Excerpt: ...g prior to April 15, 2020, until April 15, 2020. Plaintiffs accordingly were allowed up to April 15, 2020 to file their opposition. They filed the opposition on that date, making it timely. Defendant Ridgely Oliver Muller, M.D. (“Muller”) moves for summary judgment or, alternatively, summary adjudication against Plaintiffs' complaint. Preliminarily, he calls this a motion for summary judgment or adjudication but it is in effect simply a motio...

Excerpt: ...h Defendants, Safeco approved an initial $1.7 million policy payout to Plaintiffs. The approval was sent via email on November 29, 2017 and the next day, November 30, 2017, Safeco issued and sent the check directly to Plaintiffs. However, also on November 30, 2017, Jim Aljian signed a Public Insurance Adjuster Contract with Defendants. In relevant part, the contract states that Plaintiffs retain Defendants “to advise and assist in the measureme...

Excerpt: ...ed a verdict in favor of Badger finding that his sister, defendant Jean Terribilini, had committed a nuisance. Plaintiff moves for reimbursement of attorney fees and costs he incurred in proving that he has an implied easement and an irrevocable license to continue drawing water from a source on his sister's parcel to supply his own, adjoining property. Specifically, he argues that Terribilini should have admitted Requests for Admissions (“RFAs...

Excerpt: .... In addition, the Cardmember Agreement provides that use of the card constitutes acceptance of the agreement. (Id. at Nos. 2, 11.) Thus, by use of the card, Defendant, agreed to pay Plaintiff for all charges made on this account. (Ibid.) Plaintiff complied with its obligations under the Agreement by paying vendors for all charges that were made on Defendant's account. (Id. at Nos. 3, 12). Defendant received billing statements but failed to dispu...

Excerpt: ...certain, as set forth below. The Arguments Defendants demur to the complaint on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. They contend that the default under the terms of the Note occurs if they fail to make required payments and that no allegation shows that any payment occurred after February 2, 2012. This, they claim, indicates that the four-year statute of limitations under Code of C...

Excerpt: ...icy. (Id. at ¶¶3, 15.) Following the fire, Plaintiffs brought suit against State Farm for breach of contract; breach of the implied covenant of good faith and fair dealing; negligence; concealment; negligent misrepresentation; estoppel; reformation; and breach of a reformed contract; and against Pollard for breach of contract and negligence. Plaintiffs allege that State Farm breached the agreement “by failing to pay all amounts due for the lo...

Excerpt: ... defendant file an ex parte application to exceed the page limit. This application was opposed. The Court, Judge Wick, denied defendant's application. Rather than file a corrected points and authorities, defendant filed another ex parte application to exceed the page limit on April 15, 2020, which was processed and entered into the court's system on April 30, 2020. The application was again opposed. In light of the pandemic related court closure,...

Excerpt: ...djudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there is no defense to the cause of action, or that an affirmative defense has no merit, or that there is no merit to a claim for damages “as specified in” Civil Code section 3294, or that a party did or did not owe a duty. Code of Civil Procedure section 437c(f)(1). As th...

Excerpt: ...ion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers. Coy v. Superior Court (1962) 58 Cal.2d 210, 220- 221. A party moving to compel further responses to a production request, however, must demonstrate “good cause" for seeking the items. Code of Civil Procedure section 2031.310(b)(1). This requires a showing that the items are relevant to the subject matter of the litigat...

Excerpt: ...resided over the small claims trial/proceeding. Both parties represented themselves at the small claims trial. Defendant thereafter filed an appeal from the small claims court decision, pursuant to CCP Sec.116.710 and CCP Sec.116.750. Defendant was represented by O'Brien, Watters, and Davis, LLP in the appeal (which, by statute, consists of a de novo hearing before a different judicial officer). Plaintiff had retained counsel to represent her in ...

Excerpt: ...e of Civil Procedure section 473(d) and on the grounds that the default judgment is “void” because the summons and complaint were never properly served. Plaintiff has not opposed the motion. Defendant's motion to set aside the default judgment is GRANTED. Defendant has thirty (30) days from service of the Court's final ruling to file and serve her motion to quash. The Code states in part that “[t]he court may…on motion of either party aft...

Excerpt: ...r costs and attorney fees in favor of defendant after her demurrer was sustained without leave to amend. The total amount of the judgment is $33,012. Plaintiff has filed an appeal and defendant now urges the court to exercise its discretion under CCP §917.9(a)(3) and order plaintiff to post an undertaking to stay enforcement of the judgment. After this action was filed, Power discovered that in 2011, the California State Bar had issued a Notice ...

