filed by a creditor against the personal representative of an estate” and that an action may not be commenced unless a claim has been first filed as required by the Probate Code. (4AC, ¶¶ 22‐23.) But, Plaintiff has not alleged any facts suggesting that he has complied. Instead, Plaintiff...

Excerpt: ...�854.8 uses almost identical language to provide immunity to public entities to injuries occurring to an inpatient at a mental institution. Defendant CALIFORNIA DEPARTMENT OF STATE HOSPITALS (“DSH”) operates mental institutions such as Atascadero State Hospital, at which Michael Galliher (“Decedent”) was housed and treated, during parts of his extended incarceration, and thus could claim immunity under Government Code §854.8. This immuni...

Excerpt: ... of Am. (1997) 59 Cal.App.4th 1192, 1199; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689‐690.) Defendant Geico is awarded additional monetary sanctions from Plaintiffs in the amount of $4,416.50 for reasonable attorneys' fees incurred in opposing this motion. A motion for reconsideration of a discovery order, made without substantial justification and in the absence of any other circumstances making an award of sanctions unjust, is itself sub...

Excerpt: ...ff's motion is granted. As a de novo hearing, the trial court proceeding owes no deference to the Labor Commissioner's decision. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1116 (Murphy).) Review is of the facts presented to the trial court, “which may include entirely new evidence.” (Ibid., citing Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 948.) In light of this, and the fact that an employee need not admin...

Excerpt: ...c Safety Officer Procedural Bill of Rights (the “POBRA”) within Plaintiffs LISA MCDOWELL (“MCDOWELL”) and NATALIE RAFFERTY's (“RAFFERTY”) complaint. 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 mus...

Excerpt: ...p.5th 768, 780 (Argentieri).) First the defendant must make a threshold showing that the plaintiff's cause of action to be stricken arises from the defendant's free speech or petition activity as specified in the statute. (Ibid.) Second, if the defendant has made that showing, the burden shifts to the plaintiff to establish, by admissible evidence, a probability of prevailing on the claim. (Ibid.) If the plaintiff fails to do so, the motion to st...

Excerpt: ...ree years after the action is commenced against the defendant." (§ 583.210, subd. (a).) "[A]n action is commenced at the time the complaint is filed." (Ibid.) Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits. (§ 583.250, subd. (b).) The three‐year rule applies where the defendant seeking dismissal was served as a Doe defendant named in the original complaint, later amended to show his or her...

Excerpt: ...rocedural Bill of Rights (the “POBRA”), and relation in violation of the Labor Code within Plaintiffs LISA MCDOWELL (“MCDOWELL”) and NATALIE RAFFERTY's (“RAFFERTY”) complaint. 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 f...

Excerpt: ...p.5th 768, 780 (Argentieri).) First the defendant must make a threshold showing that the plaintiff's cause of action to be stricken arises from the defendant's free speech or petition activity as specified in the statute. (Ibid.) Second, if the defendant has made that showing, the burden shifts to the plaintiff to establish, by admissible evidence, a probability of prevailing on the claim. (Ibid.) If the plaintiff fails to do so, the motion to st...

Excerpt: ...2(a) confirms that a public entity is liable for injury proximately caused by an act or omission of its employee if the act or omission would have given rise to a cause of action against that employee. In general, anyone owes a general duty to act with reasonable care, and can be liable for reasonably foreseeable injury caused by the breach of this duty. A person generally has no duty to take action to help another. However, when one voluntarily ...

Excerpt: ...bilitation (“CDCR”) staff that allegedly mistreated Plaintiff. Government Code section 820.8 reads: “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” Plaintiff's allegations against DIAZ are that DIAZ had �...

Excerpt: ...s fees. (FAC at ¶¶ 46, 62, 72, and 89; Prayer at ¶¶ 2, 3.) Plaintiff is admonished that the prior motion to strike the claim for attorneys' fees was granted without leave to amend. Should defense counsel seek to recover fees and costs associated with Plaintiffs' inappropriate decision to include the stricken fees claim, such recovery can be addressed via a separate motion. Despite the intervening opportunity to engage in discovery, Plaintiffs...

