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

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

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

Excerpt: ...5 Cal.4th 180, 192; A.F. Brown Elec. Contractor, Inc. v. Rhino Elec. Supply, Inc. (2006) 137 Cal.App.4th 1118, 1124.) Plaintiffs' conversion cause of action is based on allegations that Defendant interfered with Plaintiffs' possessory interest in “certain proprietary information” by hacking into Plaintiffs' online accounts, denying Plaintiffs access to those accounts, and deleting the information from the accounts. (Complaint, ¶¶ 16, 21‐2...

Excerpt: ...tioner 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 discretionary one. (Menefield v. Foreman (2014) 231 Cal.App.4th 211, 217‐ 218.) Petitioner concedes that Respondent did perform the ministerial duty of screening his appeal, before exercising the discretion to rej...

Excerpt: .... Malis (2002) 97 Cal.App.4th 429, 440.) It clearly appears the intent of the parties for the court to retain jurisdiction to enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6 and that Defendant GALL agreed separately to pay $500 as part of the negotiated settlement. (No settlement language is presented regarding default or interest as claimed in the moving papers.) The court also notes that it was counsel for the...

Excerpt: ...e. Plaintiff does not explain why Plaintiff alleged in the Complaint that Defendant was driving 70 miles per hour but now alleges in the First Amended Complaint that Defendant was driving 100 miles per hour at the time of the accident. The burden was on Plaintiff to justify this material change in factual allegations. If a pleader fails to explain the inconsistencies with prior pleadings the court may disregard the inconsistent allegations (Valle...

Excerpt: ...ke. Plaintiff does not explain why Plaintiff alleged in the Complaint that Defendant was driving 70 miles per hour but now alleges in the First Amended Complaint that Defendant was driving 100 miles per hour at the time of the accident. The burden was on Plaintiff to justify this material change in factual allegations. If a pleader fails to explain the inconsistencies with prior pleadings the court may disregard the inconsistent allegations (Vall...

Excerpt: ...cessary to avoid prejudice where she declares that she is eighty‐six years old and has metastatic cancer. (Declaration of Elaine Logan Mein at ¶¶ 4, 6.) Despite knowledge of the pendency of this motion and the apparent knowledge of the filing of a bond, Plaintiff EMERGENCY CONSTRUCTION SERVICES has not named the bond company as a DOE. Therefore all named parties are before the court. Further, Real Party In Interest is requesting the relief. W...

Excerpt: ...ndard. 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.) The Court assumes the truth of the allegations in the complaint, but does not assume the truth of contentions, deductions, or conclusions of law. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) The court does 3 not consider extrinsic facts ...

Excerpt: ...MES R. INGLEBRIGHT to Requests for Production Set Two; and for Sanctions TENTATIVE RULING The disputes over the 17 requests for production at issue all boil down to the question of whether a responding party may produce a group of documents and put the onus on the requesting party to find any that are responsive to a specific request, or if the responding party must identify the specific documents responsive to a specific document request. C.C.P....

Excerpt: ...or some different case. Second, the motion is not properly served upon all parties to this action including defaulting defendant Si Se Puede Autos, Inc. and Hudson Insurance Company. Service by email to Westlake is not presumptively effective given that the person who may previously have served as counsel may or may no longer be counsel of record given dismissal of the case 5 months earlier. Third, as to Westlake Financial, Westlake's unopposed m...

Excerpt: ...udgment on the pleadings as to the prayer for punitive damages in the complaint. Plaintiff RAMON REYES also calendared a motion to amend the complaint to be heard weeks later. On January 5, 2021, the court directed the parties to appear to discuss scheduling of the motions given the fact that the court intended to grant the motion for judgment on the pleadings but also intended to permit plaintiff to amend his complaint. Ultimately, the parties s...

Excerpt: ...7, 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 Song‐Beverly Act. (Com. Code § 2725(2); Mexia, 174 Cal.App.4th at 1308‐1309.) And, while a breach of an express warranty contemplates future performance such that it does not accrue until a breach is or should have been dis...

Excerpt: ...nded Complaint. The court also sustained the demurrer of Defendant THE COCA COLA COMPANY (“COCA COLA”) based upon the failure to allege sufficient facts in the First Amended Complaint to establish a relationship of joint employment. Plaintiff was afforded 20 days to amend as to COCA COLA. On December 7, 2020, Plaintiff filed the Second Amended Complaint. No proof has been filed that the Second Amended Complaint was served upon the Defendants....

Excerpt: ...nges to the non‐judicial foreclosure of real property he owned located at 1336 Crowley Lane, Fairfield, CA 94533: Dayton v. Quality Loan Service Corp. as Trustee for Bank of America Home Loans Servicing LP as Beneficiary and Bank of America, Solano County Superior Court Case No. FCS045278 Dayton v. Bank of America, as successor by merger, Solano County Superior Court Case No. FCS052246 The instant lawsuit is the third lawsuit filed by DAYTON ag...