Excerpt: ... using the information outside this litigation. The motion is DENIED in all other respects, including the request to quash the subpoena or issue a protective order limiting the information and records to be produced. Plaintiff served Wells Fargo & Company (“Wells”) with a deposition subpoena for production of business records on January 22, 2020 seeking production of the statements, cashiers' checks, deposits and credits, checks, withdrawals,...

Excerpt: ...is is not clear. Except for any part of the motion which the Court finds to be moot, or for which the parties demonstrate otherwise, Motion to Compel Post Construction Services, L.P. to Further Respond to Defendant's Requests for Production of Documents and to Produce Additional Documents GRANTED. Reasonable sanctions of $7,276.75, based on 18 hours of work, awarded to the moving party. Denmark moves the Court to compel further responses and prod...

Excerpt: ... former employees of Black Bear Diner in Rohnert Park. Plaintiffs Amanda Wolf, Claudia Cairo, Monique Cortes-Arcos, and Lena Sheridan allege claims based on sexual assault, sexual discrimination and pregnancy discrimination. Jose Bustillos' claims are based on his status as a whistleblower who reported to BBDI the alleged abusive treatment of women at the diner as well as alleged health and safety violations. Plaintiffs' Evidentiary Objections Pl...

Excerpt: ...ica (1972) 6 Cal.3d 920, 939. As long as the motion is “timely” and will not prejudice a party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice...

Excerpt: ...ached bolt.” (FAC at ¶7.) Plaintiff contends that “[t]he unpadded metal fence post and bolt was a ‘dangerous condition' when athletic activities such as football practice were being conducted contiguous and toward the unpadded fence post and the injury sustained by [P]laintiff was ‘reasonably foreseeable and created a ‘substantial risk' of the type of injury alleged...” (Id. at ¶9.) Plaintiff also contends that “[d]efendants had �...

Excerpt: ...t making a prima facie showing that plaintiff cannot establish at least one element of any cause of action, or there is a complete defense to the cause of action. Code of Civil Procedure section 437c(f)(1), (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant can show that an element cannot be established only if its undisputed facts negate plaintiff's allegations as a matter of law and would make it impossible for plain...

Excerpt: ... normal size, constantly in pain level ‘10' and [Plaintiff] can no longer work in construction or as a carpenter due to [Dr. Bennett's] negligence and Memorial Hospital's.” (Ibid.) On November 19, 2019, Plaintiff filed a form complaint against Dr. Bennett and Santa Rosa Memorial Hospital but Plaintiff included two different forms: a breach of contract (PLD-C-001) and a personal injury (PLD-PI- 001.) In Plaintiff's breach of contract complaint...

Excerpt: ...“troublemaker” and breached their duty of care by allowing Mr. Gibson into the business. Plaintiff seeks recovery of damages for lost wages; hospital and medical expenses; loss of earning capacity; defamation of character; emotional distress; and pain and suffering. Plaintiff also seeks punitive damages. Defendants demurrer to the complaint under Code of Civil Procedure section 430.10(e) on the grounds the complaint fails to state a cause of ...

Excerpt: ... to return to public safety officer duties and had limited him to office work. This was significant to plaintiff's ability to prove many of his claims since it meant he was unable to do any field work (an essential function of his police sergeant position), even with reasonable accommodation. In 2019, plaintiff denied the following requests for admission: No. 1: “Your medical restrictions precluded you from performing the essential functions of...

Excerpt: ...y, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party. Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490. Prejudice ex...

Excerpt: ...same cause of action, the prior judgment is a complete bar. Edmonds v. Glenn-Colusa Irr. Dist. (1933) 217 Cal. 436, 445; see also 7 Witkin, Cal. Proc. (5th Ed. 2008), Judgment, sections 334-335, 402. The doctrine applies only between the same parties or where there is “substantial identity” of the parties. Code of Civil Procedure sections 1908, 1910; French v. Rishell (1953) 40 Cal.2d 477, 481; see also, 7 Witkin, Cal. Proc. (5th Ed. 2008) Ju...

Excerpt: ...ure section 128.7. Defendant seeks an order that 1) Plaintiffs not seek further merits-based relief until completing the class notice and opt-out procedures; 2) Plaintiffs submit a proposed class notice; and 3) Plaintiffs and their counsel pay costs of this motion and the opposition to the failed motion for summary adjudication. It contends that Plaintiffs clearly failed to meet their burden on the motion for summary adjudication and that Plainti...

Excerpt: ... that required its use. (Ibid.) As a result of Defendant's failure to provide such protection, Plaintiff fell and suffered serious injuries. (Ibid.) The Complaint contends that under the rebuttable presumption in Labor Code section 2750.5, Plaintiff must be considered an “employee” of Defendant and not an “independent contractor” because Plaintiff was performing services for which a license was required, regardless of whether Plaintiff wa...