Excerpt: ...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 the nature, source and extent” of the plaintiff's claim. (Doheny Park Ter...

Excerpt: ...court to June 4, 2020. On June 4, 2020, the court continued the above motions on the basis that Plaintiff intended to seek coordination of this action with an allegedly related suit pending in Monterey County Superior Court, Robledo v. Randstad US, LP, (Robledo), Monterey County Superior Court case no. M130588. The court did so to promote judicial economy. The file reflects that on June 3 and 5, 2020, Plaintiff submitted duplicate notices of the ...

Excerpt: ...to the fifth, sixth and ninth causes of action is sustained with leave to amend within 20 days. Defendants' demurrer to the seventh cause of action for nuisance is overruled. Defendants' motion to strike the claim for punitive damages is granted with leave to amend within 20 days. 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.A...

Excerpt: ...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 the nature, source and extent” of the plaintiff's claim. (Doheny Park Ter...

Excerpt: ...Nolin v. Nat'l Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285‐ 286; see, Food Pro Int'l, Inc. v. Farmers Ins. Exch. (2008) 169 Cal.App.4th 976, 994 [mere carelessness or ignorance does not justify punitive damages].) Conscious disregard alone is insufficient and an award of punitive damages requires either the intent to harm the plaintiff or both willful and despicable conduct. (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5t...

Excerpt: ...iano v. Lyle Doughty, FCS050116, dated November 6, 2018, and a quitclaim deed recorded in Solano County as document 1997‐00031840, showing Plaintiff's ownership of her property since 1997. Minute orders may be judicially noticed as records of a court of this state. (Ev. Code § 452, subd. (d).) The existence and legal significance of a recorded document may be judicially noticed as facts that cannot be reasonably controverted. (Ev. Code § 452,...

Excerpt: ...e note, deed of trust, assignment of deed of trust, substitution of trustee, notice of default, notice of trustee's sale, and trustee's deed pertaining to the foreclosure at the heart of this case. The court takes judicial notice of the existence and legal significance of these recorded documents, and the adjustable rate note, as facts that cannot be reasonably controverted. (Ev. Code § 452, subds. (c), (h); Poseidon Development, Inc. v. Woodlan...

Excerpt: ...portunity to negotiate and reach an agreement. As a result of the package deal, BMO Harris Bank N.A. (“BMO”) received a recovery in connection with its secured interest in the Nissan store and a potential recovery as a junior lien holder to the Toyota store. The parties do not dispute that TMCC holds a valid, perfected senior secured interest in all of the assets which relate to the Toyota store. Intervenor BMO holds the junior lien. The fact...

Excerpt: ... 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 the nature, source and extent” of the plaintiff's claim. (Dohen...

Excerpt: ... 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 the nature, source and extent” of the plaintiff's claim. (Dohen...

Excerpt: ...tion must be alleged with specificity to allow the court to determine whether there is a prima facie foundation for the charge. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 216‐217.) In an action for fraud against a corporation, the plaintiff must allege “the names of the persons who made the allegedly fraudulent representations, their authority to s...

Excerpt: ...ocha Dehe”), a federally recognized Indian tribal government. (Declaration of Anthony Roberts (Roberts) at ¶¶ 1‐2.) Yocha Dehe enjoys sovereign immunity from suit by default. (Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. (1998) 523 U.S. 751, 760.) Though Yocha Dehe partially waived its immunity when it entered into a compact with the State of California to operate Defendant as a gaming facility, that waiver only permits patro...

Excerpt: ...the landlord. Plaintiffs allege that the owner of the real property was Defendant Menemsha Equity, LLC, a limited liability company. (FAC, ¶¶ 5, 8.) Plaintiffs allege that Defendant Weisberg is the sole member of Menemsha who, at all relevant times, acted within the scope of his agency or representation for Menemsha. (FAC, ¶¶ 2, 6.) But, a limited liability company is distinct from its members. (Corp. Code § 17701.04(a).) The liabilities of ...

