Excerpt: ...Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817 [appellate court approved over in fees attributable to the motion for attorney fees]. However, only the latter and not the former are subject to any significant multiplier, to compensate for such factors as risk and delay in recovering attorneys fees. Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580-582. The court's role is to review the claims for attorneys fees, and m...

Excerpt: ... the 'game' element out of trial preparation". (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 375.) "A principal purpose of the new discovery act is to facilitate expeditious dispositon of litigation" and "[i]t would contravene that purpose to require two steps in a discovery proceeding where one suffices." (Laddon v. Superior Court (1959) 167 Cal.App.2d 391, 396.) Regardless of whether Defendant legitimately construed Plaintiff's reque...

Excerpt: ...the scope of his employment with MEDIC, caused his vehicle to collide with Plaintiff's vehicle, causing injury. The court has not received opposition to either motion. Meet and Confer Efforts. The court first considers the adequacy of the parties' efforts to meet and confer to work these issues out before resorting to a motion to compel further responses. Code of Civil Procedure section 2016.040 requires a declaration "showing a reasonable and go...

Excerpt: ... would support judgment on the pleadings in favor of Defendants, probably with leave to correct these deficiencies, if they can be corrected (the court finds the discovery responses by SKINNER suggestive but not conclusive as to her lack of standing to pursue a survivor action following the death of the named plaintiff). Nevertheless, summary judgment is proper here because Defendants presented suffcient evidence to negate the element of breach o...

Excerpt: ...A, acting in the scope of his employment with MEDIC, caused his vehicle to collide with Plaintiff's vehicle, causing injury. The court has not received opposition to either motion. Meet and Confer Efforts. The court first considers the adequacy of the parties' efforts to meet and confer to work these issues out before resorting to a motion to compel further responses. Code of Civil Procedure section 2016.040 requires a declaration "showing a reas...

Excerpt: ...f 4 the scope of his employment with MEDIC, caused his vehicle to collide with Plaintiff's vehicle, causing injury. The court has not received opposition to either motion. Meet and Confer Efforts. The court first considers the adequacy of the parties' efforts to meet and confer to work these issues out before resorting to a motion to compel further responses. Code of Civil Procedure secton 2016.040 requires a declaration "showing a reasonable and...

Excerpt: ...to prevent Plaintiff from taking possession of the property, they may file with the court an undertaking in the amount of to cover potential costs and damages that may be sustained as a result of Plaintiff's failure to gain possession. (Code Civ. Proc. S 515.020.) The levying offcer is not authorized to enter a private place to take possession of the property. Plaintiff has not provided the court with any competent evidence establishing probable ...

Excerpt: ...lege breach of the implied Page 2 of 3 warranty of habitability and related claims with regard to real property (the "Property") rented from Defendants. Meet and Confer Efforts. The court first considers the adequacy of the parties' efforts to meet and confer to work discovery issues out before resorting to a motion to compel further responses. The trial court has discretion in determining whether adequate meet and confer efforts preceded the fil...

Excerpt: ...edure section 435, 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 claim or defense and demands for relief not supported by the allegations. (Code Civ. Proc., S 431.10.) "The grounds for a moton to strike s...

Excerpt: ...the arbitration agreement. The contract to rent the storage space and inclusive of the arbitration provision was provided by UHAUL (and Plaintiff also attached a copy to the complaint, and has not disputed that she signed the contract). The arbitration provision also contains a waiver of the right to pursue or participate in representative actions. Page 2 of 7 Plaintiff's opposition to this motion to compel arbitration raised two basic arguments:...

Excerpt: ...home (the "Property") from Defendants VLADISLAV FRENK ("FRENK") and AIDA NAFTALIYEV. Notice of Tentative Ruling. ALLIANCE's notce of demurrer does not advise the recipient that the Solano County Superior Court uses a tentative ruling system, as is required under Local Rule 3.9, subdivision (d). ALLIANCE is cautioned to observe local rules going forward. Legal Standard on Demurrer. "The function of a demurrer is to test the sufficiency of the comp...

Excerpt: ...c policy. Summarized, Plaintiff argued that Defendant terminated her employment because she made whistleblower complaints; Defendant argued that it terminated her employment for the legitimate independent reason that she unnecessarily included patient health information ("PHI") in those complaints in violation of company policy and direct warnings. Legal Standard. Bases for a new trial moton include, as relevant, irregularities in the proceedings...

Excerpt: ... every original purchaser executed a purchase agreement that included a requirement that all post-closing disputes would be resolved pursuant to a separately executed "Individual Dispute Resolution Agreement" and a "Master Dispute Resolution Declaration". (Decl. of Kelly, 3, Exh. 1, S 20.) The "Declaration" set forth the claims process, including the "mandatory arbitration procedures [for] all post-closing Disputes between Declarant and Owner". (...