Excerpt: ... for a demurrer are set forth in Code of Civil Procedure section 430.10. The grounds, as alphabetically identified in the statute, are: (a) the court lacks subject-matter jurisdiction; (b) the person filing the complaint lacks legal capacity to sue; (c) another action pending between the same parties on the same cause of action; (d) defect or misjoinder of parties; (e) the pleading fails to state facts sufficient to constitute a cause of action; ...

Excerpt: ...ponses to Plaintiff's Form Interrogatories, Set One; Special Interrogatories, Set One; Request for Production of Documents, Set One; and Requests for Admission, Set One. Defendant's request for an extension to respond to discovery requests is GRANTED. For the reasons stated below, the court hereby orders Defendant David Robert Fritschi, Jr., to provide further responses to all of Plaintiff's outstanding discovery requests that are the subject of ...

Excerpt: ... that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:…(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings ...

Excerpt: ...in declarations filed no later than December 20, 2019. Wirtz was also ordered to file a code-compliant supplemental separate statement. Wirtz filed an amended separate statement (406 pages long) as well as a meet and confer declaration on December 20, 2019. (1) Defendant served significantly amended discovery responses (to all but the requests for production) on December 23, 2019, and he invited a meet and confer response regarding the adequacy o...

Excerpt: ...arty” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there is no defense to the cause of action, or that an affirmative defense has no merit, or that there is no merit to a claim for damages “as specified in” Civil Code section 3294, or that a party did or did not owe a duty. Code of Civil Procedure section...

Excerpt: ...ivil Procedure section 526(a)(2); Korean Philadelphia Presbyterian Church v. Cal. Presbytery (2000) 77 Cal.App.4th 1069, 1084. The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action. Korean Philadelphia Presbyterian Church, supra. The irreparable injury will exist if the party seeking the injunction will be seriously injured in a way that late...

Excerpt: ...uit but not of the Settlement. Upon further review of the Declaration of Attorney John Scheppach, the Court is satisfied notice of the settlement was provided to LWDA. Motion is GRANTED. The determination granting the motion and final approval of the Settlement will include the request for attorneys' fees and costs, payment of administrator expenses, and enhancement for named class Member Andrew Pomele, all made as part of this motion. The Court ...

Excerpt: ...right of reentry during the unexpired term of the original lease. See, Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 492, fn.2; Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 352; Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 242-243. Assignment or a novation transferring all rights and obligations of the original tenant to a new tenant by agreement between the landlord, o...

Excerpt: ...e. Defendants move for summary adjudication of the second cause of action, which seeks to quiet title based on plaintiffs' alleged adverse possession of a portion of the real property that has been improved over the years. “The elements of adverse possession are as follows: ‘(1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owner's title. (3) The...

Excerpt: ... that required its use. (Ibid.) As a result of Defendant's failure to provide such protection, Plaintiff fell and suffered serious injuries. (Ibid.) The Complaint contends that under the rebuttable presumption in Labor Code section 2750.5, Plaintiff must be considered an “employee” of Defendant and not an “independent contractor” because Plaintiff was performing services for which a license was required, regardless of whether Plaintiff wa...

Excerpt: ...2) conversion; (3) breach of contract; (4) breach of implied covenant of good faith and fair dealing; (5) breach of duty of loyalty; (6) tortious interference with economic relations; (7) fraud; (8) trade libel; and (9) unfair competition. As alleged in the complaint, AMLG is doing business in Sonoma County, and Henderson was at all relevant times residing in Monterey County. (Complaint, ¶¶3&4.) Henderson moves to change venue from Sonoma Count...

Excerpt: ...f Civil Procedure sections 2030.300, 2031.310. The moving party must make adequate attempts to meet and confer. Ibid. Generally, once a timely, proper motion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers. Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-221. Objections at Issue The objection based on the Fifth Amendment privilege seems to be the focus of this motion and the par...

Excerpt: ...s 5, 9, and 10 as well as Broadhead interrogatories 3 and 5, those for which Plaintiffs provided amended responses after Defendants filed this motion. Technically, Defendants should address these in a new motion instead of simply the reply. That said, in the interests of economy, the Court finds the motion unpersuasive as to these on the merits, for the reasons explained below. The Court grants the motion as to requiring Plaintiffs to indicate wh...

Excerpt: ...esolving the merits of a section 425.16 motion involves a two-part analysis, concentrating initially on whether the challenged cause of action arises from protected activity within the meaning of the statute and, if it does, proceeding secondly to whether the plaintiff can establish a probability of prevailing on the merits. (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569.) The court accepts as true all evidence favorable to the plaintiff and ...

Excerpt: ...rit of mandate, “[t]he inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.” In such cases, where “the issue is whether a fair administrative hearing was conducted, the petitioner is entitled to an independent judicial determination of the issue.” Pomona Valley Hospital Med...

