Excerpt: ...nd agreement requirements of the CITY OF BENICIA (“CITY”), by successfully obtaining an encroachment permit and entering into an encroachment agreement with CITY [UMFs 1‐18 and evidence cited in support thereof]. Defendant also failed under Benicia Municipal Code §1.10.040 to timely file an administrative challenge of either of the administrative citations issued against him [UMFs 58 and 64, and evidence cited in support thereof]. Summary ...

Excerpt: ... instant petition) was filed February 1, 2021, 193 days after July 23, 2020, when DAYTON was mailed the challenged final administrative decisions on two parking citations. Review under Code of Civil Procedure section 1094.5 is not available for parking citations. Those are handled entirely under Vehicle Code section 40200 et seq., which states that parking tickets “shall be governed by the civil administrative procedures set forth in this artic...

Excerpt: ... the San Diego County summons in this case and the 2AC as records of a court of the United States under Evidence Code section 452, subdivision (d). The court declines to take judicial notice of the proffered purported copy of the deed of trust because it does not appear to be a recorded document; the space marked for recorder's use is blank. Plaintiff's Identity. A trust, not being a legal “person,” cannot maintain an action except through it...

Excerpt: ...ity discrimination, (5) retaliation, (6) retaliation under the Family and Medical Leave Act (the “FMLA”) and California Family Rights Act (the “CFRA”), and (7) wrongful termination. Defendant alternatively and in addition moves for summary adjudication on the issue of its liability for punitive damages. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of act...

Excerpt: ...t reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. [Khoury v. Maly's of Calif., Inc. (1993) 14 CA4th 612, 616, 17 CR2d 708, 710 (citing text); A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 CA5th 677, 695, 251 CR3d 423, 439] Comment: Otherwise, judges usually make short shrift of demurrers for uncertainty. They expect counsel to clear up any ambiguities through disco...

Excerpt: ...uest for Judicial Notice. The court takes judicial notice of four plea agreements entered in federal cases between the United States government and Jeffrey Carpoff, Paulette Carpoff, Ronald Roach, and Alan Hansen. (Evid. Code, §452(d).) Specific Jurisdiction. California courts may exercise personal jurisdiction “on any basis not inconsistent with the Constitution of this state or of the United States.” (Code Civ. Proc., § 410.10.) The exerc...

Excerpt: ...ENTIC FAIRFIELD LLC TENTATIVE RULING A preliminary question posed by the filing of these demurrers is whether a party named as a “real party in interest”, but not a “respondent” or “defendant”, and against whom no causes of action are clearly identified, and no charging allegations of wrongdoing made specific to that party, is one who can challenge the causes of action in the pleading by way of demurrer. The term “real party in inte...

Excerpt: ...ing is so produced, the testimony of the witness concerning such matter shall be stricken.” Here, a colossal series of delays occurred. First, the deposition, which was being taken remotely via Zoom, did not start at the appointed time although defense counsel and court reporter were ready and waiting. Thirteen minutes after the deposition was to begin, Hawkins and his attorney appeared on Zoom. Hawkins was unprepared to review documents remote...

Excerpt: ...” if the filing of the petition then causes the agency to produce the responsive documents, before the petition is ruled upon by the court. Sukumar v. City of San Diego (2017) 14 Cal.App.5th 451, 463‐464. In the present case, Respondent CITY OF FAIRFIELD (“CITY”) did produce some responsive documents, at various times, all after the filing of this writ petition in September 2018. The total number of pages of these later‐produced documen...

Excerpt: ...OR LIVING, ET AL. Case No. FCS057259 Defendant's Petition to Compel Arbitration; TENTATIVE RULING Petition to Compel Arbitration Defendant's petition to compel arbitration is granted. The relevant issue is not whether Plaintiff's daughter, Sandra Aguilar, was authorized to admit Plaintiff to Defendant's residential care facility, but whether Aguilar was authorized to agree to arbitrate disputes. (Theresa D. v. MBK Senior Living LLC (2021) 73 Cal....

Excerpt: ...hy leave is proper, when facts supporting amendment were discovered, and why leave was not requested earlier. (Cal. Rules of Court, rule 3.1324(b).) Plaintiff does not include a declaration stating when he discovered the facts supporting any of his new allegations, particularly as to the new allegations against DUNCAN and KADOYA, and why those facts could not have been discovered and alleged earlier. Further, Plaintiff's government claim as prese...

Excerpt: ... court need only rule on those evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) Plaintiff's objections 1 through 6 to the Declaration of Kirsten White in Support of Defendant's Motion for Summary Judgment (White) are overruled. Ms. White establishes a foundation for her expertise in relevant matters. Plaintiff's objection 18 to her deposition testimony at page 41, line 23 to pa...