Excerpt: ...ve golf car. The court has received S&S's reply to Plaintiff's opposition to the motion, as well as S&S's reply to Plaintiff's response to S&S's proffered undisputed material facts. The court has not received a response by S&S to Plaintiff's proffered undisputed material facts. Objections to Evidence. In ruling on a motion for summary judgment or adjudication the court need only rule on those evidentiary objections that it deems material to its d...

Excerpt: ... system, as is required under Local Rule 3.9, subdivision (d). Plaintiffs are cautioned to observe local rules in future filings. Legal Standard on Demurrer. Code of Civil Procedure section 430.20 authorizes a party to demur to an answer to the party's complaint where the answer does not state facts sufficient to constitute a defense. Demurrers to complaints and demurrers to answers generally follow the same analytical process. (South Shore Land ...

Excerpt: ...nlimited to limited jurisdiction, on motion by a defendant filed by the time that defendant must file its initial responsive pleading. C.C.P. 5403.040(b) permits later-filed motions to reclassify, but only if "The moving party shows good cause for not seeking reclassification sooner". Page 2 of 2 WALMART's motion made no showing of gtnd cause for the six to seven month delay in filing here. Even if WALMART's motion had been timely filed and timel...

Excerpt: ...ch the defendant acted on behalf of the plaintiff in a transaction, and either misled or failed to fully disclose information they should have known, which was a substantial factor in causing the plaintiff harm. CACI 4111; Civil Code 51573. Fraud (intentional misrepresentation) involves making a knowing misrepresentation with intent to induce reliance, causing justifiable reliance and harm. Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App...

Excerpt: ...es of motions (although the captions of the notces bear the correct date, as does Plaintiff's oppositions), and to claim that Defendant's counsel had failed to adequately meet and confer before filing the motions. Plaintiff specifically argued that the failure of Defendant's counsel to request an informal discovery hearing precluded a finding of adequate meet and confer efforts. There is no authority for this proposition, nor has Plaintiff's coun...

Excerpt: ...hat is subject to the jurisdiction of the court or the relief demanded in the action would exclude the party from any interest in the property. Strict compliance is required to obtain leave to serve by publication. County of Riverside v. Superior Court (1997) 54 Cal.App.4th 443, 450. Further, constitutional principles of due process of law require that service by publication be used only as a last resort. Watts v. Crawford (1995) 10 Cal.4th 743, ...

Excerpt: ...h); 2. That there is no meritto each of the Defendants' affirmative defense allegations in their Amended Answer to Plaintiff's Third Cause of Action in their Third Amended Complaint for Unruh violations. In support of her Motion, Plaintiff submits four declarations: from herself, her counsel, and two experts, David Atkin, M.D„ and Steve Schraibman, CASP, AIA. She does not prov-de a Separate Statement of undisputed Material Facts. b. Opposition:...

Excerpt: ...ey's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be c...

Excerpt: ...aintiff, now an adult, suffered childhood sexual abuse from Defendant EDWARD HEARN ("HEARN"), a DOLPHINS employee. 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...

Excerpt: ...ictim". (Thing v. La Chusa (1989) 48 cal.3d 644, 667-658; Bird v. Saenz (2002) 28 cal.4th 910, 915.) A bystander may be aware that an injury-producing event is causing injury to the victim without visually observing the exact moment of injury. (Krouse v. Graham (1977) 19 Cal.3d 59, 76; Wilks v. Hom (1992) 2 Cal.App.4th 1254, 1271; see, Bird, 28 Cal.4th at 916 ["To be sure, Thing's requirement that the plaintiff be contemporaneously aware of the i...

Excerpt: ...ugs and/or controlled substances were in her system at the tme of October 25, 2021 motor vehicle collision." Timeliness of Motion. Code of Civil Procedure section 1987.1 gives the trial court power to quash, modify, or direct conditional compliance with a subpoena upon a party's motion. The court may make any order as appropriate to protect the subpoenaed entity from unreasonable demands. Code of Civil Procedure section 1985.3, subdivision (g) mo...

Excerpt: ...us and cause for its denial". (Cal. Rules of Court, rule 3.1113, subds. (a)-(b).) Additionally, on the court's own motion, the court vacates the entry of default on January 19, 2023. Plaintiff's proof of service of the summons and complaint, on a Judicial Council form that explicitly instructs the user "not [to] use this form to show service of a summons and complaint", establishes a failure to satisfy statutory requirements for service of a summ...

