Excerpt: ...oving party has the burden of demonstrating that plaintiff cannot establish at least one element of each cause of action at issue, each claim for punitive damages, an affirmative defense, or each issue of duty addressed in the motion, or there is a complete defense to each cause of action addressed. 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 c...

Excerpt: ... action is STAYED as to defendant Jacob Johnson based on his June 26, 2019 bankruptcy filing and September 3, 2019 Notice of Stay of Proceedings. (See, 11 U.S.C.A. §362(a)(1).) In this action defendant Mother Lode Brewing LLC, dba 101 North Brewing Company agreed to lease certain equipment from Innovative Lease Services, Inc. (“Innovative”) in exchange for payments over a 50-month term. Innovative subsequently transferred all “rights, titl...

Excerpt: ...ff against Defendants. State Fund brings the motion pursuant to Code of Civil Procedure section 387(d)(1)(A) and Labor Code section 3850 on the grounds that State Fund has an “absolute right” to intervene in this action based on the fact that it paid workers' compensation benefits to Plaintiff for his injuries in this action. State Fund previously filed a Notice of Lien on June 18, 2019 and an Amended Notice of Lien for $98,710.14 on October ...

Excerpt: ...le in the court's record. Demurrer Second Cause of Action: Elder Abuse Welfare and Institutions Code section 15610.07 defines “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 Code ...

Excerpt: ...the trust property that is the subject of this suit, citing Cal. Civ. Proc. Code §§ 367, 438(c)(l)(B)(ii), (2)(A), (d). The motion is DENIED. On December 27, 2018, plaintiffs Ethan Weiss and Palmer Weiss, Trustees of The 2004 Weiss Family Trust dated August 18, 2004 (“Plaintiffs”), filed their complaint for professional negligence (“Complaint”) against defendants PJC & Associates, Inc., Donald Whyte, and Anthony DeMartini. The Complaint...

Excerpt: ...ties as defendants, not subject to the judgment, should Plaintiff demonstrate proper authority and evidence demonstrating to the Court that it may do so and that to do so would be proper. Generally, a court's power to amend the judgment is very limited unless the error in the judgment was “clerical.” Code of Civil Procedure section 473(d); 7 Witkin, Cal.Proc. (5th Ed.2008) Judgment §§67-70. The court “may ... correct clerical mistakes in ...

Excerpt: ...n bad faith. (See Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98–99; Friedman decl., ¶ 11.) Defendants' counsel states he only concluded after the answer was filed and trial was set that Defendants may have viable causes of action against the Plaintiffs. (Friedman decl. ¶ 11.) The cross-complaint was filed without leave due to counsel's “eagerness to expedite the presentation of Defendants' cross-claims.” (Ibid.) No contr...

Excerpt: ...ule 3.769(f) requires notice of the final approval hearing to be given to Class Members. The declaration of Jennifer M. Keough does not have the served Notice attached. The declaration of Rebecca Call filed on September 30, 2019, states that the Court Authorized Notice of Class Action Settlement (“Notice”) was sent via first-class regular U.S. mail to the 37 Class Members but the attached Notice does not contain the date and time of the heari...

Excerpt: ...) failure to pay minimum wages; (2) failure to pay wages and overtime; (3) failure to provide meal periods or compensation in lieu thereof in violation of Labor Code § 226.7; (4) failure to provide accurate, itemized wage statements in violation of Labor Code § 226(a); (5) failure to provide all wages due upon termination; and, (6) violations of the unfair competition law: B&P section 17200 et seq. On August 1, 2017, Plaintiff filed a First Ame...

Excerpt: ...d actual or constructive notice of the condition in time sufficient to have taken preventative measures. See Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439-440. “The existence of a dangerous condition is ordinarily a question of fact but ‘can be decided as a matter of law if reasonable minds can come to only one conclusion.' ” Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347; quoted also in Mixon v. State of Californi...

Excerpt: ...ersuasive and is also persuaded by the circumstances and explanations that at no time did Plaintiffs bring this action for any improper purpose but instead brought it solely in an effort to obtain exactly what they ask for, reimbursement for their alleged expenses. Requests for judicial notice GRANTED with the exception of Defendant's Exhibit B. This is not from a court record and does not appear judicially noticeable. The Court accordingly DENIE...

Excerpt: ...granted. First, the court decides whether the moving party has made a threshold showing that the challenged cause of action is one “arising from” protected activity. (CCP § 425.16(b)(1).) The moving party in an anti- SLAPP motion has the burden of proof on this threshold issue. (Id. at 66.) If the court finds such a showing has been made, it then must consider whether the responding party has demonstrated a probability of prevailing on the c...

Excerpt: ... court previously sustained the Defendant's demurrer to the Plaintiff's second and third causes of action in the Second Amended Complaint (“SAC”) and granted its motion to strike. As a result, Plaintiff filed a Third Amended Complaint (“TAC”). The TAC alleges that Safeway's employees, the DOE Defendants, continued to grab and drag the Plaintiff as he cried out in pain. While the overall facts make it appear that the DOE Defendants were, i...

