Excerpt: ...hen Plaintiff Tammy Panarites, a disabled person, was struck by a motor vehicle in a parking lot owned, managed, maintained and/or controlled by the D'Costa Defendants on February 23, 2016 when she was walking to the building entrance. She alleges that the D'Costa Defendants are liable for her injuries because they failed to provide the required extra-wide, ADA-compliant and curbless parking spots near the entrance; Paul Panarites was forced to p...

Excerpt: ... CC section 2923.7; 3) breach of contract; 4) breach of the implied covenant of good faith and fair dealing; 5) negligence; 6) negligent infliction of emotional distress; 7) declaratory relief pursuant to CC section 2924.12; 8) violation of CC section 2937; 9) unfair business practices (violation of Bus. & Prof. Code (“B&PC”) § 17200 et seq.); and 10) for an accounting. This matter is on calendar for the demurrer by Wells Fargo pursuant to C...

Excerpt: ...according to proof” which is specifically directed at the “[p]roceeds of sale of real property for Lynda Maye in control of Stephen Olson Partition Referee arising out of May v. Rangel; Sonoma County Superior Court Action No.: SCV-260596.” The Application is DENIED without prejudice, for failure to demonstrate the amount to be secured by the attachment. “Attachment is an ancillary or provisional remedy to aid in the collection of a money ...

Excerpt: ...ntiff filed his initial complaint in pro per. The court overruled Defendant's demurrer to Plaintiff's negligence claims and sustained the demurrer to the remaining claims, with leave to amend. Plaintiff filed a first amended complaint in pro per, and then after he obtained counsel the parties stipulated to the filing of the currently operative second amended complaint (“SAC”). The SAC contains causes of action for: 1) direct and vicarious neg...

Excerpt: ...he settlement checks were being prepared and would be sent to Plaintiffs. Accordingly to the Plaintiffs, it was not until February 6, 2019, that the defense first stated that the checks would not be sent without the signing of further documents. Therefore, the Court has made a proportional reduction of attorney fees from 14.4 hours to 10 hours, plus costs and fees. The award is against Defendant and his attorney as requested in the motion. The re...

Excerpt: ...ly when the plaintiff discovers, or through reasonable diligence should have discovered, the injury and its negligent cause. Leaf v. San Mateo (1980) 104 Cal.App.3d 398, 407. It has been well established that this standard applies to claims for professional medical negligence under Code of Civil Procedure section 340.5. See Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391; Barber v. Sup. Ct (1991) 234 Cal.App.3d 1076. The failure to allege da...

Excerpt: ... were breached: Defendants issued policies which provided coverage in the form of monetary compensation to pay for repairing or rebuilding the improvements in the case of damage thereto; Defendants failed to pay funds sufficient to cover the rebuilding of the property improvements as allegedly provided in the policies; Plaintiffs state that Defendants failed to pay benefits due under specific coverage provisions which they list. See, e.g., FAC ¶...

Excerpt: ...arily on objector Susan Mills' deposition testimony in which she states she met with Norton and Johnston on decedent's behalf, petitioners argue that decedent was the client of Norton and Johnson. Norton contends that Mills is her client, but Johnston appears to agree with petitioners. Johnston states in his declaration that: “It is my belief that Mills was the authorized representative of Silvestri at the time I met with her. Further, it is my...

Excerpt: ... second, third, fourth and sixth causes of action on the grounds the claims are barred by the respective statutes of limitations. The parties appear to agree that the statute of limitations applicable to these causes of action is 3 years, except for the second cause of action which is five years from the act or transaction or 2 years after discovery. In order to get around the respective statutes of limitations, Plaintiff attempts to plead the di...

Excerpt: ...nce Code (“EC”) section 723, and the Court's inherent authority, to preclude or limit Plaintiffs' designation of the following experts: Rene A. Castaneda (mechanical engineer); V. Paul Herbert (commercial vehicle safety); Jason Fries (forensic animation/3D laser scanning, video analysis, line of site, and trajectory analysis); and Mariusz Ziejewski (human dynamics/kinematics/biomechanical engineering); and 2) Plaintiffs' motion for leave to a...

Excerpt: ...heets incurred permanent injuries as a result of the drug's “unreasonably dangerous and defective characteristics” and defendants' “failure to warn” potential users, including the U.S. Navy, of these known side effects. Ms. Sheets asserts a cause of action for loss of consortium based on allegations that she “has been, and will continue to be, deprived of the consortium, society, comfort, protection, and service” of Mr. Sheets. Plaint...

Excerpt: ...released half the fire insurance proceeds to defendant Mary Durand pending trial on plaintiff's claim that he holds an insurable interest in the proceeds along with Ms. Durand. It was undisputed that Ms. Durand was entitled to at least half the proceeds. Plaintiff now moves to have the remaining half of the insurance proceeds released to him pending trial. However, the parties are not similarly situated. Plaintiff was a named insured on the polic...

