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 ...