Excerpt: ... Vicks (2013) 56 Cal.4th 274, 314.) The Court denies Defendant's request for judicial notice of the “Prime Contract.” This construction defect case was filed in June 2016 and involves a single-family home in Healdsburg. The Court appointed a special master and recently continued the trial date to April 24, 2020. Meanwhile, the parties have been engaging in production of expert reports, home inspections, joint expert meetings and preparations ...

Excerpt: ...rial date is set, or 70 days before that trial date, whichever is nearer the date. The exchange must occur 20 days after the demand or 50 days before the initial trial date, whichever is later.” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 539.) Here trial was initially set for April 12, 2019 on July 27, 2018. As reasoned in Perry: “A party may not raise a triable issue of fact at summary judgment by relying on evidence that will n...

Excerpt: ... admit that he never represented Anthony Michalek with regard to the Underinsured Motorist Claim; that he was compensated for his work on the <0044004700030044000300 004800030044004a0055[eement with Anthony Michalek.” (Motion at 3:19-22.) Defendants contend that Plaintiff's objections to the discovery based on defective service are “without justification” and request $4,560.00 in sanctions, for their “reasonable costs and attorney fees”...

Excerpt: ...o purchase the Defendant's interest “for a price equal to ninety-five percent (95%) of the Appraised Value, as defined in subsection d of this Section 4.” (Restricting Agreement, ¶ 4.a.) The Appraised Value contains the requirement of an appraisal. (Restricting Agreement, ¶ 4.d.) Therefore, plaintiff did not make a counteroffer when she requested an appraisal. Rather, she was attempting to enforce the explicit terms of the Restricting Agree...

Excerpt: ...nd SACC at 7:23-25.) Plaintiff brings the motion under Code of Civil Procedure sections 435-437 and on the grounds that the allegation lacks factual support, is immaterial; hearsay; and “Defendant has no ability to prove the veracity of the quote…” (Motion at 4:18-21.) Defendant opposes the motion and argues it is procedurally defective because Plaintiff already moved to strike this same allegation in Defendant's First Amended Cross-Complai...

Excerpt: ...protected activity. The anti-SLAPP statute therefore does not apply to that claim. The other claim is based on the alleged malicious prosecution and related conduct at issue in the first cause of action. In large part for the reasons supporting the first cause of action, Plaintiff has provided sufficient evidence to show a probability of success as to that claim, as well. Requests for judicial notice are granted with the exception of Plaintiff's ...

Excerpt: ...ation may seek and the court may order, the appointment of a receiver for the substandard building pursuant to this subdivision. In its petition to the court, the enforcement agency, tenant, or tenant association or organization shall include proof that notice of the petition was served not less than three days prior to filing the petition, pursuant to Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civ...

Excerpt: ...Debtors have made no payments on the judgment. (Id. at ¶¶ 9-10.) This case is on calendar pursuant to CCP section 708.510 et seq., for Judgment Creditor's motion for an Assignment Order against Judgment Debtors. The court finds that the types of assets sought: trademark royalties, accounts receivables, and stock dividends are assignable and that it is appropriate to assign these rights as the Judgment Debtors owe a significant amount of money a...

Excerpt: ... on the issue or there exists one or more triable issues of material fact. Plaintiff's objections to the statements in the declaration of Susan Acquisto lines 4:28-5:1, 5:21-22, 5-22, and 7:18-19 as set forth in Plaintiffs' objections are sustained. The remaining objections are overruled. Defendant Healdsburg Senior Living's objection numbers 5, 1, and 15 are sustained. The remaining objections are overruled. The court has not reviewed Defendant'...

Excerpt: ...bership meeting of Sports Equity Partners, LLC was defective because it failed to comply with the LLC operating agreements and California Corporations Code section 17704.07(h)(1). (Petition, ¶23.) Is short, Rowley, a manager on the board, contends one agenda item described only as “Consideration of possible removal of a manager” was too ambiguous. He objected on that ground before the meeting. (Petition, ¶18.) Specifically, Rowley questione...

Excerpt: ...onal misrepresentation; (4) negligent misrepresentation; (5) negligence; (6) elder financial abuse; and (7) violation of Business and Professions Code §17200, et seq. Plaintiffs seek damages as well as injunctive relief. Nationstar demurs to all plaintiffs' claims on the ground that they have failed to state a cause of action. Nationstar's unopposed request for judicial notice of recorded documents is granted. As an initial matter, the court not...

Excerpt: ...laintiffs' original complaint, and therefore withdraw this demurrer only as to Plaintiffs' IIED cause of action.” (Reply at 3:9-12.) Thus, the demurrer on the IIED cause of action is moot. Defendants also move to strike Plaintiffs' request for punitive damages and the related allegations. Defendants bring the demurrer pursuant to Code of Civil Procedure section 430.10(e) and argue that the FAC fails to allege sufficient facts to state a valid c...