Excerpt: ...e court finds defendant has failed to establish that responding pursuant to CCP §2030.230 is sufficient under the circumstances. CCP § 2030.230 provides: If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same fo...

Excerpt: ...emic, the matter was continued to May 13, 2020, at 3:00 p.m. in Department 17. The previously posted tentative ruling is as follows: Plaintiff Austin Kooba moves to lift the stay of the proceedings on the grounds that the Labor Code Private Attorneys General Act (“PAGA”) claim in the first cause of action for Paid Sick Leave is not subject to arbitration because there is no private right of action and because every claim sued under the PAGA i...

Excerpt: ...atment was within the standard of care, and 2) Britt's treatment was within the standard of care. Any “party” may move for summary judgment or adjudication. Code of Civil Procedure section 437c(a), (f). A party is entitled to summary judgment if demonstrating “that the action has no merit or that there is no defense to the action or proceeding.” Code of Civil Procedure section 437c(a). For summary adjudication, the “party” may seek ad...

Excerpt: ...servicer was not entitled to record a notice of default, or if a notice of default has already been recorded, record a notice of sale or conduct a trustee's sale until the later of… “the later of 15 days after the denial of the appeal or 14 days after a first lien loan modification is offered after appeal but declined by the borrower, or, if a first lien loan modification is offered and accepted after appeal, the date on which the borrower fa...

Excerpt: ...of judgment. Southern Response's motion is fully briefed and the court finds it appropriate to advance the motion to be heard concurrently with plaintiffs' motion for final approval. Accordingly, the court provides a tentative ruling on both motions below. Defendant Southern Response's Motion for Leave to File Cross-Complaint Southern Response does not oppose, in principle, the class action settlement between plaintiffs and defendant Interstate R...

Excerpt: ...olations on the ground that it is uncertain. The demurrers are SUSTAINED with leave to amend. Third Cause of Action for Fraud and Statutory Violations The parties have agreed that the alleged statutory violations are only against Defendant David Lucas for his alleged failure to provide a 7-Day Right of Cancellation Notice to the Plaintiffs and that the demurrer with regard to statutory violations is moot. With regard to the cause of action as it ...

Excerpt: ...ire. In his Complaint, Plaintiff alleges that Defendant “represented that it was knowledgeable of the conditions threatening Plaintiff's home and expressed a willingness to undertake certain duties and responsibilities to protect Plaintiff's home by establishing adequate policy limits." (Complaint at ¶18). Plaintiff further alleges that Defendant represented that it would calculate the rebuilding cost of Plaintiff's home and to obtain the actu...

Excerpt: ...wed for loan modification, inducing them to act in reliance on this representation, to Plaintiffs' detriment. AmeriHome argues that Plaintiffs fail to plead this with requisite particularity and Plaintiffs fail to plead the elements of misrepresentation. The elements for negligent misrepresentation are similar to fraud, but without the same level of intent and knowledge: 1) misrepresentation; 2) of a material fact; 3) no reasonable ground for bel...

Excerpt: ... FAIR Plan); professional negligence (against Krieg); negligent misrepresentation (against all Defendants); reformation of contract (against FIE and a separate cause of action against FAIR Plan); promissory estoppel (against all Defendants); breach of the implied covenant of good faith and fair dealing (against FAIR Plan); and conspiracy (against all Defendants). Krieg and FIE bring this demurrer to the seventh cause of action for “breach of co...

Excerpt: ...e action was filed on April 10, 2019, The parties settled this matter on November 4, 2019, and agreed that plaintiff's attorney fees would be decided by noticed motion. Attorney Fees Defendant FCA opposes the motion. FCA first argues that the plaintiff's counsel's billing records do not apportion fees. Plaintiff's complaint alleged causes of action for (1) violation of the Song-Beverly Consumer Warranty Act (against FCA and Lithia); (2) Negligent...

Excerpt: ...ant Superintendent, the school district acknowledges receiving the summons and complaint but believed plaintiff's appeal of its decision was “closed” and that the matter had been concluded. Therefore, the complaint was simply filed in the file related to plaintiff's case and was not forwarded to the district's counsel or claims administrator. (See Mizera Decl., ¶¶ 14-16.) Accordingly, defendant's motion is granted and it shall file a respon...

Excerpt: ... or there is a complete defense to every cause of action. Code of Civil Procedure section 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant shows that an element cannot be established only if its undisputed facts negate plaintiff's allegations as a matter of law and would make it impossible for plaintiff to show a prima facie case. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. Once the moving party has met its...

