Excerpt: ... Although “conspiracy” is not a separate cause of action, but a means to impose liability on a party who engaged in a common plan or helped perpetrate a tort with the immediate tortfeasors who committed the wrongful act (Applied Equip. Corp. v. Litton Saudi Arabia (1994) 7 Cal.4th 503, 510‐511), and Cross‐ defendant Sandhu is alleged to be the actual tortfeasor who committed the wrongful act, making any allegation of conspiracy against Cr...

Excerpt: ...3AC ¶¶ 3‐4, 11‐14.) She alleges she objected directly to BRANSON who then used his position as her supervisor to harass and retaliate against her. (3AC ¶¶15‐16.) Subsequently, she complained to BRENDEN THEATRE's general manager and alleges that thereafter BRENDEN THEATRE failed to timely and properly investigate her complaint, and wrongfully discharged her while retaining BRANSON. (3AC ¶¶ 17‐18.) Plaintiff further alleges that durin...

Excerpt: ...ed a serious latent manufacturing defect (the “Engine Defect”). 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 or her case “with reasonable precision a...

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: ...n, allow amendments to pleadings “in furtherance of justice.” (Code Civ. Proc. 473, subd. (a)(1).) The court has wide discretion here 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.) Construction of Labor Code Section 558.1. The court finds it is legally possible for the priva...

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: ...'s failure to properly and timely assert it. (Code Civ. Proc., § 1281.2, subd. (a).) This can happen when the proponent has unreasonably delayed in undertaking the procedure. (Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, 557.) The determination of waiver is a question of fact for the trial court. (Ibid.) Relevant factors to finding waiver include actions inconsistent with the right to arbitrate, whether the “litigation machinery h...

Excerpt: ...ng defendants' share of liability. All requirements having been satisfied, the motion is granted. The DUDLEYS' Motion to Contest DAN PALMER's Application for Determination of Good Faith Settlement TENTATIVE RULING ARNOLDO ATILIO GARAY (“GARAY”), Plaintiff in case FCS051729, moves for a determination of good faith settlement regarding settlement of his personal injury claims in that case against DAN PALMER TRUCKING, INC. (“DAN PALMER”) and...

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: ...oena upon a party's motion. The court may make any order as appropriate to protect the subpoenaed entity from unreasonable demands. The court finds that Plaintiffs' subpoenas to Wells Fargo and Bank of the West are only reasonably calculated to lead to the discovery of admissible evidence where they request copies and records of checks, deposits, withdrawals, and transfers from Defendants' accounts. (Obregon v. Superior Court (1998) 67 Cal.App.4t...

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: ...f the relevant information. Defendants were served with the summons and complaint on January 7, 2021. Plaintiff then served defendants, by mail to their home address, requests for admission on February 1, 2021. Defendants' attorney filed an answer on February 3, 2021 and commenced discovery. Defendants' attorney was not informed of the outstanding discovery served by plaintiff by either plaintiff's counsel or her clients and in fact, did not lear...

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: ...ranted. Full and complete verified responses without objections shall be served within 30 days of service of this order. The court notes that the proper motion is a motion for order deeming requests for admission admitted. CCP §2033.280. This was not requested by plaintiff and is not granted. Motion to Compel Responses to Form Interrogatories The motion is granted. Full and complete verified responses without objections shall be served within 30...

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: ...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: ...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: ...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: ...d fifth cause of action for negligence. A plaintiff may maintain a cause of action for equitable indemnity when there is some basis for tort liability against the defendant. (BFGC Architects Planners, Inc. v. Forcum/Mackey Constr., Inc. (2004) 119 Cal.App.4th 848, 852.) While liability under the Agricultural Labor Relations Act is limited to “employers” and excludes farm labor contractors (See, Lab. Code §§ 1140.4(c) [definition of employer...

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: ... in severe cellulitis and near amputation” arising out of a “missed [] step coming out” of a rental vehicle. (Response to UMF 3.) Plaintiff felt no pain or experienced other symptoms of injury on the date of the vehicle collision or the days immediately following the collision. (Id. at 4‐5.) It is undisputed that Plaintiff sustained his left ankle and foot injury “when he ‘misstepped' out of his rental vehicle from about three feet of...

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: ... in severe cellulitis and near amputation” arising out of a “missed [] step coming out” of a rental vehicle. (Response to UMF 3.) Plaintiff felt no pain or experienced other symptoms of injury on the date of the vehicle collision or the days immediately following the collision. (Id. at 4‐5.) It is undisputed that Plaintiff sustained his left ankle and foot injury “when he ‘misstepped' out of his rental vehicle from about three feet of...

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: ... it is not alleged in the complaint, Defendant Farmers asserts in its motion that it is merely the insurer for Defendant Khodaverdi. Plaintiff cannot bring a direct action against an insurer and may not join an insurer in an action against the insured to establish liability. (Rose v. Royal Ins. Co. (1991) 2 Cal.App.4th 709, 718; Zahn v. Canadian Indem. Co. (1976) 57 Cal.App.3d 509, 514.) In any case, having failed to file any opposition to the mo...

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: ...rts have been made to meet and confer to try to informally resolve the disputes. C.C.P. §2025.450(b)(2). 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 certain extent, the judge's gut feel...

Excerpt: ...lure to pay overtime wages, (10) unlawful business practices, (11) quantum meruit, (12) money had and received, and (13) unjust enrichment, filed on November 13, 2020. The core of the complaint is a dispute over an agreement between the parties for SHARMA to purchase real property (the “Property”) from Plaintiff and then sell it back to him. Defendants present a number of attachments and declarations to the court in support of their demurrer....

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: ...e costs of “Transcripts of court proceedings not ordered by the court.” As Item 11 in the memorandum of costs, KAISER GYPSUM COMPANY, INC. (“KAISER”) claimed $29,707.68 in court reporter fees for daily trial transcripts. Of this amount, by time of reply Plaintiff had withdrawn its challenge to the Realtime component of those costs, which the court from the table provided in KAISER's opposition computes to be $2,338.74. Those other costs c...

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