Excerpt: ...r $6,603.76. <0057004c00520051000300 004c0051005700500048[nt of receiver. Plaintiff brings the motion pursuant to Code of Civil Procedure sections 564(b)(3) and 708.630 and requests that the Court appoint Michael Brewer as receiver to “seize property of the judgment debtors so as to be able to collect on its judgment herein” and “[i]n particular…to seize and sell liquor license number 580881 to satisfy the judgment entered in this case.�...

Excerpt: ...e any applicable authority in support of the motion but asks the Court to “enter this Motion To Dismiss for Failure to State a Claim for which relief can be granted, and to order the Plaintiff to settle any <0003000b00300052005700 001d0015001900100015[7.) Plaintiff opposes the motion and contends that the complaint alleges sufficient facts to <002400470047004c005700 00030033004f0044004c[ntiff avers that Defendant cannot bring a general demurrer...

Excerpt: ...n is DENIED, without prejudice, based on the procedural defects in the motion. Specifically, California Rules of Court, Rule 3.1345 states in part that “[a]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement” and the separate statement must be a “separate document filed with the discovery motion” and must include “[t]he text of the request, interrogatory, ...

Excerpt: ... solely as Trustee for Harborview Mortgage Loan Trust Mortgage Loan Pass-through Certificates, Series 2007-4 (together “Defendants”) oppose the motion. Defendants' request for judicial notice of the Verified Complaint for Unlawful Detainer filed in Case No. MCV-247020 is granted. Plaintiffs' action is barred by collateral estoppel. The stipulated judgment in the related unlawful detainer action brought by Deutsche Bank against plaintiffs coll...

Excerpt: ...rt denied that motion after the August 2018 hearing because the evidence clearly demonstrated that the Defendants had transferred ownership in 2016, so could not be liable for conduct occurring after that date, and because they had in fact given notice of the change within the time required. This time, Plaintiff argues that Defendants failed to submit the required testing reports for the testing required by the stipulation in 2014 and 2015, and f...

Excerpt: ...s sale of plaintiff's real property <0057004b00480003004600 00560048005400580048[ntly issued a written ruling denying plaintiff's motion for a preliminary injunction. The court found plaintiff had failed to establish she would prevail on the merits. Plaintiff filed the FAC shortly thereafter. The FAC appears largely the same as the <0047004800470003002d00 0026004b004400560048[ Bank, NA as a defendant. Plaintiff's claims against defendants general...

Excerpt: ..., collectively (“Defendants”). The complaint asserts causes of action for breach of contract; fraud; declaratory relief; rescission; cancellation; and money had and <0056004800570057004f00 00560053005800570048[ and Plaintiffs granted Defendants multiple extensions to respond to the complaint. When those settlement negotiations failed, Defendants filed an answer on August 30, 2017. On December 21, 2017, multiple plaintiffs separately served fo...

Excerpt: ... with his reply. Marc and Mary Durand are married but legally separated. The judgment of legal separation deems the real property where their family home was located as Ms. Durand's separate property. The residence was later destroyed by fire. Plaintiff claims an insurable interest in the insurance proceeds. He filed this action to recover a portion of the insurance money and he now moves to disqualify Mr. Culver from representing Ms. Durand. It ...

Excerpt: ...d substandard work, Plaintiff was required to hire a new contractor to finish the job. Prior to Plaintiff's complaint being filed, Plaintiff apparently posted a “negative Yelp! review…disparaging and defaming Defendant…” (See, Opp. at Ex. 1.) On November 14, 2018, in response to this negative review, Defendant's attorney, Sheri Chlebowski, sent a cease and desist letter to Plaintiff. The letter states in part “[p]lease be advised that m...

Excerpt: ...tion [1] for terminating sanctions is GRANTED. Susan Dean Ridge is the only remaining plaintiff in this action. Pursuant to CCP§2023.030(d), FPI Management moves for terminating sanctions on the ground that Ridge has disobeyed two prior court orders to respond to discovery and pay monetary sanctions. FPI Management further asserts that it first propounded written discovery over a year ago, Ridge has repeatedly missed deadlines, delayed the progr...

Excerpt: ...wes no such debt. When Cedars contacted defendant on December 17, 2018 via letter trying to collect on the debt, defendant found Cedars website and emailed a request to customer service for details and documentation to support the claim. He received no response so he emailed Cedars again on December 20, 2018 and January 15, 2019. He also went online to learn more about Cedars and contends he discovered that many customers had left reviews claimin...

Excerpt: ...l estate agent and list the Property for sale.” (Interlocutory Judgment at 2:26-3:2.) The judgment continued that “Plaintiffs, upon entering a contract for the sale of the Property, are hereby directed to report to this Court regarding the proposed sale, and, on confirmation of the sales contract and sale of the Property by this court and the payment of the purchase price thereof, plaintiffs are hereby authorized and directed to execute and d...

Excerpt: ... of entry of the order ruling on the motion.” The court may, on noticed motion and for good cause shown, order that specified discovery be conducted notwithstanding the statutory stay. In order to satisfy the good faith requirement, plaintiff must at least make a prima facie showing as to the elements of the claim for which no discovery should be needed. Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1349. Here, Plaintiff failed to meet...