Excerpt: ...matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) For purposes of demurrer, a court assumes the truth of the allegations in the complaint, but not the contentions, deductions, or conclusions of law. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contac...

Excerpt: ....S.C. § 1666 and 12 CFR § 202.12. 15 U.S.C. § 1666 concerns correction of errors in billing statements. 12 CFR § 202.12 concerns allowable ways for a creditor to retain otherwise prohibited information and records related to the Equal Credit Opportunity Act. These items may be judicially noticed under Evidence Code section 452, subdivisions (a) and (b). However, the court declines to take judicial notice as these items do not bear on resoluti...

Excerpt: ...rnow (Weil & Brown), Civil Procedure Before Trial, §6:158, pp. 6‐57 and 6‐58; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [a “conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,' within the meaning of section 3294”]. Civil Code §3294(c)(1) defines malice as “conduct which is intended to cau...

Excerpt: ....S.C. § 1666 and 12 CFR § 202.12. 15 U.S.C. § 1666 concerns correction of errors in billing statements. 12 CFR § 202.12 concerns allowable ways for a creditor to retain otherwise prohibited information and records related to the Equal Credit Opportunity Act. These items may be judicially noticed under Evidence Code section 452, subdivisions (a) and (b). However, the court declines to take judicial notice as these items do not bear on resoluti...

Excerpt: ...rnow (Weil & Brown), Civil Procedure Before Trial, §6:158, pp. 6‐57 and 6‐58; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [a “conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,' within the meaning of section 3294”]. Civil Code §3294(c)(1) defines malice as “conduct which is intended to cau...

Excerpt: ...bilitation (“CDCR”) staff that allegedly mistreated Plaintiff. Government Code section 820.8 reads: “Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” Plaintiff's allegations against DIAZ are that DIAZ had �...

Excerpt: ...6 Cal.4th 446, 460.) Because Defendant has not met this burden, Plaintiff has no burden to produce any evidence or disprove anything and the court must deny the motion without looking at any opposing evidence. (Y.K.A. Indus., Inc. v. Redevelopment Agency of the City of San Jose (2009) 174 Cal.App.4th 339, 353‐354; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940; United Cmty. Church v. Garcin (1991) 231 Cal.App.3d 327, 338.) An insurance agent...

Excerpt: ...head, neck and spine by Dr. Tabaraee, M.D. in Manteca which is 67 miles from Fairfield. Defense shall provide Plaintiff with 3 proposed dates for examination. Plaintiff shall select 1 date among the 3 proposed dates. The examination will be conducted and completed on one day between the hours of 9 and 5 and limited to 4 hours in duration. Plaintiff shall undergo a mental examination related to his claims of short‐term memory loss, difficulty co...

Excerpt: ...ential to the statement of a claim or defense or not pertinent to or supported by an otherwise sufficient claim or defense and demands for relief not supported by the allegations. (Code Civ. Proc. § 431.10.) Punitive Damages. Civil Code section 3294, subdivision (a) provides that punitive damages are only available in actions not arising from breach of contract if is “proven by clear and convincing evidence that the defendant has been guilty o...

Excerpt: ... firm acting as escrow agent that completed transaction despite instructions from seller to terminate sale].) In this case, Plaintiff alleges that the foreclosure sale was completed May 1, 2018, that Defendant had duty to disburse surplus funds by June 8, 2018 and that, despite no other claimants to the surplus funds, Defendant maintained control of the funds and attempted to condition release of the funds upon dismissal of a suit Page 2 of 3 for...

Excerpt: ...nded. In FCS053677, Plaintiff alleges physical injury due to “excessive force.” On April 29, 2020, the parties appeared via Zoom in FCS053677 for a case management conference one hearing. The parties agreed the cases are related. Based upon that agreement, the court orders the cases to be related. To date, no motion or stipulation has been received by the Court to consolidate the two actions. Parties to appear to address consolidation of the ...