Excerpt: ...leges she suffered injuries because the Feeneys failed to “ensure guests left their premises safely.” Specifically, per the complaint, the Feeneys failed to prevent plaintiff from being injured in a fight in their driveway and to organize transportation for plaintiff from their home after the party. Plaintiff also alleges the Feeneys served alcohol and drugs to their guests. The Feeneys move for summary judgment on the ground that plaintiff c...

Excerpt: ...” The written version of the settlement, a written copy of which Defendant provides in the moving papers, is signed November 28, 2017 and likewise expressly states that the Court is to “maintain jurisdiction in order to enforce the terms of this Agreement.” Settlement section 4.16. When a party seeks to enforce a stipulated settlement entered in writing or orally before the court, the court “may enter judgment pursuant to the terms of the...

Excerpt: ...nfidential as they must be reviewed in camera and the contents of the certificates can only be revealed to a prevailing defendant at the conclusion of litigation as specified in subdivision (p) of CCP §340.1. California Rule of Court 2.585 governs confidential in camera reviews and states: (a) Minutes of proceedings If a confidential in-camera proceeding is held in which a party is excluded from being represented, the clerk must include in the m...

Excerpt: ... Kay Rudolph (“Plaintiff”) filed her complaint against Defendants alleging a first cause of action for Breach of Contract, a second cause of action for Unfair Employment Practices, and a third cause of action for Hostile Work Environment (“the Complaint”). The Complaint alleges that from June 2005 until August 2018, Plaintiff was the Vice President of Academic Affairs and Assistant Superintendent at Santa Rosa Junior College. (Complaint �...

Excerpt: ...igently maintained the cross-walk or the crosswalk flashing lights and thus created an unreasonably dangerous condition.(FAC ¶10.) Other attributes contributing to the alleged dangerous condition are the volume and rate of speed of traffic and the limited visibility due to the sun and/or shadows. (FAC ¶12.) On August 8, 2018, Plaintiff served Defendant City with Request for Production of Documents, Set No. One. (Romero Decl. ¶6.) This set of r...

Excerpt: ...AGA violations is SUSTAINED without leave to amend. The demurrer to the sixth cause of action for failure to pay business expenses is OVERRRULED. Motion to Strike Defendant contends that the entire FAC should be stricken and disregarded because Ravina failed to timely file the FAC after the Court sustained Ygrene's demurrer. Defendant cites California Rule of Court (“CRC”) 3.1320, which requires a noticed motion to strike an untimely pleading...

Excerpt: ...intiff's right to a writ of possession depends on applicable substantive law. To obtain the writ, plaintiff must show that he or she: has the right to immediate possession of tangible personal property; and the property is being wrongfully withheld by defendant. (See CCP § 512.010; Englert v. IVAC Corp. (1979) 92 Cal. App. 3d 178, 184.) The principal procedural requirements are to show that the claim of right to possession “is probably valid�...

Excerpt: ...eight horn attached to the truck for an extended period of time within approximately 5 feet of [P]laintiff.” (FAC at ¶12.) Plaintiff alleges that “Defendant's conduct, including but not limited to, intentionally blowing a freight horn within 5 feet of [P]laintiff while [P]laintiff was talking to him was intentional and malicious and done for the purpose of causing [P]laintiff to suffer humiliation, mental anguish, and emotional and physical ...

Excerpt: ... who represented Defendant subsequent to Plaintiff. The Court sustained that demurrer, in its entirety and without leave to amend. Thus, the only claim that remains at issue in this action is Plaintiff's claim to establish the value and validity of the lien. Specifically, Plaintiff alleges that he had an enforceable contingency fee attorney-client agreement with Defendant which required Defendant to pay Plaintiff 33 1/3% of the net recover of com...

Excerpt: ....00. Plaintiff's attorneys request a “lodestar” enhancement of 1.5 in the amount of $27,046.25, for a total attorney fee award of $81,138.75. Plaintiff also requests reimbursement of costs and expenses in the amount of $6,412.06. Attorney fees, costs, and expenses are GRANTED in the total amount of $61,060.36, as provided below. The complaint alleges that plaintiff purchased a vehicle from defendant FCA US LLC (“FCA”) for which FCA issued...

Excerpt: ...erty. Plaintiffs concede that Irma willingly and knowingly transferred a joint tenancy interest to Defendant solely as a means to help Defendant financially and to get a modification on the mortgage. Plaintiffs contend that at all times, it was the Irma's intent that as soon as Defendant was financially stable, Defendant would voluntarily deed her share of the title back to Irma, who would then deed the entire property to the trust. Plaintiffs al...

Excerpt: ... and request for production although the deadline passed several months ago and Plaintiff has waived objections at this moment. However, the Court notes the context of this discovery dispute, including Plaintiff's move and apparent health issues as well as change in attorney, which resulted in the continuance of this motion, and the opposition statement from Plaintiff's new attorney promising service of responses in March 2020. The Court accordin...

