Excerpt: ...amount identified in the settlement agreement. Defendant's opposition argued that (1) the court was not presented with a request to retain jurisdiction, because the settlement agreement containing such a request was not filed with the court before this motion; (2) the settlement agreement fails to include a "time is of the essence" provision; and (3) the settlement agreement fails to contain an acceleration clause. As to court jurisdiction, no di...

Excerpt: ...section 436, subdivision (a) permits a court to strike out any irrelevant, false, or improper matter inserted in any pleading, upon a moton or in its discretion. The court understands that the parties agree that the reference to Government Code section 835, relating to public entity liability for the dangerous condition of its property, is in the complaint in error. (Motion to Strike at p. 2, fn. 1.) The references to Government Code secton 815.6...

Excerpt: ...or to the hearing." (Minutes (11/2/23).) The proof of service had to be filed on or before December 7, 2023, or five court days prior to the hearing. (Cal. Rules of Court, rule 3.1300(c).) Defendant Winnresidential's Motion to Strike Defendant Winnresidential California, LP's motion to strike punitive damages from Plaintiff's first amended complaint is granted with leave to amend. A defendant's failure to meet and confer prior to filing the motio...

Excerpt: ... 437c(p)(1); Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 853.) The essential elements for a breach of contract are: 1) a contract, 2) plaintiff's performance, 3) defendant's breach, and 4) damages. (Poseidon Dev., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1112.) It is undisputed that Defendant applied for and entered into a written loan agreement with Plaintiff, Plaintiff performed by disbursing the amount of the lo...

Excerpt: ...pleaded with specificity. (Knox v. Dean (2012) 205 Cal.App.4th 417, 434.) If a claim is based on a statutory duty, facts showing the existence of the claimed duty and the statutory elements of a violation must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790; Khoury v. Maly's of Cal. , Inc. (1993) 14 cal.App.4th 612, 519; Zuniga v. Haus. Auth. (1995) 41 cal.App.4th 82, 95; searcyv. Hemet Unified Sch...

Excerpt: ...tters, leave to amend is granted. On the first count (cause of action) for violation of CIPA: Penal Code 5630 precludes one who, "in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable". Thus, "interception" must be simultaneous (i.e., contemporaneous) with the website user's transmission of informati...

Excerpt: ...heories or unusual circumstances in this case. Yet to date, plaintiff's counsel has propounded 24 sets of written discovery including 5 sets of Form Interrogatories, 2 sets of Form Interrogatories (Employment), 6 sets of Special Interrogatories remarkably totaling more than 116 questions, 5 sets of Requests for Admission and 6 sets of Requests for Production. In addition, Plaintiff has taken 5 depositions including the store manager, 2 assistant ...

Excerpt: ... pp. 3:21-28, 4:17-23.) Plaintiff's motion is a moton to compel further responses, which requires a separate statement. (Cal. Rules of Court, rule 3.1345(a)(2).) The failure to provide a compliant separate statement is a sufficient basis to deny the moton. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) Additionally, the responses are not evasive just because Plaintiff's counsel does not find them credible. Not only are the responses verifi...

Excerpt: ... estate in the Common Area" (UMF 2), that Defendant made adverse claims to Plaintiff's title by employing "personal property, including without limitation four dining tables, ten chairs and multiple heat lamps which fully and completely occupy it, and Defendant has surrounded the Subject Common Area with large potted plants, and a 'Planter Box Barrier'" (IJMF 14) to assert an exclusive or possessory interest in the Page 7 of 7 property (UMF 3), a...

Excerpt: ... damaged by erosion substantially caused by VACAVILLE's use and maintenance of its Alamo Creek drainage easement and a sixty-inch storm drain outfall ninety-two feet upstream and connected to land VACAVILLE owns. Objections to Evidence. In ruling on a moton 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. Plaintiff's objection...

Excerpt: ...amed plaintiff. Fierro v. Landry's Restaurant Inc. (2019) 32 Cal.App.5th 276. In Fierro, one set of named plaintiffs filed a wage and hour purported class action case against an employer. That case was eventually dismissed by the court for failure to bring it to trial within five years. Within days, a new wage and hour purported class action case against that same employer was filed, by a new named plaintiff. The trial court sustained the employe...

Excerpt: ...s employee of Defendant CREATION NETWORKS, INC.), caused an automobile collision that harmed him. 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 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 s...