Excerpt: ...bd. (b), 2016.040.) Defendant's counsel's declaration accompanying its motion to compel states that since denial of Defendant's previous motion for leave to conduct a mental examination on February 22, 2023 the parties have met and conferred by phone and email. (Declaration of Simone M. Leighty in Support of Motion at "1 7-8, Exhibit F.) Subsequent to these discussions Defendant served a new demand for examination on March 13, 2023, to which Plai...

Excerpt: ...00 case management fee on February 7, 2023, Page 3 of 3 due upon receipt or no later than 30 days from the date of the invoice. On March 3, 2023 a reminder was sent by AAA to Defendant and the message was relayed to the person responsible for approving large expenditures; however, he was on vacation and did not respond to Defendant's general counsel until March 7 with the approval. However, the payment was not issued. On March 14, 2023, AAA sent ...

Excerpt: ...e deposition was unilaterally set, which is incorrect. In fact, Plaintiff's counsel requested dates on which Steve Circosta would be available, but Defendant's counsel failed to respond. Decl. of David Perkins, "11.) In response, Plaintiff's counsel extended an offer to meet and confer which was unsuccessful. The Court notes that the deposition notice was already for a remote deposition and Plaintiff indicated to defense counsel that the depositi...

Excerpt: ... discovery issues out resorting to a motion to compel further responses. 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 (Obregon) [factors include complexity of discovery issues, history of counsel in prior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline to file motion was not sufficient...

Excerpt: ...d due to a defective golf car. Plaintiff has stated that he does not oppose this motion. Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of action. (Code Civ. Proc., S 437c, subd. A summary judgment motion is pro#rly granted where the evidence in support of the moving party would be suffcient to sustain a judgment in his favor and his opponent does not show facts s...

Excerpt: ...ver, a constitutional or statutory provision must identify a clear, nondiscretionary duty to act upon the facts alleged or an abuse of discretion in how [respondent] chose to act" and a petition must "show that there is some specific statutory mandate that was violated by the [public entity]." (In re Dohner (2022) 79 Cal.App.5th 590, 598-599, internal quotations and citations omitted.) Petitioner has not established that Respondent owed a clear, ...

Excerpt: ... discovery issues out before resorting to a motion to compel further responses. 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 (Obregon) [factors include complexity of discovery issues, history of counsel in prior disputes, judge's gut feeling; sending one brief letter 13 days prior to deadline to file motion was not suf...

Excerpt: ... Defendant, was assaulted by train passenger Susanna Campos and her daughter Angie Campos, who was waiting for Susanna at Suisun Station. Objections to Evidence. 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„ S 437c, subd. (q).) The court finds the first two of Defendant's three objections to Plaintiff's evidence im...

Excerpt: ...rnia Environmental Quality Act (the "CEQA"). additionally moves to dismiss the petition on the same grounds upon which he bases his demurrer. The court takes judicial notice under Evidence Code section 452, subdivision (c) of Exhibit A, constituting the notice of exemption stating the categorical exemption of U-18-01-MR1 from the CEQA filed May 5, 2022. The petition was filed on July 26, 2022. Public Resources Code section 21157, subdivision (d) ...

Excerpt: ...cation. (NBC subsidiary (KNBC-TV), Inc. v. superior court (1999) 20 cal.4th 1178, 1208; Mercury Interactive Corporation v. Klein (2007) 158 Cal.App.4th 60, 84.) Accordingly, a court record must not be filed under seal without a court order. (Cal. Rules of Court, rule 2.551(a).) Such an order must not be based solely on the agreement of the parties. (Cal. Rules of Court, rule 2.551(a).) A party seeking the sealing of a court record must file a wri...

Excerpt: ...isputed material facts demonstrated that SUTTER was entitled to judgment because Plaintiffs were unable to prove all elements of their causes of action, and that Plaintiffs failed to establish triable issues of material fact in response. MITCHELL was self-represented at the time when opposition to SUTTER's motion was due and failed to submit timely opposition. MITCHELL states that she has now retained counsel and requests reconsideration so that ...

Excerpt: ...ocument may be accepted when made by a party or if there is no factual dispute over the contents of the document]; Fowler v. Howell (1995) 42 Cal.App.4th 1746, 1749-1750 [court may take judicial notice of the records and files of a state administrative board]; see, e.g., Tapia v. County of San Bernardino (1994) 29 Cal.App.4th 375, fn. 1 [taking judicial notice of the records of the Workers' Compensation Appeals Board].) Although Plaintiff objects...