Excerpt: ...as a matter of law. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.App.4th 826, 850) Despite this court's prior ruling that “Defendant Forsythe owed [Plaintiffs] a duty not to create an unreasonable risk of injury to them and breached that duty by informing Defendant Snyder he would look the other way if Snyder drove over Plaintiffs' signs” (Minute Order (2/26/20)), a duty that is not based on the duties of an owner of real property owed to inv...

Excerpt: ...entire Declaration of Rob Reiter generally and to his various assertions of JPMC's negligence particularly. The court declines to rule on these objections to evidence as it deems them not material to disposition of the motion for summary judgment, as discussed below. (Code Civ. Proc. § 437c, subd. (q).) Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of action. (C...

Excerpt: ...th 1228, 1238; DeLeon v. Verizon Wireless, LLC (2012) 207 Cal.App.4th 800, 812.) Defendant concedes that he “did reside in the property for about two years”. (Decl. of Aaron Nguyen, ¶ 3.) And, regardless of whether Defendant can be held liable for breach of the lease agreement, the facts alleged in the complaint give adequate notice that Defendant may be held liable for intentionally or negligently causing damage to real property owned by Pl...

Excerpt: ...nesses and governmental agencies. However, these discovery issues arose prior to declaration of a state of emergency or imposition of shelter in place orders and the discovery has been pending since August 2019. In addition to the multiple extensions, the court also considered Defendant's delay in responding to Plaintiff's December 2, 2019 meet and confer letter and the contents of Defendant's February 12, 2020 meet and confer letter. A. Motion t...

Excerpt: ... 2, Unlabeled “Exhibit 2”; Decl. of Jones, Exh. B.) Page 2 of 3 These causes of action are all based on duties arising out of Defendant's attorney‐client relationship with Decedent. (Complaint, ¶¶ 23‐63, 76‐80.) Plaintiff does not have standing to commence these causes of action, which survive the death of Decedent. (Code Civ. Proc. § 377.20(a).) A cause of action that survives the death of the person entitled to commence an action �...

Excerpt: ...ed for Taylor Venegas and one pro per cannot be represented by another pro per. Further, from the Court's review of the file, it appears that Erika Venegas has executed numerous documents which appear to take action on behalf of Taylor Venegas or may have signed pleadings on behalf of Taylor Venegas. 2. Confirmation of the status of parties' appearance in this suit. Plaintiff Erika Venegas filed dismissals of previously named Defendants. Taylor V...

Excerpt: ...ed causes of action. Judicial Notice. The court may properly accept facts it may judicially notice or that cannot reasonably be controverted when ruling on a motion for judgment on the pleadings. (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.) Defendants request judicial notice of the first amended complaint (“FAC”) and the lease agreement between them, Rickie Welch, and Bobby Welch, II. The court decline...

Excerpt: ...rtaining to the foreclosure sale at issue in this case and Plaintiff's Chapter 7 bankruptcy. Page 5 of 6 The court takes judicial notice of the existence and legal significance of the recorded documents as facts that cannot be reasonably controverted. (Ev. Code § 452, subds. (c), (h); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) The court takes judicial notice of the bankruptcy court documents as r...

Excerpt: ...umption of those beverages. (Civ. Code § 1714(c).) The sole exception to this general rule of nonliability is when a “parent, guardian, or another adult … knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age”. (Civ. Code § 1714(d); Rybicki v. Carlson (2013) 216 Cal.App.4th 758, 764.) The term “furnish” requires an affirmative act to “to su...

Excerpt: ...ect is capable of cure and public policy favors great liberality in permitting amendment. (Aubry v. Tri‐City Hospital District (1992) 2 Cal.4th 962, 970‐ 971; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) Plaintiff has made a plausible case that it can plead sufficient facts to establish HOISETH's potential liability. HOISETH's demurrer is sustained in its entirety with leave to amend. Plaintiff shall have thirty days from the date of he...

Excerpt: ...Saverio E. Demitri.) The factors to be taken into account in the determination of whether a settlement is in "good faith" include a rough approximation of the plaintiff's total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among the plaintiffs, and a recognition that a settlor should pay less in settlement than if found liable after a trial. (Tech‐Bilt, Inc. v. Woodward�...

