Excerpt: ...tion. (Code Civ. Proc., § 437c, subd. (o)(1).) A summary judgment motion is properly granted where the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not show facts sufficient to present a triable issue of fact. (Parker v. Twentieth Century‐Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion is not to be granted where any triable issue of material fact exists. (Ibi...

Excerpt: ...issues of duty and causation vis‐à‐vis each cause of action therein. Summarized, the complaint alleges that Defendants' negligence caused the death of Plaintiffs' family member Julian Hawkins (“Decedent”) at the hands of a gunman when both were in GENTLEMAN JIM'S, a bar. 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., § 437c, ...

Excerpt: ...ker Boat Co. (2009) 174 Cal.App.4th 1297, 1306.) A cause of action for negligence must be commenced within two years of accrual of the cause of action. (Code Civ. Proc. § 335.1.) 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...

Excerpt: ...CYNTHIA PIKE's complaint for negligence. Code of Civil Procedure section 877.6 provides the procedure by which one settling defendant among many may apply to the court for a determination that his settlement is in good faith. Factors the court should consider when evaluating good faith include a rough approximation of the plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlem...

Excerpt: ...vidence in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not show facts sufficient to present a triable issue of fact. (Parker v. Twentieth Century‐Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion is not to be granted where any triable issue of material fact exists. (Ibid.) Affidavits, declarations, admissions, answers to interrogatories, depositions, and matters judicially...

Excerpt: ...e mistake or inadvertence. (Code Civ. Proc. §§ 2030.290(a), 2031.300(a).) Plaintiff's Motions to Compel Further Responses Plaintiff's motions to compel further responses to interrogatories and to their requests for production of documents are denied without prejudice. Plaintiff's meet and confer declarations do not “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented” (Code Civ. Proc. §...

Excerpt: ...on from Plaintiff CHANG WANG. Request for Judicial Notice (“RJN”). The court takes judicial notice of all of Defendant's proffered documents as records of courts of this state. (Ev. Code, § 452, subd. (d).) Anti‐ SLAPP Analysis. There are two prongs to the analysis of a special motion to strike made pursuant to Code of Civil Procedure section 425.16. (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 780.) First the defendant must make a ...

Excerpt: ...Memoranda of Costs. California Rules of Court, rule 3.1700(a)(1) provides that a prevailing party who claims costs must serve and file its memorandum of costs within fifteen days of service of notice of entry of judgment or dismissal or within 180 days of entry of judgment, whichever is first. Claimant Defendants are prevailing parties in this Solano County action and entitled to claim costs. A dismissal was entered in their favor; it is immateri...

Excerpt: ...hat the conduct was likely to be harmful to the elder. (Welf. & Inst. Code § 15610.30(b); Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 478.) A person takes or secretes real or personal property when the person deprives the elder of any property right, “including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult....

Excerpt: ...e accident. Now, the Guzman defendants seek court approval of their joint settlement offer for the policy limits of Miguelina's automobile insurance policy, which was accepted by Plaintiffs. Defendant County of Solano opposes each of the motions for good faith settlement. Nothing in defendant County's several unfounded allegations, speculative assertions and misrepresentations of evidence can turn straw into gold. There is no evidentiary basis fo...

Excerpt: ...e of action. (Code Civ. Proc., § 437c, subd. (o)(1).) A summary judgment motion is properly granted where the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not show facts sufficient to present a triable issue of fact. (Parker v. Twentieth Century‐Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion is not to be granted where any triable issue of material fact exist...

Excerpt: ...cords are proffered, all other content unrelated to the specific issue must be redacted. Plaintiff's Motion in Limine #2: That the court take judicial notice of Exhibit A (Municipal Ordinances of the City of Vallejo); Exhibit B (Documents produced by Vallejo Planning Department) and Exhibit C (Documents produced by Vallejo Flood and Sewer District). This motion is moot. Cross‐complainant stipulates to the authenticity of these documents, but re...

Excerpt: ...nente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 [64 Cal.Rptr.2d 843, 938 P.2d 903].) In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [58 Cal.Rptr.2d 875, 926 P.2d 1061] (Rosenthal), our Supreme Court explained the requisite procedure: “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine wh...

Excerpt: ...d to enforce that contract where the contract specifically provides for such Page 2 of 4 recovery. The CC&Rs underlying this action specifically provide that remedies for actions brought to enforce the CC&Rs shall include “all costs incurred and reasonable attorneys' fees sustained in commencing and/or defending and maintaining such lawsuit.” (Second Amended Complaint at ¶ 5, Exhibit A [CC&R 6.1.4].) Defendant, the prevailing party in this a...