Excerpt: ...stantially the follow-ng form: "Notice: The Superior Court in and for Solano County has adopted a tentative rulings system that is described in the court's local Rule 3.9. Failure to comply with Rule 3.9 may seriously affect parties' rights in this case." The notice of motion filed here fails to contain this notce. CRC 3.17W requires court costs to be requested by filing and service of a memorandum of costs, within 15 days after service of the no...

Excerpt: ...o oppositions were received to either motion. The motions are granted. The truth of the matters specified in Plaintiff's Request for Admissions, Set One as to DEBORAH M. REED-JACK are deemed admitted, and the genuineness of the documents set forth in Plaintiff's Request for Admissions, Set One are deemed admitted. Page 3 of 3 The truth of the matters specified in Plaintiff's Request for Admissions, Set One as to KEVIN J. REED are deemed admitted,...

Excerpt: ...79 and 1102, fraud, negligent misrepresentation, and negligence. Plaintiffs allege that Moving Defendants brokered a sale of real property (the "Property") on behalf of the seller and failed to disclose "defects in the electrical system." (Complaint at '1 63.) Plaintiffs additionally allege that they have been disturbed twice in the night by persons who previously purchased marijuana from the Propertvs seller. (ld. at 33.) Plaintiffs additionally...

Excerpt: ...esponses to interrogatories and requests for production, the moving party must engage in meet and confer efforts to try to resolve the disputes. [interrogatories]; [requests for production]. The trial court has discretion in determining whether adequate meet and confer efforts preceded the filing of the moton. Obregon v. Superior Court (1998) 67 Cal.App.4th 424 [factors to be considered include the complexity of the discovery issues, the past his...

Excerpt: ... is that the defendant, by the specified improper means (i.e„ 'threats, intimidation or coercion'), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law." (Shoyoye v. County of Angeles (2012) 203 Cal.App.4th 947, 955-956, quoting Austin 8. v. Escondido Union Sch. Dist. (2007) 149 Cal.App.4th 850, 883.) ...

Excerpt: ...in propria persona by filing an Answer to the original Complaint on November 24, 2021. He attended Case Management Conferences on June 14, 2022, October 25, 2022 and December 20, 2022. He failed to file an opposition to, or attend the September 1, 2022 hearing on Plaintiff's Motion to Compel discovery responses. The order on the Motion to Com#l was discussed by the Court during the Case Management Conference on October 25, 2022, which Defendant a...

Excerpt: ...anted, even up to eve of trial, absent evidence that a defendant would be prejudiced by the allow-ng of additional allegations so close to trial (and currently, there is no new trial date set yet for this case). Atkinson v. Elk Corp. (2W3) 109 Cal.App.4th 739, 761. Despite the clear and well-established policy favoring liberality in granting motions for leave to amend, the opposition cited numerous cases to argue that delay alone could justify th...

Excerpt: ... right to compel or proceed with arbitration. Civ. Proc. SS 1281.97(a)(1), 1281.98(a)(1).) Upon a material breach by the drafting party, the consumer may elect to withdraw from arbitration and proceed in a court of appropriate jurisdiction. (Code Civ. Proc. S 1281.97(b)(1), 1281.98(b)(1).) he statutes establish "a simple bright-line rule" and it does not matter that the drafting party's nonpayment may have been inadvertent and did not prejudice t...

Excerpt: ... is therefore denied on this basis. The demurrer filed by FANIA is supported by a filed and served memorandum of points and authorities, and so the court can rule on its merits. The demurrer is sustained with 30 days leave to amend as to the 3rd cause of action for fraud and the 6th cause of action for conspiracy to commit fraud. The elements of a fraud cause of action include a false representation made to another, to induce reliance, and which ...

Excerpt: ...udicial remedy set forth in the CPRA is available only to a person or entity who is seeking disclosure of public records and only where the public entity is allegedly improperly withholding those records ... The CPRA provides no judicial remedy for any other person or entity or a remedy that may be utilized for any purpose other than to determine whether a particular record or class of records must be disclosed. County of Santa Clara v. Superior ...

Excerpt: ...negligent failure to warn, and negligent supervision of a minor. Plaintiff alleges that she suffered childhood sexual abuse from Defendant EDWARD HEARN ("HEARN") and that DUSD is liable on the basis that it employed HEARN as a substitute teacher while Plaintiff attended Dixon High School and as a swim coach for the school swim team of which Plaintiff was a member. DUSD raises seven issues in its moton: (1) that Government Code section 905, subdiv...