Excerpt: ...e absence of any request for relief under those grounds…[W]hen faced with a motion for relief under section 473, the trial court does not have to consider the availability of relief under the mandatory provision unless such relief is requested in an appropriate manner.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126.) “A basic principle of motion practice is that the moving party must specify for the court and the opposing party the g...

Excerpt: ...e function of a cross- complaint in the (now) consolidated civil action. Indeed, Objector's opposition seems to treat this single document, filed before consolidation of these actions, as both an Objection and cross-complaint. The First Amended Will Contest also seeks to find Petitioner Launay “guilty” of elder abuse, or undue influence, a function only retained by a criminal court. It also seeks some unspecified affirmative relief for violat...

Excerpt: ... Amendment right to petition and free speech and Cross-Complainants Details of Sonoma (“DOS”) and David Lucas (“Lucas”)(together “Cross- Complainants”) have little or no probability of prevailing on the merits. Cross-Complainants oppose the motion. For the reasons stated below, the motion is GRANTED. Objections Cross-Defendants objection to paragraph 19 of the Declaration of David Lucas, “Details of Sonoma, Inc. has acted in its cha...

Excerpt: ...ment special interrogatories (“SIs”) and for monetary sanctions. The Motion is GRANTED, except that as a pro per, Judgment Creditor may only recover the $90 in costs incurred as sanctions. A judgment creditor is entitled to serve written interrogatories to obtain information to aid in enforcement of a money judgment. Cal. Code Civ. Proc. (“CCP”) §§ 708.010(a), 708.020(a). A judgment creditor may also serve inspection demands on a judgme...

Excerpt: ...ourt, submitting it to the opposing party for review five days prior to submitting it to the court. Timeliness Real Party in Interest Cornell Farms, LLC (“Real Party” or “RPI”) contends that the motion is untimely based on the 180-day deadline to move for attorney's fees starting when the court filed its Statement of Decision on April 29, 2015 and therefore expiring on Oct. 27, 2015. The court addressed this in Volker's motion for leave t...

Excerpt: ...r than the enhanced remedies for elder abuse, solely based on the requirements of Code of Civil Procedure section 425.13. Plaintiff may resolve this issue by seeking to comply with Code of Civil Procedure section 425.13. Requests for judicial notice is denied as to the purported correspondence from the demurrer facilitator but granted as to the documents on file in the Court's record. Demurrer Second Cause of Action: Elder Abuse Welfare and Insti...

Excerpt: ...for reconsideration and that the instant demurrer should be sustained for the same reasons as the last. In the opposition, petitioner Rowley “acknowledges that the Court's reasoning in its order sustaining the [previous] demurrer appears to apply to the amended [petition]. Rowley believes, with all due respect, that the Court's reasoning was mistaken…” (Rowley's Opposition, p. 1, lines 8-10.) The Court remains unpersuaded by Rowley's positi...

Excerpt: ... who represented Defendant subsequent to Plaintiff. The Court sustained that demurrer, in its entirety and without leave to amend. Thus, the only claim that remains at issue in this action is Plaintiff's claim to establish the value and validity of the lien. Specifically, Plaintiff alleges that he had an enforceable contingency fee attorney-client agreement with Defendant which required Defendant to pay Plaintiff 33 1/3% of the net recover of com...

Excerpt: ...eight horn attached to the truck for an extended period of time within approximately 5 feet of [P]laintiff.” (FAC at ¶12.) Plaintiff alleges that “Defendant's conduct, including but not limited to, intentionally blowing a freight horn within 5 feet of [P]laintiff while [P]laintiff was talking to him was intentional and malicious and done for the purpose of causing [P]laintiff to suffer humiliation, mental anguish, and emotional and physical ...

Excerpt: ...ey fees and costs. This is a lemon law action involving violations of the Song-Beverly Act. Shortly before trial, defendant FCA US LLC accepted plaintiff's CCP §998 offer in the amount of $142,000. It is undisputed that plaintiffs are the prevailing party in this case and that they are entitled to reasonable attorney fees, costs and expenses. (Code of Civil Procedure §1032(a)(4); Civil Code §1794(d).) The calculation of reasonable attorney fee...

Excerpt: ...erty. Plaintiffs concede that Irma willingly and knowingly transferred a joint tenancy interest to Defendant solely as a means to help Defendant financially and to get a modification on the mortgage. Plaintiffs contend that at all times, it was the Irma's intent that as soon as Defendant was financially stable, Defendant would voluntarily deed her share of the title back to Irma, who would then deed the entire property to the trust. Plaintiffs al...

