Excerpt: ...nant. Having tried highly complex cases that have been given statutory priority, the court genuinely appreciates the concerns expressed by Defendants NEW IMAGE 3 LANDSCAPE CO. and CITY OF FAIRFIELD regarding the intrinsic difficulties with preparing a serious matter for jury trial within 120 days. While the court appreciates the concerns, the concerns are a matter for the Legislature, not the Court. The only barrier at this juncture to granting s...

Excerpt: ...w Cause and Motion to Strike filed by COMPASS BANK, the answers filed on behalf of suspended corporations FAIRFIELD IMPORTS TWO, LLC; VALLEJO IMPORTS, LLC and VALLEJO CJD, LLC. were withdrawn. The Court granted Plaintiff's motion for summary judgment on February 26, 2021 as to Defendant FAIRFIELD CJD, LP and Guarantor Defendant HASSANALLY. In that ruling, Plaintiff was awarded $18,286,232.90 in principal, $1,917,480.29 in interest as of July 24, ...

Excerpt: ...action of a purchase agreement that contains items for which Defendant may not be liable. (See, UMF 1‐4.) Additionally, although Plaintiff purports to direct this second summary adjudication motion against the second cause of action for violation of Civil Code section 1793.2(b), the damages for a violation of that subdivision are limited to “damages caused by the delay in repairing a nonconformity that did not substantially impair the car's u...

Excerpt: ...ck 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 prior to the filing of this action through the present.” Plaintiff seeks certification of the following subclass: “All hourly truck loaders/unloaders and delivery drivers employed by Defendants to work at the FedEx Ground Package branch located at 5191 Fe...

Excerpt: ...r or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. The motion is untimely. The Request for Entry of Default was filed August 20, 2020. The Default Judgment was entered September 11, 2020. The instant motion was filed August 31, 2021, almost one year after the ent...

Excerpt: ...'s Motion to Deem Matters Admitted. Defendant MIKE TALKINGTON's unopposed motion to deem facts admitted is granted. Plaintiff MIKE LOWRIE TRANSPORT, INC., shall be deemed to have admitted all propounded Requests for Admission (Set Two). Defendant MIKE TALKINGTON's Motion to Compel Responses to Form Interrogatories (General) The motion to compel Plaintiff MIKE LOWRIE TRANSPORT, INC. to respond to written responses to form interrogatories filed by ...

Excerpt: ...emurrer based on uncertainty is disfavored, unless if renders the pleading impossible to know what charge is to be answered, or to determine how to investigate the charge through discovery. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §§7:85 and 7:86, p. 7(I)‐41. 5 The court does not find the 2nd cause of action here sufficiently “uncertain” to justify sustaining CHURCH's demurrer on that basis. The court sustains CHURCH's...

Excerpt: ...ion communications between the parties and putative class members to ensure fairness in class actions. (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 307‐308.) The court has broad authority to make appropriate orders 2 that protect the integrity of the class and the administration of justice. (Id. at p. 328, citing O'Connor v. Uber Technologies, Inc. (N.D. Cal., May 1, 2014, No. C‐13‐3826 EMC) 2014 U.S.Dist. LEXIS 61066 at ...

Excerpt: ...nd for sanctions; and a motion for order deeming Requests for Admission served on Defendant Dwight Davenport admitted, and for sanctions. Defendant Dwight Davenport failed to file oppositions to either motion. Plaintiff's motion to compel responses to Requests For Production Set No. 1 is granted. By failing to timely serve responses to this discovery request and produce documents, Defendant Dwight Davenport has waived all objections. (Code Civ. P...

Excerpt: ...to reexamine their positions, and to narrow their disputes to the “irreducible minimum” before asking the court to resolve them. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §8:1159; See also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281, quoting Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 [“'informal resolution' of discovery disputes ‘entails something more than bickering with (opposing counsel).' Rather,...

Excerpt: ...on may have been delayed to the point in time when Plaintiff knew, or reasonably should have known, that CALIBER would not grant him successor in interest status and/or a loan modification. (Fox v. Ethicon Endo‐Surgery, Inc. (2005) 35 Cal.4th 797, 806‐807.) Plaintiff's complaint alleged that CALIBER continued to encourage him to make the loan payments and continued to ask him to submit documents to evaluate his request for successor in intere...

Excerpt: ...se with MedMark, knew that Plaintiff is an employee of MedMark, and, as evidenced by their tender in 2019, was well aware of the role of Medmark in this litigation. At the case management conference (“CMC”) on May 7, 2021, the court was informed by one or more parties that the reason the mediation did not take place as previously agreed and ordered was that Destan Investments unilaterally pulled out of the mediation at the last minute citing ...

Excerpt: ... relevant to the pending petition to compel arbitration. Opening up discovery to the potential class makes no sense and imposes the costs of significant discovery on Defendant in a case in which Plaintiff may not be able to serve as a representative in one or more aspects of this case and in which a petition to compel arbitration is pending. Further, without a prior court order and/or agreement by Plaintiff that engaging in this expanded scope of...

Excerpt: ... deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult. (Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1519; Kennemur v State of California citing Easterby v. Clark (2009) 171 Cal.App.4th 772, 780; Boston v Penny Lane Cts., Inc. (2009) 170 Cal.App.4th 936, 952.) The parties agreed, an...