Excerpt: ...FLINT COREY ZIDE and SARKIS SERGO KARAYAN (“Attorneys”), the attorneys who drafted and filed the collection complaint in this action. SUMERS' cross‐complaint alleged against Attorneys causes of action for violation of the Federal Debt Collection Practices Act (“FDCPA”) and California's Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”). Both the FDCPA and the Rosenthal Act are designed to protect unsophisticated consumer...

Excerpt: ...r or motion to strike. Plaintiff does not explain why Plaintiff alleged in the Complaint that Defendant was driving 70 miles per hour but now alleges in the First Amended Complaint that Defendant was driving 100 miles per hour at the time of the accident. When a party attempts to avoid the defects of a prior complaint by omitting facts that made the prior complaint defective or adding inconsistent facts, the court may take 4 judicial notice of th...

Excerpt: ... 1306.) A cause of action for breach of an implied warranty cannot 2 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 Song‐Beverly Act. (Com. Code § 2725(2); Mexia, 174 Cal.App.4th at 1308‐1309.) And, while a breach of an express warranty contemplates future performance such that it does not accrue until a breach is or should have been dis...

Excerpt: ...n violation of the Benicia Municipal Code; (2) operating a commercial cannabis operation without the appropriate state and local permits and/or licensure authorizing such business activities to be conducted; (3) occupying and/or utilizing the premises of 2995 Bayshore Road which have been altered in violation of the Building Code without the appropriate permits and inspections. The court also finds the evidence supports judgment for declaratory r...

Excerpt: ...y and Bank of America, Solano County Superior Court Case No. FCS045278 Dayton v. Bank of America, as successor by merger, Solano County Superior Court Case No. FCS052246 The instant lawsuit appears to be the third lawsuit filed by DAYTON against BANK OF AMERICA related to the foreclosure of the Crowley Lane property. FCS045278 was dismissed by DAYTON without prejudice. In FCS052246, a tentative ruling granting BANK OF AMERICA's motion for summary...

Excerpt: ...settlement must be submitted to the Labor and Workforce Development Agency simultaneously with the court. Plaintiff has shown that the settlement was simultaneously presented to the Labor and Workforce Development Agency. (Declaration of Scott L. Gordon, Exhibit 2.) The court finds the proposed distribution of the total settlement amount reasonable, including payment of $33,333 (one third of the $100,000 total amount) to counsel for attorneys' fe...

Excerpt: ...intiff shows he properly presented a written administrative claim. Defendants acknowledge that Plaintiff met his claim presentation requirements. However, Defendants argue that Plaintiff failed to timely file this state suit. This argument fails to address the tolling of the state claim due to the pendency of the federal action. (See Addison v. State of California (1978) 21 Cal.3d 313, 319‐320; Harris v. Grimes (2002) 104 Cal.App.4th 180, 189.)...

Excerpt: ...24, 32, 40), Plaintiff specifically alleged that Defendant Kaufman performed a lumbar puncture, without obtaining informed consent, that caused her injuries. (FAC, ¶¶ 26, 33.) A demurrer may be sustained when specific allegations inconsistent with general allegations render the complaint defective. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.) Plaintiff concedes that Dr. Geller is not an emergency medicine physician ...

Excerpt: ...meritorious and cause for its denial. (Cal. Rules of Court, rule 3.1113(a).) In addition, Defendant has not established the existence of a legally protected privacy interest, an objectively reasonable expectation of privacy under the circumstances, and threatened serious invasions of the interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552‐553.) A court need not balance asserted privacy interests with any countervailing interests ser...

Excerpt: ...fying what new facts or law support the renewed motion. On January 29, 2021, BMO HARRIS BANK N.A. (“BMO”) submitted a declaration which satisfies this jurisdictional requirement. During the pendency of this motion, the court raised two issues: (1) the independent authority of the insolvent corporate entities to appear through counsel and litigate issues related to assets and the existence and scope of debt given the appointment of a Receiver ...

Excerpt: ...of Receiver Pendente Lite; Preliminary Injunction (filed December 6, 2018); (3) Stipulation and Order Supplementing the Authority Granted to the Receiver Pursuant to the December 6, 2018 Order for Appointment of Receiver Pendente Lite; Preliminary Injunction (filed March 28, 2019); (4) Stipulation and Order Approving Voluntary Termination Agreement (filed May 28, 2019); (5) Complaint (filed November 8, 2018); and (6) April 17, 2019 Minute Order A...

Excerpt: ...d engaging in illegal activities.” (Complaint, ¶ 25.) A false and unprivileged publication that charges a person with crime or with having been indicted, convicted, or punished for crime constitutes slander per se and there is no need to plead or prove actual damages. (Civ. Code § 46(1); Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.) Similarly, when the defamatory meaning of a publication appears within the language it...

Excerpt: ...intiff shows he properly presented a written administrative claim. Defendants acknowledge that Plaintiff met his claim presentation requirements. However, Defendants argue that Plaintiff failed to timely file this state suit. This argument fails to address the tolling of the state claim due to the pendency of the federal action. (See Addison v. State of California (1978) 21 Cal.3d 313, 319‐320; Harris v. Grimes (2002) 104 Cal.App.4th 180, 189.)...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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