Excerpt: ...ions and, specifically, the purported copy of the loan agreement which Plaintiff attached to the complaint. These show, in brief, that Beyond the Glory Sports Bar & Grill, Inc. (“the Bar”) entered into the loan agreement, Defendant Monica Lynch (“Monica”), the only Defendant who has not defaulted, signed the agreement and personally as personal guarantor of the Bar's debt, the money was provided to Defendants pursuant to the agreement, De...

Excerpt: ...ive means exist to achieve the overriding interest. Plaintiff merely wants to redact certain information in the Business Agreement (“Agreement”) and the DeLuca declarations provide both an unredacted version which Plaintiff wishes to seal and a redacted copy as Plaintiff wishes to file it unsealed, with the specific portions redacted. The redacted portions amount to only a few small parts of one page of the three-page document. These portions...

Excerpt: ...f documents and post- judgment special interrogatories and for monetary sanctions. The Motion is GRANTED, except that as a pro per party, Judgment Creditor may only recover the $90 in costs incurred as sanctions. Judgment Creditor sufficiently demonstrates that he served the special interrogatories and request for production of documents on Judgment Debtors on January 30, 2019, and that despite making efforts to meet and confer, Judgment Debtors ...

Excerpt: ...edure section 1005, subdivision (c), and, was not received until August 19, 2019. Although Defendants contend that this reduced their time to respond, they do not contend that there was any specific prejudice and they go on to address the merits of the Opposition. The Court therefore DENIES the request to disregard the Opposition. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 (“In this case, as indicated, despite his claim of inadequate serv...

Excerpt: ...actor, and Steve Dale, the project manager (collectively “Cross-Defendants”) based on their alleged negligent construction of the parking area. Specifically, Defendant contends that during recent depositions, Defendant learned for the first time that the construction deviated from the plans in that instead of installing a “line of manicured bushes with many light bulbs,” Cross-Defendants built “a wall with some crawling plants but witho...

Excerpt: ...anctions which had previously been ordered against Defendant. In exchange, Plaintiff agreed to release all claims under Code of Civil Procedure section 1542. The settlement was put on the record before the Court and all parties acknowledged their agreement to the terms. Thereafter however, Plaintiff refused to comply. Thus, on June 10, 2019, Defendant filed a motion to enforce the <004c005200510003001900 0044004c00510057004c[ff did not file a tim...

Excerpt: ... covenant of good faith and fair dealing, which the Court sustained with leave to amend, Plaintiffs filed the presently operative First Amended Complaint (“FAC”) against Fire Insurance Exchange (“FIE”), Farmers Insurance Company (“FIC”), and Brian Delaney (“Delaney”) with causes of action for: 1) breach of contract (against all Defendants); 2) breach of the covenant of good faith and fair dealing (against FIE and FIC); 3) insuranc...

Excerpt: ...e motion, Defendant claims that he is trustee of his mother's trust and that Plaintiff was trespassing on the property that he has responsibility to maintain. (Motion at 2:2-5.) Defendant contends that Plaintiff trespassed on the property; changed the locks; boarded up the doors and that after Defendant gained access to the property Plaintiff attacked him and tripped <0051005600480011000300 0b[Id. at 2:5-10.) Thereafter, Plaintiff apparently file...

Excerpt: ...t motion is GRANTED in part and DENIED in part and the second motion is DENIED, as set forth below. I. The Motion to Compel re: Interrogatories and RFAs If a party to whom interrogatories were directed fails to serve a timely response, the responding party waives all objections, including those based on privilege and work product protection, and the propounding party may move for an order compelling responses. CCP §§ 2030.290(a),(b); see also S...

Excerpt: ... arbitration and stay proceedings in this motion until the arbitration is complete. In its Notice of Motion, Defendant states it is bringing the motion pursuant to Code of Civil Procedure section 1281, et seq. and California Rules of Court, Rule 3.1330. (Notice at 2:9-11.) However, in the Points and Authorities, Defendant contends that “because the relevant arbitration agreement involves interstate commerce, the Federal Arbitration Act (“FAA�...

Excerpt: ...d Rebecca Call as Class Representative; (d) name JND Legal Administration as Claims Administrator; (e) approve the Class Notice to be sent to the Settlement Class; and (f) schedule a final approval hearing date (the “Motion”). The parties are required to APPEAR to address the issue described in section III below. I. The Complaint The presently operative First Amended Complaint (“FAC”) alleges that Defendant misclassified its Image Reviews...

Excerpt: ...client's employer's insurer. In the TAC, Plaintiff alleges that Defendant breached a fiduciary; legal; and ethical duty to inform Plaintiff of a settlement of client's underinsured motorist <0049004800510047004400 004c0051005700480051[tional and/or negligent misrepresentations to Plaintiff regarding Defendant's intent to inform <0048000300580051004700 00470003005000520057[orist claim and regarding the “status of Plaintiff's lien.” Plaintiff c...