Excerpt: ...endant shall notify the court and opposing party by October 2, 2021 at 10 a.m. (As this case is scheduled with statutory priority to commence October 6, 2021, the parties have informed the court they will be working through the weekend.) Motion for Summary Judgment on Case Specific Grounds Defendant's motion for summary judgment on case specific grounds or, in the alternative, summary adjudication, is continued to October 6, 2021 at 10:30. Defend...

Excerpt: ...ter 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 20400 et seq., which states that parking tickets “shall be governed by the civil administrative procedures set forth in this article.” Division 17, Chapter 1, Article 3 of the Vehicle Co...

Excerpt: ...onduct and Plaintiffs' damages from experiencing childhood leukemia. (CCP, § 598.) In reaching this decision, the court understands that this case is distinct from cases involving non‐Hodgkins lymphoma (“NHL”) which has been definitively linked by the IARC to the substantial exposure to glyphosate based upon studies. Unlike NHL, Plaintiff's expert (a member of the IARC) testified that IARC has not linked ALL to exposure to glyphosate in ei...

Excerpt: ...'s Motion to Deem Matters Admitted. Defendant MIKE TALKINGTON's unopposed motion to deem facts admitted is granted. Plaintiff MIKE LOWRIE TRANSPORT, INC., shall be deemed to have admitted all propounded Requests for Admission (Set Two). Defendant MIKE TALKINGTON's Motion to Compel Responses to Form Interrogatories (General) The motion to compel Plaintiff MIKE LOWRIE TRANSPORT, INC. to respond to written responses to form interrogatories filed by ...

Excerpt: ...ritten settlement agreement on March 16, 2017 that provided that judgment for $11,320.00 would not be entered against Mr. Garza if he paid to Bank of America a minimum of $75.00 monthly from March 20, 2017 through August 20, 2018 followed by a minimum of $150.00 from September 20, 2018 until the balance of $11,320.00 was paid in full. The agreement further provided that in the event of default that Bank of America could move for a judgment for wh...

Excerpt: ..., Williams v. State of California, under Evidence Code section 452, subdivision (d) as records of the court. Claims Act Compliance. Plaintiff cannot bring a tort case against Defendant, a public employee acting in the course and scope of her employment at the time of the underlying incident, unless Plaintiff shows she properly presented a written administrative claim for her injuries to Defendant's employing public agency (the State of California...

Excerpt: ...I HATCH‐SMITH and filed June 14, 2021. The BIANCOS' second motion is to be awarded attorneys' fees and costs incurred in their partition action against PATTI E. HATCH‐SMITH (“HATCHSMITH”). Their partition action was consolidated with related cases concerning title to the property at issue (the “Property”) and monies owed to the BIANCOS for work performed. Attorneys' Fees under Code Civ. Proc., § 874.010. Code of Civil Procedure secti...

Excerpt: ...e of Civil Procedure section 2016.040 requires a declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion” to compel. The court finds Plaintiffs' counsel's declaration accompanying the motion to compel sufficient to show reasonable and good faith meet and confer efforts. (Declaration of Kevin R. Elliott at ¶¶ 8‐9, 11.) Requests for Admissions. Requests for Admissions #4‐5 r...

Excerpt: ... 119, 124, 125, 126 and 128; and denied as to interrogatories 112, 113, 116, 118, 127, 131, and 132. Plaintiffs' motion to compel further responses to Requests for Production, Set Two is granted as to requests 60, 63 and 64; and denied as to requests 54, 55 and 62. Plaintiff's counsel here identified no further meet and confer effort after Defendant filed amended responses to some of the discovery at issue in Plaintiff's motions (Special Interrog...

Excerpt: ...Communications preparatory to, or in anticipation of litigation, are protected if they concern the subject of the dispute “and [are] made in anticipation of litigation contemplated in good faith and under serious consideration”. (People ex rel. Fire Ins. Exch. v. Anapol (2012) 211 Cal.App.4th 809, 824.) Defendant presents evidence that the claim submitted to Plaintiff's surety was either “a necessary prerequisite to expected litigation or w...

Excerpt: ...r 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 #1‐26, 29‐43, and 45 are overruled. The parties' remaining objections are deemed immaterial to the disposition of the motion. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an elem...

Excerpt: ...ctivities of daily living and cannot Page 3 of 3 live alone. (Complaint at ¶ 18.) Plaintiff requires constant monitoring due to “severe Alzheimer's.” (Complaint at ¶ 20.) Plaintiff suffers from “dementia.” (Complaint at ¶ 22.) The complaint states that Vincent Hackett brings the action as Plaintiff's attorney in fact. Mr. Hackett, as Plaintiff's attorney in fact but not her guardian ad litem, does not have the ability to bring an actio...

Excerpt: ...laintiffs' survival causes of action against Defendant were raised but not timely brought to trial, and Defendant has not requested judicial notice of any matter establishing that the survival causes of action are not in conformity with the laws of the state, a court rule, or an order of the court. While Defendant attempts to present as an exhibit a copy of a 2005 complaint filed with the Superior Court of San Francisco by the decedent, the exhib...

Excerpt: ...ng further meet and confer. During the July 9, 2021, hearing, Mr. Amin objected to the Receiver and GlassRatner being paid $172,000 in aggregate fees in the BMO matter. The Receiver and Mr. Amin were directed to further meet and confer and the Receiver to provide Mr. Amin with supporting documentation for the fees incurred. The court ordered that following meet and confer if specific objections to the fees persisted, HASSANALLY was required to su...

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...