Excerpt: ...prevailing” party is the party who recovered greater relief in the action on the contract. Here, plaintiff recovered greater relief and achieved his litigation objectives by reducing the May 2016 promissory note amount, cancelling the April 2016 promissory note, expunging the short form deed of trust and assignment of rents recorded against the Spring Street property and expunging the notice of default recorded against the County Manor property...

Excerpt: ...prevailing” party is the party who recovered greater relief in the action on the contract. Here, plaintiff recovered greater relief and achieved his litigation objectives by reducing the May 2016 promissory note amount, cancelling the April 2016 promissory note, expunging the short form deed of trust and assignment of rents recorded against the Spring Street property and expunging the notice of default recorded against the County Manor property...

Excerpt: ...prevailing” party is the party who recovered greater relief in the action on the contract. Here, plaintiff recovered greater relief and achieved his litigation objectives by reducing the May 2016 promissory note amount, cancelling the April 2016 promissory note, expunging the short form deed of trust and assignment of rents recorded against the Spring Street property and expunging the notice of default recorded against the County Manor property...

Excerpt: ...nnot be supported by a claim for reformation. (Citing R&B Auto Ctr., Inc. v. Farmers Group, Inc. (2006)140 Cal.App.4th 327, 353.) Further, Defendants argue that the 5AC's allegations that Defendants withheld express benefits of their insurance contracts contradict their earlier statements that Defendants did not withhold benefits. Further Defendants assert that the allegations supporting the wrongful withholding of benefits are conclusory in natu...

Excerpt: ...Government Code (“GC”) sections 815.2 and 820 because Sonntag was an employee and caused the collision while in the course and scope of her employment with, and while acting as an agent for, the District. (Compl. ¶ 32.) This matter is on calendar for the District's Motion for Summary Judgment on the basis that there is no triable issue as to any material fact and it is entitled to judgment as a matter of law because “Plaintiff cannot estab...

Excerpt: ... out that the Complaint fails to allege whether Plaintiff owns the property. Moreover, Defendant argues that several statutes preclude Plaintiff from maintaining an action against him. (Citing Rev. & Tax. Code, § 4807, Gov. Code, §§ 860.2 and 810 et seq.) Defendant's demurrer has not drawn opposition. The Complaint details a series of discrete and separate incidents that Plaintiff unfairly affected himself and the real property located at 100 ...

Excerpt: ...according to proof” which is specifically directed at the “[p]roceeds of sale of real property for Lynda Maye in control of Stephen Olson Partition Referee arising out of May v. Rangel; Sonoma County Superior Court Action No.: SCV-260596.” The Application is DENIED without prejudice, for failure to demonstrate the amount to be secured by the attachment. “Attachment is an ancillary or provisional remedy to aid in the collection of a money ...

Excerpt: ...ffs move to compel further responses to their second set of requests for production of documents numbers 44 through 50, 79 through 81 and 99. Request Numbers 44-50 seek documents “evidencing, describing, or tracking repair presentations by owners of 2013 Kia Sorento vehicles in which the dealer” found evidence of problems oil sludge, oil contamination, engine seizing, excessive oil consumption, engine knocking, engine failure or engine rattle...

Excerpt: ...authority to do so, by health-care directive or any other method. Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581; Paparigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 302; Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259. Defendants refer to a “durable power of attorney” attached to the Murray declaration, but the declaration includes no such exhibit and does not even refer to such an exhibit, ins...

Excerpt: ...itten. ¶BC-1. It includes a copy of the agreement. Defendant argues that the complaint is untimely, but nothing in the complaint shows any cause of action to be untimely. Plaintiff shows that the parties entered into the contract in September 2010 but states that Defendant has breached the contract from 2016 through the present. Claims for breach of written contract fall under the four- year statute of limitations of Code of Civil Procedure sect...

Excerpt: ...lability, the court must declare a mistrial, and retry the entire matter. (*Given that the Reed parties share the same last name, the court will refer to the parties by their first name for convenience; no disrespect is intended.) Petitioner and Successor Personal Representative Shelley Ocana (Ocana) argues that William's request for mistrial is untimely and without merit. Ocana contends that Judge Shaffer's statement of decision is final and bin...

Excerpt: ...a conditional Notice of Settlement of Entire Case on May 9, 2018, indicating that a request for dismissal would be filed no later than June 30, 2018. The minutes from most recent OSC on December 13, 2018 indicate that Plaintiff's counsel informed the Court that the parties have settled but that there are disputes as to performance under the settlement and that he seeks to file a motion to enforce the settlement and that jurisdiction was not retai...

Excerpt: ...,000.00 cash deposited into court,” under Code of Civil Procedure section 391.1; and (3) that the Court enter a “pre-filing Order prohibiting the filing of any new litigation by [Plaintiff] against any Defendant(s) herein in propria persona without first obtaining leave of the presiding judge for the county in which the suit is to be filed” under Code of Civil Procedure section 391.7. Plaintiff has not filed an opposition to the motion. Def...