Excerpt: ... years since her last treatment; that plaintiff now had complaints specifically of left knee pain; and that plaintiff's new physician projected future medical specials in excess of $560,000.00. The parties met and conferred unsuccessfully. The trial has already been continued. The court distinguishes the complaints identified in plaintiff's deposition from the new complaints. The deposition testimony of plaintiff that she experienced pain “from...

Excerpt: ... by the Altman Law Group. Attorneys' fees claimed by Rosner, Barry & Babbitt are disallowed, Plaintiff having failed to establish that any work provided at the trial level by appellate counsel was reasonably incurred under the circumstances. Having considered the relevant factors presented by the parties, the court declines to award any fee enhancement. Plaintiff is awarded all costs claimed in her memorandum of costs. Not only has Defendant fail...

Excerpt: ...n amendment. (See Cardenas v. Ellston (1968) 259 Cal.App.2d 232, 239 [court justified in permitting amendment of answer after cutoff date same court had set during pretrial conference].) Plaintiff's citation to Code of Civil Procedure section 438 is irrelevant as that section applies to amendments made after motions for judgment on the pleadings. The contents of DARREN's amended answer do not now take Plaintiff by surprise as the amended answer w...

Excerpt: ...subdivision (d) authorizes a prevailing plaintiff in a Lemon Law case to recover reasonable attorney's fees. The trial court's determination of Lemon Law attorney's fees starts with the “lodestar” of reasonably incurred number of hours times reasonable hourly rate, taking into account such factors as the complexity of the case and the skill displayed by the attorney. (Nightingale v. Hyundai Motor America (1994) 31 Cal.App.4th 99, 104.) Lemon ...

Excerpt: ...ident, but also cited wildfires and that one of the defendants was in Oregon and would be required to travel to California to track down documents. An extension was granted. A second request for a two‐week extension was made August 31, 2020 which was again granted. On September 1, plaintiff's counsel requested a continuance of the deposition. Ultimately plaintiff's counsel agreed and continued the deposition to October 23, 2020, a date proposed...

Excerpt: ...3(b) based upon mistake, inadvertence, surprise or excusable neglect. The motion is denied. OSI is an Illinois corporation doing business in California. At all times relevant, OSI's designated agent for service of process was CT Corporation. (Declaration of Kenneth Freed, Exhibit 1.) Creditors Adjustment Bureau, Inc. (CAB), a collections agency and assignee of a debt owed to State Compensation Insurance Fund by OSI, filed its complaint in Solano ...

Excerpt: ...p inquiry guides exercise of this discretion: first, the court determines if the inmate is indigent; second, the court determines if the action represents a bona fide threat to his personal or property interests; and third, after affirmatively answering the first two questions, the court must determine what remedy to use to protect the person's right of meaningful access to the courts. (Ibid.) The court, after examining the totality of the circum...

Excerpt: ...n amendment. (See Cardenas v. Ellston (1968) 259 Cal.App.2d 232, 239 [court justified in permitting amendment of answer after cutoff date same court had set during pretrial conference].) Plaintiff's citation to Code of Civil Procedure section 438 is irrelevant as that section applies to amendments made after motions for judgment on the pleadings. The contents of DARREN's amended answer do not now take Plaintiff by surprise as the amended answer w...

Excerpt: ...n file a new motion under C.C.P. §2030.300 to compel even further responses as to those interrogatories, if they comply with all of the procedural requirements for such a motion). As to the 3 interrogatories remaining at issue (8, 18 and 20), the court declines to compel a further response to any of them. Page 2 of 3 As to interrogatories 8 and 20, the court recognizes that under the modified collateral source rule, information about payment by ...

Excerpt: ...ff's health, the threshold for providing information about medical diagnoses and prognoses is very low. C.C.P. §36.5 allows such information to be provided by a party's attorney, based on information and belief. Therefore, “[t]he attorney's declaration can consist entirely of hearsay and conclusions”. Edmon & Karnow (Weil & Brown), Civil Procedure Before Trial, §12:247.1, p. 12(I)‐43, citing Fox v. Superior Court (2018) 21 Cal.App.5th 529...

Excerpt: ...ally alleged the roles specific defendants have played in the two written loan agreements on which the causes of action are based and the use of the term in the subheadings do not impair Defendants' ability to understand the complaint or determine the issues that must be met. (People v. Lim (1941) 18 Cal.2d 872, 882.) Plaintiff has alleged facts establishing that Defendant Dwight Davenport was a party to the agreements on which the first and thir...