Excerpt: ...DeLeon v. Verizon Wireless, LLC (2012) 207 Cal.App.4th 800, 812.) Defendant concedes that he “did reside in the property for about two years”. (Decl. of Aaron Nguyen, ¶ 3.) Plaintiff alleges that each Defendant is the agent, employee, member, partner, principal, director, officer, heir, representative and/or joint venturer of the other. (Complaint, ¶ 5.) The undisputed evidence presented by Plaintiff supports this allegation. And, regardles...

Excerpt: ...g, upon a motion or in its discretion. Irrelevant matters are those not essential to the statement of a claim or defense or not pertinent to or supported by an otherwise sufficient claim or defense and demands for relief not supported by the allegations. (Code Civ. Proc. § 431.10.) Punitive Damages. Civil Code section 3294, subdivision (a) provides that punitive damages are only available in actions not arising from breach of contract if is “p...

Excerpt: ...issue of material fact on that element or defense. C.C.P. §437c(p)(2). The elements of a cause of action for negligence are duty, breach, causation and damages. Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662. In general, an action or inaction by a defendant must be a proximate or legal cause of the plaintiff's injury, in order for the defendant to be held liable. Valdez v. J.D. Diffenbaugh Co. (1975) 51 Cal.App.3d 494, 509. Courts apply a �...

Excerpt: ...(Code Civ. Proc. § 338(d).) Causes of action for breach of an oral agreement must be commenced within two years. (Code Civ. Proc. § 339(1).) The applicable statute of limitations for a cause of action for declaratory relief depends on the right or obligation sought to be enforced and is the same as would apply to actions for damages or injunction. (Howard Jarvis Taxpayers Ass'n v. City of La Habra (2001) 25 Cal.4th 809, 821; Ginsberg v. Gamson ...

Excerpt: ...aintiff's complaint identifies causes of action against the State for negligence, intentional tort and professional malpractice. (Complaint, par. 10.) On the face of the complaint, Plaintiff also checked the box “other” and typed in the words “wrongful assement [sic].” Other than attaching letters from 2018 regarding a 2014 tax assessment, Plaintiff makes no factual allegations at all. Significantly, Plaintiff does not allege compliance w...

Excerpt: ...de Civ. Proc. § 512.060(a).) Because Defendant has no interest in the property, the requirement of Plaintiff's undertaking is waived. (Code Civ. Proc. § 515.010(b).) Should Defendant wish to prevent Plaintiff from taking possession of the property, it may file with the court an undertaking in the amount of $11,345.51 to cover potential costs and damages that may be sustained as a result of Plaintiff's failure to gain possession. (Code Civ. Proc...

Excerpt: ...vil Procedure section 430.30, subdivision (a). Defendants request judicial notice of Deed of Trust 200500094746, recorded in Solano County on June 27, 2005, Substitution of Trustee 201800020648, recorded in Solano County on March 26, 2018, and Notice of Default 201800022079, recorded in Solano County on March 18, 2018. The court takes judicial notice of the existence and legal significance of these recorded documents as facts that cannot be reaso...

Excerpt: ...nts, and bank statements. Plaintiff has failed to produce any such documents or state that any such documents do not exist. As to number 30, Plaintiff must state what documents, if any, she submitted to Medi- Cal. If no other documents aside from profit and loss statements were ever provided to Medi-Cal, Plaintiff must so state. Plaintiff shall provide such responses and responsive documents, without objections, by May 4, 2020. Defendants are awa...

Excerpt: ...vantaged due to the court's prior notice of continuation, including the failure to file any necessary pleading during the period of emergency operations, in the event the parties are unable to appear, the hearing is continued to June 4, 2020. The court will provide notice and will repost its tentative ruling on June 3, 2020. Due to the length of this tentative ruling and the number of matters to be heard, a separate Zoom appointment will be email...

Excerpt: ... this judgment since 2010 when his wages were first garnished. Defendant was also on notice of the 2018 renewal of the judgment. Defendant fails to explain the unreasonable delay in seeking relief from the default. Due to the COVID‐19 emergency and orders to shelter in place, the court previously announced the intent to continue all civil matters through May 1, 2020. To ensure that no party has been disadvantaged due to this prior notice of con...