Excerpt: ...and Moore v. Liu (1999) 69 Cal.App.4 th 745 that she must demonstrate that on the merits her motion to strike would have been granted. This court is not persuaded that the motion to strike would have been granted because the court does not find that the amended cross complaint (“ACC”) of Daniel Cortright (“Cortright”) arose from an “act in furtherance of a person's right of petition or free speech under the United States or Californ...

Excerpt: .... The Motion is DENIED. I. Procedural History Defendant served a CCP § 998 offer to Plaintiff by mail on March 29. See Clipner Decl. ¶ 2 & Ex. A. It states that Defendant offers to Plaintiff to compromise Plaintiff's claims against it pursuant to CCP § 998 in accordance with the following terms and conditions: “1. That Plaintiff dismiss, with prejudice, her lawsuit in its entirety, against Defendant; 2. That in return for said dismissal, wit...

Excerpt: ...1 is DENIED. The unopposed requests for judicial notice are granted. The court declines to rule on the parties' evidentiary objections as they are not material to the court's ruling on this discovery motion. As an initial matter, Maciel failed to file a separate statement in support of his motion to quash as required under California Rules of Court, Rule 3.1345(a)(5). It is within the court's discretion to deny the motion for his failure to compl...

Excerpt: ...sburg Hospital on March 10, 2017. The FAC has causes of action for: 1) negligence; 2) willful misconduct; 3) negligent infliction of emotional distress; 4) intentional infliction of emotional distress; 5) fraud; and 6) elder abuse. This matter is on calendar for the motion by Defendant to compel plaintiff Sherri Gard to post a bond or undertaking to secure an award of costs in the amount of $77,550.58 pursuant to Cal. Code Civ. Proc. (“CCP”) ...

Excerpt: ... on calendar for Judgment Creditor's motion to compel Defendant to respond to his post-judgment requests for production of documents (“RPODs”) and post- judgment 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. If a party to whom interrogatories were directed fails to serve a timely response, the respondin...

Excerpt: ...ar for the motion by Plaintiff for summary adjudication pursuant to Cal. Code Civ. Proc. (“CCP”) § 437c as follows: 1) on Plaintiff's first cause of action for breach of fiduciary duty on the basis that Defendant breached its fiduciary duties because its evaluation of Plaintiff's request for approval of his construction project was unreasonable, arbitrary, and capricious (Cal. Civ. Code (“CC”) § 4765(a)(2)); and 2) on Defendant's sixth ...

Excerpt: ...s favor on December 11, 2017. On September 15, 2017, Plaintiff filed the complaint in this action and asserts causes of action to quiet title and for declaratory relief against Phan and the County of Sonoma. The complaint is based on Plaintiff's allegations that the County “erroneously assessed taxes on the Property;” Plaintiff's failure to pay the erroneously assessed taxes; the County's subsequent tax sale of the property to Phan at a publi...

Excerpt: ...January 2014 of cracking in the walls and floors of Building D, as well as significant discoloration of the floors and significant floor sloping. Lucas filed a cross-complaint which includes causes of action against certain defendants it characterizes as “subcontractor defendants,” a category which includes cross-defendant RE West Builders, Inc. As against defendant RE West Builders, Inc., Lucas's cross-complaint contains causes of action for...

Excerpt: ...ome for profit. Per the Stewarts, they would have negotiated a higher sale price had they known investors were involved. Defendants demur on the ground that the Stewarts have failed to state a cause of action for breach of contract because they have not identified whether the alleged contract is written or oral; what the terms of the contract are; any facts constituting a breach of that contract; or any recoverable contract damages. Defendants al...

Excerpt: ...use of action.” This matter is now on calendar for Defendants' motion to strike the punitive damages allegations/cause of action and prayer for relief pursuant to Cal. Code Civ. Proc. (“CCP”) §§ 435, 436. The Motion to strike the “Third Cause of Action” (FAC ¶¶ 17-25) and Prayer for Relief ¶ b. is GRANTED without leave to amend. Plaintiffs' relevant allegations are as follows: Defendant King, as a commercial driver for the other de...

Excerpt: .... Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129;Bogard v. Employers Casualty Co. (1985) 164 Cal. App. 3d 602, 618. A party may not attack a remedy on a demurrer and may demur only to the cause of action itself. Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562. See also Caliber Bodyworks, Inc. v. Sup. Ct. (Herrera) (2005) 134 Cal.App.4th 365, 385; Weil&Brown 7:42.1. After all, the statute, Code ...

Excerpt: ...rocedure section 438(c). When brought by a plaintiff, a motion for judgment on the pleadings must be based on the assertion “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to <0003005200490003002600 00460048004700580055>e section 438(c)(1)(A). Otherwise, the rules governing demurrers basically apply. Cloud v. Northrop Grumman Corp. (1998) ...

Excerpt: ...o. v. Sup. Ct. (1985) 173 Cal.App.3d 274, 280-281. Defendant argues that the California Sherman Food, Drug, and Cosmetic Law (Health & Saf. Code, §§ 109875 et seq.) (“Sherman Law”) provides for no private right of enforcement but Defendant cites no directly applicable authority. In fact both state decisions such as Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, at 1095-1099, and federal decisions such asBrazil v. Dole Food Co., Inc. (N.D....