Excerpt: ...ies outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. Page 3 of 3 It does not suffice to include within the settlement agreement a stipulation...

Excerpt: ...nd taken. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §7:292. Discovery admissions cannot be considered on a motion for judgment on the pleadings. No extrinsic evidence: The motion normally lies only for defects fully disclosed on the face of the pleading under attack or by matters of which judicial notice may be taken. Declarations or other extrinsic matters are improper. Therefore, the judge hearing the motion cannot consider ...

Excerpt: ...ar either on the face of the pleadings or upon facts of which the court may take judicial notice. C.C.P. § 438(d); see California Evidence Code § 452. In general, where an answer totally fails to deny a material allegation, the allegation is treated as a binding admission. 5 Witkin, California Procedure (6th ed. 2021) Pleading, § 1090, p. 522. The same is true if the answer contains a proper denial, but the denial is directed to an allegation ...

Excerpt: ...wing six exhibits: (A) a New York Times article dated April 27, 2020; (B‐C) two California Public Records Act requests Petitioner has made concerning the set of land use approvals known as the “Fairview at Northgate Project” (the “Project”); (D) Respondent CITY OF VALLEJO's (“VALLEJO”) response to Exhibit B; (E) a proposed deed restriction; and (F) the unredacted version of a June 9, 2020 letter sent to the Vallejo City Counsel. A r...

Excerpt: ...state estate. That petition was assigned case number FPR048670. The petition identified the home as an asset of the estate, and in addition to Plaintiff also identified two adult sisters as potential heirs. The probate case was dismissed by the court in January, 2019, after continued failure of the petitioner to perfect defects. Plaintiff's opposition contends that he has plead the existence of damages and that based upon his reliance that he wou...

Excerpt: ...vidence. In ruling on a motion for summary adjudication the court need only rule on those evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) Moving Defendants' objections to Plaintiff's separate statement of undisputed facts on the basis of materiality and relevance are overruled. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot est...

Excerpt: ... driven by Defendant Bartley. (Complaint, ¶¶ 3‐5, 7, 11‐13, 15; Amendment to Complaint.) Negligence may be alleged in general terms. (Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795; Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 421; Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 154.) “[A]fter what was done has been stated, it is sufficient to allege that it was negligently done, without stating the particu...

Excerpt: ...he court may take judicial notice. C.C.P. § 438(d); see California Evidence Code § 452. In his answer, Defendant denied paragraphs 5, 7, 8, 11, 12, 14 of Plaintiff's complaint based on lack of information or belief. Those are the operative paragraphs alleging the elements of common counts; an unpaid debt that a defendant owes to plaintiff. 4 Witkin, California Procedure (6th ed. 2021) Pleading, § 565, p. 654. Therefore, DEFENDANT has specifica...

Excerpt: ...ither on the face of the pleadings or upon facts of which the court may take judicial notice. C.C.P. § 438(d); see California Evidence Code § 452. Other extrinsic evidence, such as discovery admissions controverting the pleadings, cannot be considered on a motion for judgment on the pleadings. Weil & Brown, Civil Procedure Before Trial § 7:322, p. 7(I)‐92. PLAINTIFF only relies on the discovery admissions in this case to argue that there are...

Excerpt: ...Court on December 17, 2019. (Complaint, par. 1). Plaintiff clearly had notice of the potential joint responsibility of the Superior Court as a potential owner of the sidewalk given that she expressly plead that she was leaving the court building when she tripped “directly in front of the Solano County Superior Court.” (Complaint, par. 1). Government Code, section 915(c) clearly specifies the manner in which a claim against a superior court sh...

Excerpt: ...022, which was expressly stipulated to by the parties. The untimely opposition is stricken. 3 Parties to appear to discuss procedural aspects of this case including the stipulation to amend the complaint discussed on the record on April 23, 2021. This case was returned on remittitur after the trial court granted summary judgment. However, the court understands that the causes of action that were returned by the appellate court were solely a cause...

Excerpt: ...oversy and that a party to the agreement refuses to arbitrate. (Code Civ. Proc., § 1281.2.) In ruling on a petition to compel arbitration, the trial court shall order parties to arbitrate if it determines that a valid agreement to arbitrate the controversy exists by utilizing principles of California contract law. (Luxor Cabs, Inc. v. Applied Underwriters Captive Risk Assurance Co. (2018) 30 Cal.App.5th 970, 977.) Though California and federal l...

Excerpt: ...dants' motion to strike punitive damages as to minor defendant CHARLES THOMAS PAUL is denied. A motion to strike challenges pleading issues that are usually not addressable on a demurrer, including “irrelevant matter.” (Weil & Brown, Civil Procedure Before Trial, §§ 7:179, 7:182, pp. 7(1)‐76, 7(1)‐77.) Irrelevant matter includes demands for judgment requesting relief not supported by the allegations of the complaint. (CCP § 431.10) A m...