Excerpt: ... this judgment since 2010 when his wages were first garnished. Defendant was also on notice of the 2018 renewal of the judgment. Defendant fails to explain the unreasonable delay in seeking relief from the default. Due to the COVID‐19 emergency and orders to shelter in place, the court previously announced the intent to continue all civil matters through May 1, 2020. To ensure that no party has been disadvantaged due to this prior notice of con...

Excerpt: ... due by July 18, 2018. No responses were served and no extension was requested. On August 30, 2018, Defendant's counsel sent a meet‐and‐confer letter to Plaintiff's counsel requesting responses within 5 days. Again, no responses were served and no extension was requested. On March 12, 2019, Defendant's counsel sent correspondence to Plaintiff's counsel, again seeking responses to discovery requests. On March 20, 2019, Defendant's counsel forw...

Excerpt: ... 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 the nature, source and extent” of the plaintiff's claim. (Doheny Park Te...

Excerpt: ... in which she could cure this defect, the court provided Plaintiff with an opportunity to amend to specifically plead facts as to why the action is not barred by the statute of limitations. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) Plaintiff's FAC adds two paragraphs of allegations to address why her case is not time‐barred. Plaintiff alleges that: 1) Defendant requested information on the incident, notified Plaintiff that the ma...

Excerpt: ...filed in Solano County Superior Court on June 6, 2018, on behalf of Plaintiff JILLIAN WILSON in connection with medical care and treatment she received from Defendants KAISER FOUNDATION HOSPITALS et al. (collectively “KAISER”). At the time the suit was filed, an arbitration had already been initiated by Plaintiff on her claims of professional negligence or medical malpractice following submission of Plaintiff's written demand for arbitration ...

Excerpt: ... for the conduct of Defendant Heinemeyer. (See, Complaint, ¶¶ 4, 17‐20.) Consequently, Plaintiff was required to comply with the claims presentation requirements of the Tort Claims Act by pursuing written claims with the respective employing public entities for these public employees. (Gov. Code §§ 950.2, 950.6(a); Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374; People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 939; Julia...

Excerpt: ...fer Receipt for this case, and the fact that HORNE is a marriage and family therapist licensed by the California Board of Behavioral Sciences with license number 46660. The court does not need to take judicial notice of the two documents because they are already part of the record of this action. The court takes judicial notice of the fact of HORNE's license from a state licensing board as an official act of the executive department of the state ...

Excerpt: ...s the causes of action for “all defendants” which involve different contracts with different defendants and different alleged forms of breaches into a single cause of action for breach of contract. By incorporating by reference, using generic terms, and by failing to allege with specificity, Plaintiff's complaint is unnecessarily difficult to follow. However, a special demurrer for uncertainty is not intended to reach the failure to incorpora...

Excerpt: ...rder or for the renewal of a previous motion may be considered by any judge or court unless it is made according to this section”]. To renew a motion such as the earlier motion filed here by Defendant seeking relief from Judge Daniels' May order deeming admissions admitted, a party must file a motion per C.C.P. §1008(b), which sets forth new or different facts, circumstances or law that would justify a different result, and which identifies th...

Excerpt: ...37c(p)(2); Lyle v. Warner Bros. Television Prods. (2006) 38 Cal.4th 264, 274.) The undisputed material facts presented by Defendant fail to establish that the speed bump was not a dangerous condition on the property. That Plaintiff Michael Midkiff did not personally observe any liquid or other substance on the speed bump at the time of the accident does not establish that there were no substances or that the speed bump did not otherwise present a...

Excerpt: ...use of action); failure to accommodate disability (5th cause of action); failure to engage in the interactive process (6th cause of action); retaliation (7th cause of action); and failure to prevent discrimination and retaliation in the workplace (8th cause of action). Because California's FEHA law is modeled on federal law (Title VII), California courts consider federal Title VII cases when applying FEHA, in discrimination and retaliation claims...