Excerpt: ...for Damages for Negligence and Premises Liability. The FAC alleges that on January 3, 2017, Plaintiff was legally on property located at 19323 Sonoma Highway, Sonoma, California 95476 (“the Property”). On that date, an uncovered and exposed interior bolt located at the Property caught on Plaintiff's pants while he was carrying material and/or otherwise performing work, ultimately causing Plaintiff to fall, causing him serious bodily injury. P...

Excerpt: ...which support factual assertions which he admits are undisputed and true, such as, e.g., the Ivancovich Declaration, Ex. D. Most of the objections are based on Plaintiff's primary argument that the witness, Ivancovich, is not a custodian or other properly qualified to as a witness, and lacks personal knowledge needed, to authenticate Defendant's records, a core part of Defendant's evidence, and that she lacks personal knowledge of the events she ...

Excerpt: ...stice. Collins v. State of California (2004) 121 Cal.App.4th 1112, 1123; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems (1999) 20 Cal.4th 1135, 1145. As stated in Collins, supra, at 1124, [u]ltimately, disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern must be to preserve public trust ...

Excerpt: ...h cannot be arbitrated, the stay is no longer justified. The motion is GRANTED. The stay is hereby lifted. Defendant The Permanente Medical Group, Inc. opposes the motion. Defendant argues that based upon Plaintiff's allegations, there are two claims for damages pleaded in a single cause of action: (1) there is a demand for payment of the Plaintiff Austin Kooba's accumulated sick pay, and (2) a demand for damages in a representative PAGA claim fo...

Excerpt: ...e or tax costs. This agreement must be confirmed in writing, specify the extended date for service, and be filed with the clerk. In the absence of an agreement, the court may extend the times for serving and filing the cost memorandum or the notice of motion to strike or tax costs for a period not to exceed 30 days.” According to the email exchange between counsel attached to the filed stipulation, it is plaintiff who proposed December 6 th as ...

Excerpt: ...tect the constitutional right of petition and free speech and it protects a broad variety of conduct which subdivisions (b)(1) and (e) define as being any “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue.” See also Braun v. Chronicle Pub. Co. (1997) 52 Cal.App.4th 1036, 1044-1045. Subdivision (b)(1) states that the special motion to strike a...

Excerpt: ...lleges Szostak knew of but failed to disclose the condition of the roof during the sale. Per plaintiff, had he known the facts regarding the condition of the property, he would not have purchased it for $328,000. The complaint alleges the following causes of action: (1) fraud and deceit – intentional misrepresentation; (2) fraud and deceit – concealment, suppression, nondisclosure; (3) negligent misrepresentation; (4) negligence; and (5) brea...

Excerpt: ...or the evidence excluded based on these objections but is based on the assumption that no objections have been sustained. Any “party” may move for summary adjudication. Code of Civil Procedure section 437c(a), (f). For summary adjudication, the “party” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there ...

Excerpt: ...Smith-Wahl's shares. Christensen acted as the personal accountant for the parties long before the 2013 sale but he was implicated by the parties regarding the purported value the business in relation to the buyout. According to Christensen, he is a nominal defendant in this action, which was recently settled. Christensen was not a party to the settlement agreement. Christensen seeks $44,838.50 in attorney fees from plaintiffs. He asserts he incur...

Excerpt: ...�abuse of an elder or a dependent adult” as including “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” The Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, at 31-32, ruled that elder abuse under Welfare and Institutions Code section 15657 requires a culpability greater than mere negligence and is limited to acts of egregious a...

Excerpt: ...[s] and advertise[s]” the crackers “as ‘artisan' and charge[s] a price premium for it, even though the Product is not artisan by any stretch of the imagination.” (Ibid.) Plaintiff alleges she “purchased the Product in Summer 2019 at a Whole Foods in Sonoma County.” (Id. at ¶10.) “When purchasing the Product, Plaintiff relied upon the label ‘artisan' as well as the overall marketing of the Product as ‘artisan', and was led to be...

Excerpt: ...d Causes of Action in the Cross-Complaint; and Motion to Strike. Cross-Defendants allege that the first and second causes of action fail to state a claim upon which relief can be granted. They cite CCP section 430.10(e) and Bus. & Prof. Code sections 7159(7)(A) and 7159.6. They also bring a motion to strike pursuant to CCP sections 436 and 437, alleging that Exhibits 7, 8, and 13 should be stricken as they are illegible and that Exhibits 7, 8, 10...

Excerpt: ...oot retail building that Ms. Enkema leased to Mark and David Hoffman in 1994 which allowed the Hoffmans to operate Fircrest Market. In January 2009, the parties apparently entered into a Lease Renewal Agreement that renewed the original lease for 10-years on substantially the same terms. On or about December 19, 2014, the parties allegedly entered into a Second Lease Renewal Agreement which purported to grant the Hoffmans an option to purchase th...