Excerpt: ...the court to have been reasonably incurred by the buyer in connection with the prosecution of his action. (Civ. Code, § 1794, subd. (d).) When awarding these required fees a court must make an initial determination of the actual time expended and then ascertain whether under all the circumstances of the case the amount of actual time expended and the charge for the time are reasonable. (Hanna v. MercedesBenz USA, LLC (2019) 36 Cal.App.5th 493, 5...

Excerpt: ...ative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction, or showed ‘prejudicial abuse of discretion'”].) Nothing in the administrative record lodged with the court suggests that Petitioner was not given adequate notice of the pendency of the action or that he was denied an adequate opportunity to present his objections. (Doe v. Regents of Univ. of Cal. (2016) 5 Cal.App.5th 1055, 1077.) The court notes that...

Excerpt: ...igation is not absolute” and counsel has a duty to “not withdraw from employment until [s]he has taken reasonable steps to avoid foreseeable prejudice to the right of [her] client.”. (Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197.) “It [is] the duty of the trial court to see that [the client is] protected, so far as possible, from the consequences of [counsel's] improper abandonment of [her] client.” (Ibid.) At the September 20, 2021, c...

Excerpt: ...ts have not demonstrated adequate prejudice from the proposed amendment and the liberal rule of allowance must prevail. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564.) Plaintiff has agreed to submit to a subsequent deposition (Decl. of Buchanan (1/4/22), ¶ 3) and Defendants have made no showing that they are not capable of completing the additional written discovery r...

Excerpt: ...il to agree upon or advance litigation. This case was filed in 2016 and is past the deadline for discretionary dismissal for failure to prosecute. In addition, given the inability of the litigants to provide direction to counsel, the court questions the individual capacity and desire of the litigants to maintain this action. An Order to Show Cause why this case should not be dismissed and the lis pendens vacated shall issue to Plaintiffs' counsel...

Excerpt: ...of this suit and settlement negotiations. In lieu of a court‐supervised winding up, the parties agreed that Defendants JAMES and VALERIE INGLEBRIGHT would be solely responsible for winding up the corporation. Neither party made indemnification of unknown third‐party claims or unknown tax liabilities a condition of settlement. However, it was clear that Defendants JAMES and VALERIE INGLEBRIGHT assumed exclusive responsibility for winding up th...

Excerpt: ...ng, or it is withdrawn by the moving parties, the court may proceed later in this scheduled hearing to consider argument on the demurrer and writ. Otherwise, if the disqualification motion is granted, or taken under submission, the court will discuss the resetting for hearing of the demurrer and the writ. Page 3 of 4 As the tentative ruling on the disqualification motion: Moving parties identified Penal Code §1424(a)(1) as the basis for this dis...

Excerpt: ...e of action under section 1983. As to the state law claims, any claim against a public entity must be authorized by statute. Government Code section 815. Government Code section 844.6 immunizes public entities from suits based on injury to a prisoner. The only exception to this broad immunity relevant here is Government Code section 845.6, which makes public employees and entities liable for injuries to a prisoner in certain situations, including...

Excerpt: ...he court may take judicial notice. C.C.P. § 438(d); Evidence Code § 452. In his answer, Defendant denied paragraphs 5, 7, 8, 11, 12, 14 of Plaintiff's complaint based on lack of information or belief. Those are the operative paragraphs alleging the elements of common counts; an unpaid debt that a defendant owes to plaintiff. 4 Witkin, California Procedure (6th ed. 2021) Pleading, § 565, p. 654. Therefore, DEFENDANT has specifically denied, bas...

Excerpt: ...Code § 26038 which would entitle them to judgment on the causes of action1 . (Code Civ. Proc. § 437c(p)(1).) It is undisputed that in order to operate a cannabis business in the Benicia City limits, the Benicia Municipal Code requires a valid use permit. (See Benicia Municipal Code, § 17.84.040.) It is also undisputed that the defaulting defendant, EVERGREEN RELIEF, entered into a commercial lease with Defendant landowner TUTTLE FAMILY LIVING ...

Excerpt: ...anted to compel further responses to the following interrogatories: Form Interrogatories 15.1; 17.1; and Special Interrogatories 47‐ 51. The response to 15.1 thus far provided by FF PROPERTIES, LP dba FAIRFIELD PROPERTIES, LP (“FF”) did not include the names and addresses of each and every witness (some of which were referred to only in general descriptive terms), nor did it identify each and every document FF asserts support any denials of...

Excerpt: ...Defendant with a detailed meet and confer letter and that opposing counsel telephonically discussed the issues raised in the letter, it is evident that counsel did not engage in a “serious effort at negotiation 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....