Excerpt: ...ranted. Defendant's claimed costs for subpoenas for medical, long term care, and school records are an “investigation expense” that cannot be shifted. (Code of Civ. Proc. § 1033.5, subd. (b)(2).) Plaintiffs motion to tax costs for filing fees and courier service is granted and denied. As the prevailing party, Defendant is entitled to recover filing fees. However, the numbers cited by Defendant are inconsistent with the schedule of filing fee...

Excerpt: ...nce, fourth cause of action for violation of the Ralph Act, and fifth cause of action for violation of the Bane Act are overruled. Plaintiffs have adequately alleged facts establishing that Defendant Forsythe owed them a duty not to create an unreasonable risk of injury to them and breached that duty by informing Defendant Snyder he would look the other way if Snyder drove over Plaintiffs' signs. (See, Lugtu v. Cal. Highway Patrol (2001) 26 Cal.4...

Excerpt: ... covering the same subject matter as is involved in a California action, the California court has the discretion but not the obligation to stay the state court action. (Farmland Irrigation Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215.) In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party and avoiding unseemly conflicts with courts of other jurisdictions...

Excerpt: ...n made in response to a request for admission if it obtains leave of court, which is only to be granted if the court determines that the admission was the result of mistake, inadvertence, or excusable neglect and the party that obtained the admission will not be substantially prejudiced. This provision applies to allow withdrawal of admissions that were deemed admitted as a penalty for failure to respond to propounded discovery. (Wilcox v. Birtwh...

Excerpt: ...eatedly restated 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.) It is an abuse of discretion to deny amendment where amendment does not prejudice the opposing party. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) DARREN asks to replace his form answer denying each of Plain...

Excerpt: ...tive damages requires both a showing that the defendant acted with a willful and conscious disregard of the rights or safety of others and that the conduct was despicable. (Civ. Code § 3294, subds. (a), (c)(1); Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 332; Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1161; Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) Conscious disregard is a “highly culpable state of mind” tha...

Excerpt: ...rer: whether a party is entitled to judgment as a matter of law. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205.) In considering such a motion the court may properly accept facts it may judicially notice or that cannot reasonably be controverted. (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.) “The motion normally lies only for defects fully disclosed on the face of the pleading under attac...

Excerpt: ... not taken further action to perfect notice to the court of any stay triggered by a bankruptcy. On October 15, 2019, Defendant represented to the court that Plaintiff had filed for bankruptcy on October 11, 2019, and therefore this suit was stayed. No evidence had been presented to the court of any bankruptcy filing. Plaintiff acknowledges filing for bankruptcy, but represents that that bankruptcy filing was dismissed December 12, 2019, and that ...

Excerpt: ... summary judgment” filed on February 22, 2019 in case number 2:17‐cv‐01313‐WBS‐DB, provided as Exhibit A of Defendant's request for judicial notice. In the federal action filed by Plaintiff against Defendant, the district court granted summary judgment in favor of Defendant. (RJN, Exh. A, p. 15.) In making this determination, the district court concluded that Defendant Tan arrested Plaintiff “pursuant to a reasonable belief that there...

Excerpt: ...me Sav. Of Am. (1997) 59 Cal.App.4th 1192, 1199; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689‐690.) Defendant Horne is awarded a monetary sanction against Plaintiff in the amount of $525 for reasonable attorneys' fees incurred in opposing this motion. A motion for reconsideration of a discovery order is subject to sanction for misuse of the discovery process. (Mattco Forge v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1440‐1441.) Defe...

Excerpt: ...EW's (“JOE”) demurrers to Plaintiff's earlier action on these facts. The court takes judicial notice of this document as a record of a court of this state. (Ev. Code § 452, subd. (d).) Fifth Cause of Action: Interference with Contractual Relations. The elements of a cause of action for intentional interference with contractual relations are: (1) a contractual relationship between a plaintiff and a third party, (2) defendant's knowledge of th...