Excerpt: ...action.” (Kelly v. House (2020) 47 Cal.App.5th 384, 393, quoting Bell v. Vista Unified Sch. Dist. (2000) 47 Cal.App.4th 672, 686‐687.) Although apportionment may not be necessary if attorneys' fees are incurred for representation on an issue common to causes of action for which attorneys' fees are proper and for which they are not, or if it is impracticable or impossible to separate the attorneys' time into compensable and noncompensable unit...

Excerpt: ...affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any…resulting default judgment or dismissal entered against his or her client, unless the court finds that the default of dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal ...

Excerpt: ...R during the time of the events described in the complaint, is in Riverside County. The court takes judicial notice of all proffered facts as relevant, not reasonably subject to dispute, and capable of immediate and Page 5 of 6 accurate determination by resort to sources of reasonably indisputable accuracy. (Ev. Code, § 452, subd. (h).) Merits of Motion. Code of Civil Procedure section 397, subdivision (a) states that venue may be changed when t...

Excerpt: ...pute regarding these matters has been rendered moot by the service of amended responses. Should Plaintiffs continue to find any of these responses insufficient, they may file an appropriate motion within 45 days of the service of verified responses or any later date to which the parties agree in writing. (Code Civ. Proc. §§ 2031.310(c), 2033.290(c).) The court reminds the parties that they must make a “reasonable and good faith attempt at an ...

Excerpt: ...963) 60 Cal.2d 303, 305; Brizuela v. CalFarm Ins. Co. (2004) 116 Cal.App.4th 578, 590.) Actual prejudice, such as the substantial likelihood that a trier of fact would have found in favor of the insured had the insured not breached the cooperation clause, must be shown. (Billington v. Interinsurance Exch. of S. Cal. (1969) 71 Cal.2d 728, 737‐738; State Farm Fire & Cas. Co. v. Miller (1970) 5 Cal.App.3d 837, 840.) Defendant presents undisputed e...

Excerpt: ... Plaintiff's counsel used the identical lengthy recitation of complaints regarding the subject parking lot which predated the subject incident and listed a long series of documents produced by Defendant. The responses are not responsive to the specific question asked by defense counsel in Special Interrogatories 8 and 14. And, other than boilerplate general objections at the beginning of the Response, no specific objections were raised by Plainti...

Excerpt: ... Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint must allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) 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 and with particularity sufficient to acqua...

Excerpt: ...lice” means conduct intended to cause injury. (Civ. Code, § 3294, subd. (c)(1).) A plaintiff may not conduct pretrial discovery with respect to evidence of a defendant's financial condition without a court order permitting such. (Civ. Code, § 3295, subd. (c).) The court may grant such an order upon motion by the plaintiff supported by affidavits, and a hearing if the court deems one necessary, if the court finds that there is a substantial pr...

Excerpt: ...not to actions for breach of contract. Plut v. Fireman's Fund Inc. (2000) 85 Cal.App.4th 98. Introduction of evidence regarding insurance is admissible if it is not offered to prove negligence or wrongdoing. Seeno Motion in Limine No. 2: to exclude allocation of defense costs, and to exclude evidence of reasonableness of defense costs. Denied. Case law allows the allocation of defense costs. See, e.g., Pulte Home Corporation v. CBR Electric (2020...

Excerpt: ...tion of $210 in filing and service costs, Defendants claim costs that are not authorized by statute, mostly consisting of travel and meal expenses that were not incurred to attend depositions. Defendants have not opposed this motion and have not justified any of these expenses as reasonably necessary to the conduct of the litigation or reasonable in amount. (Code Civ. Proc. § 1033.5(c).) Accordingly, these $14,087.53 in “other costs” shall b...

Excerpt: ...icial notice of the complaint in this case. The court need not take judicial notice of a document that is already a part of the record of this case. Legal Theories of Public Entity Liability for Dangerous Conditions. The issue is whether Plaintiff may maintain causes of action holding Defendant liable for the negligence of its employees and independent contractors that may have caused his injury from tripping over a jagged metal post on the sidew...

Excerpt: ...isposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) #1. DARREN objects that Plaintiff's “Compendium of Evidence” (CE”) item 1A, a Vallejo Police Department police report, is hearsay. The objection is sustained. #2. DARREN objects that Plaintiff's CE‐1B, a transcript of the hearing in Solano County Case No. FCS048949, is hearsay and selectively edited. DARREN specifically objects to three sections of the transcript Plaintiff c...