Excerpt: ...ore must be shown before it can be considered that there is a contract. That something is an acceptance, and the acceptance is just as much a part of the contract as the proposal, and anything which is a part of the acceptance may be shown, even though the proposal be in writing and the acceptance be not. Griffith v. Bucknam (1947) 81 Cal.App. 2d 454, 458, quoting in Lawrence v. Premier Indem. Assur. Co„ 180 Cal. 688, 698. Plaintiff's first ame...

Excerpt: ...e Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Plaintiff's first cause of action for violation of Civil Code secton 2923.5 and third cause of acton for violation of Civil Code section 2924.9 fail to allege facts establishing a material violation of the statutes. (Civ. Code SS 2924.12(b), 2924.19(b).) A violation is "material" if "it affected the borrower's loan obligations, disrupted the loan modification process, or otherwise harmed the borr...

Excerpt: ...rsonal liability of the public official involved. The determination of the amount of attorneys fees authorized by any statute to be awarded is a matter largely left to the trial court, subject to certain basic concepts. Courts are to apply the "adjusted lodestar" method for determining the amount of attorneys fees it is statutorily authorized to award. This requires the court to find the reasonable number of hours incurred by the attorneys on the...

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: ...take its place, if it finds it appropriate to do so. (a) A judgment entered pursuant to this chapter may be vacated on any ground which would be a defense to an action in this state on the sister state judgment, including the ground that the amount of interest accrued on the sister state judgment and included in the judgment entered pursuant to this chapter is incorrect. (b) Not later than 30 days after service of notice of entry of judgment purs...

Excerpt: ...umstances, for which expert testimony is ordinarily required. Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 357; Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 976. The attorney's actions taken, and not taken, in the subject case form the backbone of a legal malpractice action, and the basis for review by an expert. An expert witness cannot base an opinion on speculation or conjecture. Sargon Enterprises, Inc. v. University of southern ca...

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: ...ort to resolve the discovery disputes before filing the motion. C.C.P. The purposes behind the meet and confer requirement are to force the parties to reexamine their positions, and to narrow their disputes to the "irreducible minimum" before asking the court to resolve them. Edmon & Karnow (We-I & Brown), Civil Procedure Before Trial, 58:1159; See also Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281, quoting Townsend v. Superior Court (1998)...

Excerpt: ...f attachment [Code Civ. Proc, S 482.070, subd. (d)]; applications for writs of possession [Code Civ. Proc„ S 512.030, subd. Defendant has filed no responsive pleading in this action identifying an address of record. Plaintiff's proof of service indicating only service by mail is insufficient in the circumstances. Further, paragraph 05 of the presented settlement agreement between the parties states that Plaintiff shall prepare and file a notice...

Excerpt: ...omplaint against the SCHOENFELDS and Defendant SAFECO INSURANCE COMPANY ("SAFECO") alleges that the SCHOENFELDS contracted with CHOUDHERY for towing and storage of their truck, that SAFECO has issued the SCHOENFELDS an insurance policy obligating it to pay fts insureds' towing and storage costs, that CHOUDHERY performed towing and storage services pursuant to the parties' agreement, and that the SCHOENFELDS and SAFECO have not paid CHOUDHERY. The...

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: ...at trust instrument, but would be a beneficiary to an earlier trust, if that later trust instrument were invalidated. Reading the Probate Code section consistent with the statutory scheme as a whole, and examining the statutory language to give it commonsense meaning, we conclude that claims that trust provisions or amendments are the product of incompetence, undue influence, or fraud, as is alleged here, should be decided by the probate court, i...

Excerpt: ...nterrogatories and requests for production, or to compel a deponent to produce documents and/or appear for a new deposition to answer specific questions posed at a prior deposition, the moving party must engage in meet and confer efforts to try to resolve the disputes. C.C.P. 52025.480(b) [deposition]; [interrogatories]; [requests for production]. The trial court has discretion in determining whether adequate meet and confer efforts preceded the ...

Excerpt: ...aintiffs complaint alleges that Defendants three securities from him as satisfaction of the deed of trust they held against his home but foreclosed on the home and sold it regardless. Mootness of Demurrer and Motion. The court has not received opposition to the demurrer; however, Plaintiff filed a first amended complainton August 15, 2023. Plaintiff filed his amended complaint a day late. It is not valid and it does not mint consideration of Defe...

Excerpt: ... a cause of action for legal malpractice are (1) the attorney-client relationship or other basis for duty; (2) a negligent act or omission; (3) causation; and (4) damages." (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1528, quoting Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 863, italics in original.) The duty is for an attorney to "use such skill, prudence, and diligence as members of his or her profession commonly possess and ex...

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: ... 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: ...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: ...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: ...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 ...