Excerpt: ...usion on the merits of the motion. The objections to the new evidence submitted in the Clifford and Coombs transcripts supplied with the Robinson reply declaration are SUSTAINED. This is improper new evidence provided in reply. In any case, this new evidence would not change the outcome of the motion. Except to the extent that it relies on the cited new evidence, the reply separate statement is not objectionable, merely poses arguments and respon...

Excerpt: ...s lack specificity. In particular, Defendants argue that the SAC fails to allege any facts that establish that any of the Defendants knew that the alleged misrepresentations were false, or that the promises were made without any intention to perform. Defendants argue that the generalized allegations that Defendants “knew these statements to be false and that the statements were provided to her with the intent to induce her to invest in the Fund...

Excerpt: ...r Kenneth A. Giorgi (“Judgment Debtor”) to assign to Judgment Creditor “payments due and owing to him from Georgi Electric.” The Motion is DENIED. Judgment Creditor seeks an assignment order because the money Judgment Debtor is receiving as a self-employed contractor “cannot be obtained via a traditional wage garnishment.” Motion at 4:3-5. See also See Moses v. DeVersecy (1984) 157 Cal.App.3d 1071, 1073 (self-employed CPA is not an �...

Excerpt: ...to slash the fee award because he believes defendants' counsel “block billed.” Plaintiff also unnecessarily attacks defendants' counsel's integrity. On that note, Defendants' evidentiary objections to the declaration of Plaintiff's counsel Rivers are sustained. “California case law permits fee awards in the absence of detailed time sheets. (Sommers v. Erb (1992) 2 Cal.App.4th 1644, 1651 [4 Cal.Rptr.2d 52]; Dunk, supra, 48 Cal.App.4th at p. ...

Excerpt: ...the challenge complaint or be based on facts which the court may judicially notice." (County of Los Angeles v. Commission on State Mandates (2007) 150 Cal. App. 4 th 898, 911.) <0051004700440051005700 00470003004900520055> and was issued an American Express card (hereinafter "card") currently ending in 1005 for the purposes of obtaining goods and/or services, and/or cash advances from any person who accepts the card." (Complaint a...

Excerpt: ...fendant”), seeking to recover real and personal property in the possession of BV Guild and related declaratory relief. This matter is on calendar for the motion by Defendant for summary judgment, or in the alternative, summary adjudication of each cause of action pursuant to Cal. Code Civ. Proc. (“CCP”) § 437c, on the grounds that: 1) “The California State Grange, the 2016 Corporation, is Not a Real Party in Interest Because its Sole Fun...

Excerpt: ...compel each of the Defendants to respond to his post-judgment requests for production of documents (“RPODs”) and post- judgment special interrogatories (“SIs”) and for monetary sanctions. The Motion is GRANTED, except that as a pro per, Judgment Creditor may only recover the $60 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. ...

Excerpt: ...ing wildfire) and then refused to re-let to him despite the fact that he had lived at the subject premises, a Motel 6 in Rohnert Park, for more than six years. This matter is on calendar for the motions by G6: to compel Plaintiff to provide responses to its first set of Form Interrogatories (“FIs”), Special Interrogatories (“SIs”), and Requests for Production of Documents (“RPODs”); to deem matters set forth in the first set of Reques...

Excerpt: ...ntified any prejudice she suffered from the purported defects, if any. Accordingly, the Court will rule on Miller's motion. <0003005300550052004500 005200510003005a0044[s later filed by decedent's sister Debra Rosmarin (“Rosmarin”). Decedent's friends Sue Thor and Anita Veltre also filed probate petitions in the case. Rose Miller is decedent's surviving spouse and Rosmarin, Thor and Veltre claim in their probate petitions that the version of ...

Excerpt: ...he second cause of action for breach of fiduciary duty pursuant to Cal. Code Civ. Proc. (“CCP”) § 430.10(e) on the basis that it fails to state facts sufficient to constitute a cause of action. The demurrer is SUSTAINED with leave to amend. I. The FAC and the Demurrer The FAC alleges in relevant part that beginning at least five years prior to the filing of the FAC, and continuing thereafter, Magelitz agreed to and did act as “an insurance...

Excerpt: ...concedes that the first cause of action is invalid against Defendant Michael Rosetti (“Rosetti”) and has stated that Plaintiff will dismiss that cause of action. Unless Plaintiff has already done so, the Court also hereby sustains the demurrer to that cause of action solely as to Rosetti. Defendants attack the first cause of action for breach of the covenant of good faith and fair dealing by arguing that this cause of action cannot be based o...

Excerpt: ...motion was granted per order entered on April 5, 2017 appointing Michael Brewer as receiver (“Receiver”). This matter is now on calendar for the Receiver's motion pursuant to Cal. R. Ct. (“CRC”) 3.1184 for an order: 1) approving his Final Report and Accounting, which reflects fees in the amount of $1,331.07; 2) discharging him; 3) terminating the receivership; and 4) abandoning books and records. CRC 3.1184(a) provides that a receiver mus...