Excerpt: ...e statutory basis of Plaintiff's first cause of action outright and provides Plaintiff standing to maintain her second cause of action. Its repeal as of January 1, 2020 is thus a point of major concern to this demurrer. (Civ. Code, § 2920.7, subd. (o) [statute automatically repealed Jan. 1, 2020].) It is “a general rule…that a cause of action or remedy dependent on a statute falls with a repeal of that statute, even after the action thereon ...

Excerpt: ...tch purchases and that Defendant charges multiple insufficient funds fees (“NSF Fees”) on single purchases, in violation of its contracts with Plaintiff and others similarly situated. Judicial Notice. The court takes judicial notice of all items Defendant proffers as facts not reasonably subject to dispute or as records of courts of the United States, as appropriate. (Ev. Code § 452, subds. (d), (h).) Legal Standard. “The function of a dem...

Excerpt: ...tion may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. 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 [factors to be considered include the complexity of the discovery issues, the past history of the counsel on prior disputes, and to a certai...

Excerpt: ...dered Plaintiff's untimely Opposition [(C.C.P. §1005(b)], which exceeded the page limit permitted by CRC 3.113. (The Court also notes that Plaintiff's pleadings contain an incorrect email address for Plaintiff's counsel.) Defendant's motion is granted. Good cause has been shown for production of unredacted psychiatric records of the plaintiff. Defendant does not seek unlimited access, but merely for two years prior to the commencement of Plainti...

Excerpt: ...tion may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. 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 [factors to be considered include the complexity of the discovery issues, the past history of the counsel on prior disputes, and to a certai...

Excerpt: ...s‐complaint, for quiet title and declaratory relief. Judicial Notice. Matters subject to judicial notice may support a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (b)(1).) The court takes judicial notice of all proffered items from both parties with the exception of DROLET's Exhibit 18, constituting sections of the Uniform Plumbing Code. (Ev. Code §§ 452, subds. (b), (c), (h) [notice permitted of public entity regulations and...

Excerpt: ...�854.8 uses almost identical language to provide immunity to public entities to injuries occurring to an inpatient at a mental institution. Defendant CALIFORNIA DEPARTMENT OF STATE HOSPITALS (“DSH”) operates mental institutions such as Atascadero State Hospital, at which Michael Galliher (“Decedent”) was housed and treated, during parts of his extended incarceration, and thus could claim immunity under Government Code §854.8. This immuni...

Excerpt: ...c Safety Officer Procedural Bill of Rights (the “POBRA”) within Plaintiffs LISA MCDOWELL (“MCDOWELL”) and NATALIE RAFFERTY's (“RAFFERTY”) complaint. Legal Standard. “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 mus...

Excerpt: ...p.5th 768, 780 (Argentieri).) First the defendant must make a threshold showing that the plaintiff's cause of action to be stricken arises from the defendant's free speech or petition activity as specified in the statute. (Ibid.) Second, if the defendant has made that showing, the burden shifts to the plaintiff to establish, by admissible evidence, a probability of prevailing on the claim. (Ibid.) If the plaintiff fails to do so, the motion to st...

Excerpt: ...ree years after the action is commenced against the defendant." (§ 583.210, subd. (a).) "[A]n action is commenced at the time the complaint is filed." (Ibid.) Dismissal is mandatory where a plaintiff fails to serve a defendant within the statutory time limits. (§ 583.250, subd. (b).) The three‐year rule applies where the defendant seeking dismissal was served as a Doe defendant named in the original complaint, later amended to show his or her...

Excerpt: ...rocedural Bill of Rights (the “POBRA”), and relation in violation of the Labor Code within Plaintiffs LISA MCDOWELL (“MCDOWELL”) and NATALIE RAFFERTY's (“RAFFERTY”) complaint. Legal Standard. “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 f...

Excerpt: ...p.5th 768, 780 (Argentieri).) First the defendant must make a threshold showing that the plaintiff's cause of action to be stricken arises from the defendant's free speech or petition activity as specified in the statute. (Ibid.) Second, if the defendant has made that showing, the burden shifts to the plaintiff to establish, by admissible evidence, a probability of prevailing on the claim. (Ibid.) If the plaintiff fails to do so, the motion to st...

Excerpt: ...2(a) confirms that a public entity is liable for injury proximately caused by an act or omission of its employee if the act or omission would have given rise to a cause of action against that employee. In general, anyone owes a general duty to act with reasonable care, and can be liable for reasonably foreseeable injury caused by the breach of this duty. A person generally has no duty to take action to help another. However, when one voluntarily ...