Excerpt: ...tober 25, 2019. The motion was filed November 15, 2019. The motion should have been finalized at the conclusion of the submission of evidence and/or raised prior to the court taking this matter under submission effective October 25, 2019. Second, Plaintiff did not disclose this claimed injury, damages or theory of recovery through discovery. Although the city was aware of the code enforcement citation that was apparently produced through discover...

Excerpt: ...to the Complaint based largely on the same arguments, but provided Plaintiff the opportunity to amend. In the interim, Plaintiff filed and served a First Amended Complaint, but after meeting and conferring with Defendants about alleged defects, voluntarily filed and served a Second Amended Complaint. Given the significant delay and many opportunities to amend, where the previously identified defects are repeated without correction, no further lea...

Excerpt: ...ranted. Defendant's claimed costs for subpoenas for medical, long term care, and school records are an “investigation expense” that cannot be shifted. (Code of Civ. Proc. § 1033.5, subd. (b)(2).) Plaintiffs motion to tax costs for filing fees and courier service is granted and denied. As the prevailing party, Defendant is entitled to recover filing fees. However, the numbers cited by Defendant are inconsistent with the schedule of filing fee...

Excerpt: ...t (1977) 73 Cal.App.3d 864, 872; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The court had previously considered Plaintiffs' allegation that Defendant had made vague and unspecified verbal threats of ...

Excerpt: ...ough 13 of the declarations of Marlon and Febes Taasan and the transcript of the deposition of Hodges are overruled. Defendant Veriprise Processing Solutions, LLC's motion for summary judgment, based on the privilege pursuant to Civil Code section 2924(d), is denied. While it is true that Plaintiffs' allegation against Defendant consists solely of the issuance of statutory notices required by the nonjudicial foreclosure statutes (FAC, ¶ 24), Def...

Excerpt: ...ough 13 of the declarations of Marlon and Febes Taasan and the transcript of the deposition of Hodges are overruled. Defendant Veriprise Processing Solutions, LLC's motion for summary judgment, based on the privilege pursuant to Civil Code section 2924(d), is denied. While it is true that Plaintiffs' allegation against Defendant consists solely of the issuance of statutory notices required by the nonjudicial foreclosure statutes (FAC, ¶ 24), Def...

Excerpt: ... responding party to assert objections, including those based on privilege or work product. C.C.P. §2030.290(a) [interrogatories]; §2031.300(a) [requests for production]; §2033.280(a) [requests for admissions]. To the extent that objections are raised in “promptly” filed protective order motion, those raised objections may be preserved. However, if the protective order motion is denied, with those objections found invalid, in the absence o...

Excerpt: ...r Court (1975) 49 Cal.App.3d 22, 29.) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “[T]he act of operating a motor vehicle while intoxicated may constitute an act of ‘malice' under section 3294 if performed under circumstances which disclose a conscious disregard...

Excerpt: ...r Court (1975) 49 Cal.App.3d 22, 29.) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “[T]he act of operating a motor vehicle while intoxicated may constitute an act of ‘malice' under section 3294 if performed under circumstances which disclose a conscious disregard...

Excerpt: ...ns interstate commerce between Nevada limited liability company VEROS and California individual person LOPEZ. However, the court rules on this petition using the procedures of Code of Civil Procedure sections 1280 et seq. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 410 (Rosenthal).) California's procedural rules for petitions to compel arbitration are neutral between federal and state claims for arbitration enfor...

Excerpt: ...iation and informal resolution” that amounted to a sufficient “attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294; Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) Plaintiffs did not attempt to discuss the merits of any of Defendant's specific objections to any of Plaintiffs discovery requests, but simply took exception to the service of responses...

Excerpt: ...ns interstate commerce between Nevada limited liability company VEROS and California individual person LOPEZ. However, the court rules on this petition using the procedures of Code of Civil Procedure sections 1280 et seq. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 410 (Rosenthal).) California's procedural rules for petitions to compel arbitration are neutral between federal and state claims for arbitration enfor...

Excerpt: ...iation and informal resolution” that amounted to a sufficient “attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294; Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) Plaintiffs did not attempt to discuss the merits of any of Defendant's specific objections to any of Plaintiffs discovery requests, but simply took exception to the service of responses...