Excerpt: ...ERRULED. All requests for judicial notice are granted. 1 st COA: Violation of CEQA Petitioners contend that CEQA review was completed and that Respondents improperly rejected the applications for three single family homes, the 149 Project, 228 Project, and 227 Project (collectively, “the Projects”) on “erroneous” grounds under CEQA, improperly determining that the Projects did not comply with CEQA and thus improperly failing to decide in ...

Excerpt: ... in this case.” (See, May 31, 2019 Court Minutes, citing, Cal. Prac. Guide, Civ. Proc. Before Trial (Rutter 2018) Chap. 2-B, 2:28.1.) There is no indication in the record that Plaintiff has retained an attorney or that a guardian ad litem has been appointed in this case. The demurrer is brought pursuant to Code of Civil Procedure sections 430.10 and 430.30 and on the grounds that the FAC fails to state facts sufficient to state a valid cause of...

Excerpt: ...However, while the attorney fees and costs awarded in a recent lemon law case in the Sonoma County Superior Court involving the same counsel may be relevant here, the court notes it is not bound by a trial court's decision. “[A] written trial court ruling has no precedential value.” (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4 th 819, 831.) The court finds reasonable rates in this community for attorneys who have approxima...

Excerpt: ...018 debtor's exam, and a civil bench warrant was issued on September 6, 2018 commanding her attendance on December 10, 2018. Although there was no proof of service on file, the minutes of the December 10 hearing reflect that Judgment Debtor made a late appearance and notified the clerk of potential bankruptcy proceedings, and that the matter was set for hearing on March 4, 2019. Another civil bench warrant was issued on February 6, 2019. The minu...

Excerpt: ...ts for an order for entry of judgment, the parties appeared for trial on May 17, 2019. The minutes from the trial date reflect that Plaintiffs requested entry of judgment against defendant Kimco and dismissal against defendant Porter pursuant to the terms of the March 5, 2018 settlement agreement (“Settlement Agreement”), that the Court found in favor of Plaintiffs and against Kimco in the amount of $25,000 with interest in the amount of $1,0...

Excerpt: ...of accessories, fees, surface protection products, service contract, license and registration fees, and sales tax. According to the Complaint, Plaintiff tendered the vehicle for the first time at 523 miles due to defects with the paint and windshield, and then subsequently tendered the vehicle several more times for other nonconformities which were not remedied, culminating in a January 30, 2018 demand for repurchase. The case settled pursuant to...

Excerpt: ... and does not remember ever obtaining or using it. He uses this evidence to dispute each of Plaintiff's proffered facts. This is sufficient to create a triable factual dispute because Plaintiff provides evidence showing that Defendant obtained the credit account and incurred a debt while Defendant provides evidence showing that he did not. The Court notes that in part Defendant's evidence is couched in terms of what Defendant remembers, specifica...

Excerpt: ...-PI-001(3)) and premises liability (PLD-PI-001(4)). This matter is on calendar for the demurrer by Defendants pursuant to Cal. Code Civ. Proc. (“CCP”) § 430.10(e) to the entire Complaint generally, and to the intentional tort and premises liability causes of action in particular, on the basis that they fail to state facts sufficient to constitute a cause of action. The Demurrer is SUSTAINED WITH leave to amend. The Complaint alleges that on ...

Excerpt: ...he face of the FAC or matters subject to judicial notice…” (Court's May 22, 2019 Minute Order.) In that Minute Order, the Court pointed out that Defendant had not asked the Court to take judicial notice of Plaintiff's Government Tort Claim; Defendant's Notice of Rejection; or the fact that the rejection was in writing or in compliance with Government Code section 913. (Ibid.) The Court noted that without these documents, the “purported stat...

Excerpt: ...e states he cannot do so if his ingress and egress is blocked by McCharen's vehicle. Obert previously filed a quiet title action against McCharen, which was resolved by a formal settlement agreement between the parties in January 2019. Per the agreement, McCharen was to remove a gate across the easement, part of a deck, a wood pile and some fencing that encroached on Obert's property. McCharen states in her declaration that her parcel is landlock...

Excerpt: ...he Complaint, Mr. Corbit's four adult children (“Plaintiffs”) assert various causes of action against Federal Express and Ms. Berry (collectively “Defendants”) related to the accident and allege in part that while driving a Federal Express van, Ms. Berry caused the accident by failing to stop at a stop sign, in violation of California Vehicle Code section 21802(a). This matter is on calendar for Defendants' motion to quash two deposition ...

Excerpt: ...7, 2019. When no dismissal was filed, on March 7, 2019 the Court issued an Order to Show Cause why monetary sanctions should not be imposed and/or why the action should not be dismissed for failure to comply with Cal. R. Ct. 3.1385(b) in that Plaintiff failed to file a dismissal after a notice of settlement (the “OSC”). The OSC required Plaintiff to appear on May 9, 2019 and to file a Case Management Statement not later than fifteen calendar ...