Excerpt: ...ars that these conditions have existed since Plaintiff filed her initial action in case number FCS052193 on January 18, 2019, which has been pending, without apparent urgency, for over four years and which is currently scheduled to commence trial on July 31, 2023. (Decl. of Straus, 7.) Not only has Plaintiff failed to identify any recent deterioration of health that might explain the current demand for preference (no motion for preference was sub...

Excerpt: ...015.040) and fails to establish that the parties engaged 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 .App.4th 1431, 1439.) Respondent's counsel's declarations do not demonstrate that the parties ever discussed the claimed insuf...

Excerpt: ...t EDWARD HEARN ("HEARN"), a teacher, while attending a DUSD school. Request for Judicial Notice ("RJN"). Matters subject to judicial notice may support a demurrer under Code of Civil Procedure section 430.30, subdivision (a). The court takes judicial notice of the docket of this case (relevantly showing that DUSD was served with Plaintiff's original complaint on October 7, 2020), DUSD's tort claim to DIXON made on August 18, 2022, DIXON's refusal...

Excerpt: ...igent infliction of emotional distress. Plaintiffs' complaint concerns UNIVERSAL's alleged acts and omissions relating to the death of their son Daimon Ferguson ("Decedent") at Defendant SUTTER VALLEY HOSPITALS, dba SUTTER SOLANO MEDICAL CENTER hospital on September 3, 2020. The court has not received opposition from FERGUSON. Page 2 of 5 Objections to Evidence. MITCHELL's objection to UNIVERSAL's Exhibit D, purportedly a security camera video sh...

Excerpt: ...(1941) 44 Cal.App.2d 71, 73.) Plaintiff lists various potential causes of action in the caption before simply listing alleged facts without making any attempt to separately state the causes of action sought to be pursued. From the facts alleged in the body of the complaint, it appears that Plaintiff attempted to state causes of action on the legal theories that Plaintiff's employment was wrongfully terminated either in direct violation of the Fam...

Excerpt: ...ent. This statute provides a summary procedure for enforcing a settlement agreement without the need for a new lawsuit. (Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1252.) A settlement agreement to which parties stipulate orally before the court has established its terms on the record and is not vulnerable to conflicting interpretations; thus judgment may be entered on those terms. (Skulnick v. Roberts Express, Inc. (1994) 2 Cal.App.4th 884, 889...

Excerpt: ...1). C.C.P. §425.16(e)(2) defines “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” to include “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law”. C.C.P. §425.16(e)(2) can encompass sta...

Excerpt: ...sers who might make an offer on the property. The court also intends to modify the provision requiring Defendant Stewart to “continue to make payments on the mortgage of the Property pending its sale” after she has vacated the property. Given the referee's averment that Defendant Stewart “is completely unwilling to cooperate” with the partition process, it does not appear prudent to rely solely on Defendant to continue to make these payme...

Excerpt: ...s. Any insufficiency in these supplemental responses must be raised by a new motion Page 5 of 5 accompanied by a meet and confer declaration demonstrating a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.040.) To meet this meet and confer requirement, counsel must engage in a “serious effort at negotiation and informal resolution” that amounts to a sufficient �...

Excerpt: ...021, plaintiff's counsel sent a notice for defendant's deposition to take place on April 6, 2021, more than a month before the date set for plaintiff's deposition. A litigation battle ensued, with neither side conceding. Depositions were repeatedly set and canceled. Other issues arose. A delay in prosecution was the ultimate result. Page 2 of 5 The lawsuit is now 26 months old and neither the deposition of the plaintiff nor the deposition of the ...

Excerpt: ... to the sales contract. Nor was FCA US LLC an “employee, agent, successor, or assign” of the dealer. Further, FCA US LLC may not enforce the arbitration clause under the doctrine of equitable estoppel or as a third party beneficiary. In contending that the arbitration clause applies to FCA US LLC under the doctrine of equitable estoppel, defendant primarily relies on Felisilda v. FCA US, LLC (2020) 53 Cal.App.5th 486. However, in that case, t...

Excerpt: ...ocedure sections 1281.97 and 1281.98 provide that where a party responsible under an arbitration agreement for payment of arbitration fees fails to pay required fees within thirty days of the fees' due date that party waives its right to compel the other party to continue with arbitration. The waiver of that right affords the other party certain privileges, most relevantly the ability to withdraw from arbitration and proceed in state court and th...

Excerpt: ..., or assign” of the dealer. Further, FCA US LLC may not enforce the arbitration clause under the doctrine of equitable estoppel or as a third party beneficiary. In contending that the arbitration clause applies to FCA US LLC under the doctrine of equitable estoppel, defendant primarily relies on Felisilda v. FCA US, LLC (2020) 53 Cal.App.5th 486. However, in that case, the dealer, who was a signatory to the sales contract, had been named as a d...