Excerpt: ...; and, adjudication that plaintiff breached her duty of care regarding the amount of defensible space defendant owed plaintiff. Defendant opposes the motion. The court need not rule on the objections as they are not material to the disposition of this motion. (See CCP section 437c(q).) The motion is DENIED in its entirety. The operative pleading is the Fourth Amended Complaint (“4AC”) filed on July 26, 2019. It alleges that in 2015, defendant...

Excerpt: ...y 93 W, Whitefish, MT 59937, from September 1, 2018, through current, including but not limited to: The name of the host(s) of the property; all listed email address(es) of the host(s) of the property (9/1/18-current); the rental income payout method; the total dollar amount of payouts from 9/1/18- current; the nightly rate (range of rates, if applicable); the name of the financial institution where the rental income payouts go; the name of the i...

Excerpt: ...e tide of hate crimes.” Jones v. Kmart Corporation (1998) 17 Cal.4th 329, 338. Plaintiffs claim that Defendants are liable for violating civil rights under Civil Code section 52.1. Conduct violating, and thus exposing one to liability under, this statute must be “more egregious than mere negligence” and there will be no liability under this statute for conduct based on mere error. Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947,...

Excerpt: ...ands; (3) it seeks privileged or protected information; (4) it seeks irrelevant information; (5) the custodian of records is located more than 100 miles away; and (6) the patient holds the privilege and refuses to disclose the confidential communication between the patient and the physician. The matter is CONTINUED to March 18, 2020, at 3:00p.m., in Department 17, for meet and confer efforts. The court ordered this matter to the discovery facilit...

Excerpt: ...mary judgment. Defendant brings the motion under Code of Civil Procedure section 437c(a)(1) and on the grounds that there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Defendant's motion is based on three basic theories. First, Defendant contends that because Plaintiff has not produced a signed agreement, Plaintiff cannot properly “validate or verify” the alleged debt and is not entitled to r...

Excerpt: ...whistleblowing regarding his co-workers' misconduct. Requests for Judicial Notice The City's unopposed requests for judicial notice of the complaint and California Government Code §1031 are granted. Evidentiary Objections Plaintiff's objection to Paragraph 13 of and Exhibit “C” to the Masterson Declaration is overruled. The City's objection to the Williams, Krauss and Labno Declarations are sustained. The City's objection to excerpts of plai...

Excerpt: ...that defendants Aid for Starving Children, Monte Wilson, Joseph Spiccia, Jeffrey Baughman, Warren Hayes, Lane Phillips, and Paul Kelly have for years improperly reported and characterized Gift-in-Kind donations (primarily pharmaceuticals) as revenue, leading to misrepresentation of the percentage of dollars spent on donations actually going to feed starving children and their families. Specifically, paragraph 26 of the complaint states: From May ...

Excerpt: ...(together “Defendants”) for Breach of Contract, Fraud, Intentional Misrepresentation, Negligent Misrepresentation, Breach of Implied Covenant of Good Faith and Fair Dealing, Unfair Competition and Business Practices, and Common Counts (“Complaint”). The Complaint alleges that Plaintiff entered into a contract in California with for a luxury cruise which Defendants had no intention of fulfilling. It further alleges that Defendants, through...

Excerpt: ...o their CCP §998 offer to compromise. The stipulation called for the real property sale to have a listing price of $3,500,000 with a minimum sale price of $3,200,000. Additionally, the stipulated judgment provided that “the sale will be conducted by a real estate broker selected by the court or one mutually agreed to by the parties if such an agreement is reached…” (Ex. A to Kelly Decl.) Plaintiffs argue that defendants have refused to hon...

Excerpt: ...ds of the Gualala River as “Petitioner” or “P”; Respondent California Department of Forestry and Fire Protection as “Respondent” or “R”; and Real Party in Interest Gualala Redwood Timber, LLC as “RPI” or “Real Party.” Petitioner's and Respondent's Requests for judicial notice GRANTED. Petitioner's objection to RPI's “reply” is OVERRULED. Petitioner objects to RPI's reply in support of motion to discharge as violating t...

Excerpt: ...will consolidate the two actions. The parties have, despite the time for further briefing specifically for this purpose, provided the Court with no authority directly and specifically applicable to the key issues raised here, and the Court has not been able to find any. The laws governing care facilities and residential leases do not appear to apply to landlords of those licensees operating the facilities and they also contemplate unlawful detain...

Excerpt: ...TED as to request numbers 1-4 and DENIED as to request number 5. Richard Abel's objections to the declaration of Edward McCutchan are OVERRULED. Jim Nord and Dale Davis's objections are SUSTAINED as to Richard Able's Request for Judicial Notice Number 5 and are OVERRULED as to the remaining objections. It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the t...