Excerpt: ...y made clear that the Court was not going to impose them and yet Defendant failed to appear to challenge the ruling as to that issue, which she could have done. Defendant fails to explain why she did not, or could not, have done so. In any case, even if the Court were to reconsider the ruling, it would not alter the ruling in any way and finds that the ruling was correct. The Court had discretion not to impose such sanctions and the Court finds t...

Excerpt: ...on the pleadings, Plaintiff has failed to cure the defects which this Court noted. The only changes Plaintiff made to this cause of action are at ¶¶`16- 18 and consist of minimal additional, and largely conclusory, allegations of a special relationship; use of specific terminology such as “the Biakanja factors”; and further, though largely repetitive, allegations of delay and Defendant's use of inaccurate information violating the duty of c...

Excerpt: ...with a “Gross Settlement Fund” of $135,000 to pay $45,000 in attorneys' fees, a maximum of $6,000 in costs, a $5,000 award to the named Plaintiff as class representative, payment to the California Labor and Workforce Development Agency of $1,875 as civil penalties, administration costs of $8,000, and the remainder, $69,125, as the net settlement fund to be paid to the class members with shares based on the number of weeks that each member wor...

Excerpt: ...ies' relationship existed solely through Piner, a California Corporation, and therefore, the “partnership” statutes are irrelevant. Additionally, Parikh contends that under Corporations Code section 16202, a partnership cannot exist when a corporation is formed. Further, Parikh's demurrer to the fourth cause of action for “Judicial Expulsion of Parikh and Doe Defendants as Members of Piner's Board of Directors” under Corporations Code sec...

Excerpt: ...v. Proc. (“CCP”) 473(a)(1). Plaintiff shall file and serve the [Proposed] Fourth Amended Complaint (Russo Decl. Ex. A) within five (5) days of entry of the order granting this Motion. Plaintiff's discovery motion is GRANTED in part and DENIED in part. The Notice of Motion states that it seeks to compel further responses to Plaintiff's first set of form interrogatories. The Separate Statement filed pursuant to Cal. R. Ct. 3.1345 makes clear th...

Excerpt: ...0 00030044005100470003[David only intended to settle the action with named defendants and intended to pursue the case against his sister and co-plaintiff, Priscilla. David contends there is “good cause” not to dismiss the case based on his attorney's declaration of fault, which states in part “[u]nfortunately, through my error, I prepared or caused to be prepared and submitted an ‘Unconditional Notice of Settlement of Entire Case” form ...

Excerpt: ... a court ruling issued in Sonoma County Superior Court case SCV-255664 is granted. Plaintiff's unopposed request for judicial notice is granted. The court notes that it only takes judicial notice of the fact the documents were filed or particular orders were made. The court does not take judicial notice of the truth of the matters asserted in the documents. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) This is a legal malpractice action al...

Excerpt: ...ent pursuant to Cal. Code of Civ. Proc. (“CCP”) § 437c on the grounds that there is no triable issue of material fact and Plaintiff is entitled to judgment as a matter of law. The unopposed Motion is GRANTED. The elements of Plaintiff's cause of action for breach of contract are “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintif...

Excerpt: ...Gift Trust (MRV). Defendant contends that he is seeking damages in excess of the judgment herein. Defendant has filed a lawsuit against MRV and its principals for indemnity, arguing that the judgment obtained by Lonich was due to MRV's improper acts in agency. MRV responds, contending that the parties are not the same in both litigations. MRV notes that while it is a named Defendant in the Sacramento Litigation, it is the assignee of the judgment...

Excerpt: ...l each of the Defendants to respond to his post-judgment requests for production of documents (“RPODs”) and post-judgment 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. C...

Excerpt: ...e to their experience and expertise in this area of law and that the settlement was an “excellent result.” In opposition, Defendant argues that this matter was a “routine lemon law matter” that does not merit the amount of fees sought by Plaintiff. Defendant argues that despite its routine nature, the matter took “twenty months” to resolve. Defendant notes that Plaintiff failed to counter the first § 998 offer, and only when a second...

Excerpt: ... Nursing Officer (“CNO”) for defendant Aurora Behavioral Healthcare-Santa Rosa, LLC(“Aurora”). Brooke alleges she was wrongfully terminated after six months and suffered retaliation from Aurora for internal and external whistleblowing primarily related to hospital staffing levels. Defendants Aurora and Signature Healthcare Services, LLC now move for summary judgment of Brooke's claims, or in the alternative, summary adjudication of the fo...

Excerpt: ...nds for that relief, as well as the steps Plaintiff has taken since the issuance of the relevant orders, the Court issued an order on May 2, 2019 setting forth the procedural history of the Motion and posing eleven specific questions to Plaintiff. That order solicited briefing of no more than 12 pages from Plaintiff (“Plaintiff's Brief”) and permitted a response by defendant Shear Builders, Inc. (“SBI”) of no more than 12 pages (“SBI's ...