Excerpt: ...he Vallejo Police Department, it is undisputed that Petitioner WHITNEY was an at‐will employee. Under the 14th Amendment, a public employee discharged for a reason which might seriously impair his or her opportunity to earn a living, or which might seriously change his or her standing or associations in the community, is entitled to a name‐clearing hearing. (Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340.) In addition to t...

Excerpt: ... personal service of the summons and complaint. However, substitute service by serving a competent member of the household and mailing the summons and complaint to the defendant at the address at which the defendant resides is also an effective form of service. Defendant acknowledges that she lived at the home in which substitute service was perfected. Other evidence also supports the existence of notice to Defendant of the judgment and renewal o...

Excerpt: ... now moves for class certification in this action against Defendants WAHOO LOGISTICS, LLC (“WAHOO”), MOTION EXPRESS (“MOEX”), and FEDEX GROUND PACKAGE SYSTEM, INC. (“FEDEX”). Plaintiff seeks certification of the following class: “All hourly truck loaders/unloaders and delivery drivers employed by Defendants to work at the FedEx Ground Package branch located at 5191 Fermi Drive, Fairfield, California during the period of four years p...

Excerpt: ...t of Corr. and Rehab. (2006) 142 Cal.App.4th 377, 386.) To be “material”, the change in work conditions must be more than merely contrary to the employee's interests or desires, but must consist of a detrimental and substantial effect on the employee's work environment. (Ibid.; Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1445.) “[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an emp...

Excerpt: ...any written document bearing the signatures of the parties or their attorneys here. Instead, she relies upon some communications between the attorneys, via telephone and e‐mail, which her counsel claims constitute a written settlement agreement. E‐mails are insufficient to meet the C.C.P. section 664.6 “signature” requirement. [A] typed name at the end of an e‐mail is not, by itself, a signature under case law. Courts have held that typ...

Excerpt: ...contention cannot support liability for negligence. As a host, ELLSWORTH is subject to immunity by statute. (Civ. Code, § 1714.) A “social host who furnishes alcoholic beverages to any person” cannot “be held legally accountable for damages suffered by that person, or for injury to the person or property of … any third person, resulting from the consumption of those beverages.” (Civ. Code § 1714(c).) An exception to this immunity exis...

Excerpt: ...he proceeding.” (Mandell v. Superior Court (1977) 67 Cal.App.3d 1, 4.) “The right of counsel to withdraw from pending litigation is not absolute” and counsel has a duty to “not withdraw from employment until [s]he has taken reasonable steps to avoid foreseeable prejudice to the right of [her] client.”. (Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197.) “It [is] the duty of the trial court to see that [the client is] protected, so far as...

Excerpt: ... of her cell phone records or compel her cell phone carrier, Verizon, to release the records pursuant to a subpoena duces tecum. The motion is granted with a time limitation. This case arises from a motor vehicle accident which resulted in criminal charges against Rowley and two civil cases, now consolidated. Moving parties seek Rowley's cell phone records for a brief period of time before and after the moment of the accident. Said records cannot...

Excerpt: ...hin 2 years, where summons does not result in actual 2 notice]; Civil Code §1788.61(a)(3) [6 years on an action by a “debt buyer” is an outer limitation]; C.C.P. §473(d) [held by courts to impose a 2 year deadline from entry of default judgment, if judgment is valid on its face, but is void for improper service (Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §§5:491 and 5:492, p. 5‐141). Defendant's motion here was filed i...

Excerpt: ...recoverable in a Song‐Beverly Consumer Warranty Act (“lemon law”) action, such as the one before the court, unless they were reasonable in amount and reasonably necessary to the conduct of the litigation. (Code Civ. Proc., § 1033.5, subds. (a)(3), (a)(10), (c)(5) [“necessary” deposition costs and attorney's fees, inter alia, are “costs”]; Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816 [lemon law attorney's f...

Excerpt: ...t to meet and confer prior to filing of the motion. The Declaration of Yuki Cruse in Support of Motion shows that WINCO made adequate efforts to meet and confer prior to filing this motion. Merits of the Motion. Code of Civil Procedure section 2017.020, subdivision (a) allows a court to limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information s...

Excerpt: ...d Amended Complaint to include claims through the present, and the large proposed class including 16,000 workers. While Defendants dispute liability, the difference in the potential amount versus the settlement is significant. How many employees did Six Flags have during this period of time that are not covered by the settlement? What is the potential liability for an average worker? What will an average worker actually receive? The record must e...

Excerpt: ...es if not sham allegations. Here, the Second Amended Complaint (“SAC”) now alleges that Plaintiff said at the time of the accident that she was driving 120 miles. Defendant's criticism that this allegation should have been included with the original complaint is valid, but does not render this amended allegation a sham. Plaintiff also explains that the allegation follows sworn deposition testimony given by Anthony Avanessian and the expert op...