Excerpt: ...jections, to the form interrogatories, special interrogatories, and requests for production of documents by May 1, 2019.CSI's request for monetary sanctions is DENIED. This matter was referred to the discovery facilitator program and assigned to discovery facilitator David King. Mr. King filed a report on April 11, 2019 which thoroughly summarizes the issues and the parties' respective positions, states that the parties met and conferred in good ...

Excerpt: ...ether Plaintiffs' September 20, 2018 appeal (and their September 21, 2018 Notice of Automatic Stay of ‘all trial court proceedings on the challenged claims') divests the Court of subject matter jurisdiction to rule on TWC's current motion for summary adjudication, in whole or in part.” The parties submitted their supplemental briefs on April 3, 2019. On the threshold issue of the Court's jurisdiction to hear this motion with the appeal pendin...

Excerpt: ...plaints for indemnity. This matter is on calendar for the motion by Cross-Defendant/Cross-Complainant RE West Builders, Inc. for leave to file an amendment to its cross-complaint to substitute South County Plumbing, Inc. for FOE 1 and Griffin Soil as Foe 2 (the “RE West Motion”). It is also on calendar for the joinder by Defendant/Cross- Defendant/Cross-Complainant John Carlisle Construction, Inc. (continued by the Court from 4/10/19)which se...

Excerpt: ...ith the Rinaldis at mediation, which was reduced to a signed writing. Ms. Mills contends that the settlement between her and the Rinaldis is enforceable, and precludes any further action, including the elder abuse claims against Ms. Mills, that have been recently raised in an amended petition field by the Rinaldis and Beneficiary Annette Van Lare. The Rinaldis oppose, arguing that the purported settlement is unenforceable and invalid. The Rinaldi...

Excerpt: ...costs related to the instant motion. The motion has not drawn opposition. A party who brings a successful motion to strike under CCP § 425.16 is entitled to attorney fees. (Ketchum v. Moses (2001) 24 Cal.4th 1122,1131; § 425.16(c).) Here it is undisputed that Medstar successfully brought an Anti-SLAPP motion against the Plaintiff's complaint. (See Medstar RJN.) Therefore, Medstar is entitled to its fees. “[T]he fee setting inquiry in Californ...

Excerpt: ...on the same subject: 13. During or about August of 201 5, RAMOS requested a written agreement in furtherance of the oral agreement, and to memorialize the terms of the Option Agreement in writing. The parties drafted a written agreement signed by JONATHAN RAMOS and WALLAHAN hereinafter referred to as the LEASE OPTION; WALLAHAN kept the only copy, saying that before delivery to Plaintiffs, he would need to have his CPA and Attorney look it over. F...

Excerpt: ... the Insurer Defendants); and 3) negligence (against Delaney). This matter is on calendar for the demurrer by Fire Insurance Exchange (“FIE”) pursuant to Code of Civil Procedure (“CCP”) section 430.10(e) to the first cause of action on the grounds that Plaintiffs failed to attach the subject policy or otherwise properly plead their claim and to the second cause of action on the grounds that Plaintiffs do not allege an express breach of th...

Excerpt: ...posed requests for judicial notice are granted. [1] Cross-complainant Sunderland McCutchan, LLP (“McCutchan”) represented Abel and other plaintiffs in Sonoma County Superior Court case no. SCV-245738. Abel later filed this legal malpractice action against McCutchan. McCutchan then filed a cross-complaint against Abel alleging that plaintiffs in SCV-245738 failed to pay McCutchan $75,136.82 in attorney fees plus 15% of all amounts collected on...

Excerpt: ...t payable to Plaintiff for services which she provided in this litigation, which notice must not set forth any claimed amount owed and must not indicate that Kyrias is a judgment creditor against Plaintiff or that Plaintiff is a judgment debtor, or that there has been any judgment in favor of Kyrias or against Plaintiff. Kyrias may file a lien notice but the lien notices she has filed improperly claim that she is enforcing a judgment against Plai...

Excerpt: ...rmation of the arbitration award and entry of judgment are necessary for Petitioners to enforce the award. Additionally, Petitioners seek an award of attorneys' fees and costs, in addition to those included in the arbitration award, for $10,165.00, which includes $8,265.00 in fees and costs incurred to bring this motion and $1,900.00 in fees anticipated to be incurred to prepare a reply and appear at any hearing. Petitioners contend they are enti...

Excerpt: ...t Defendant Cervantes contracted with the Fanucchi Defendants for the removal of trees on property owned or leased by the Fanucchi Defendants. It alleges that during the course and scope of Decedent's employment, Defendant Cervantes cut off a portion of the top of a tree, which fell on Decedent, causing fatal injuries and resulting in the losses and damages claimed by Plaintiffs. After Plaintiffs filed a motion to stay, the parties stipulated to ...

Excerpt: ...) from offering any testimony, evidence, or argument at trial that it had conducted an inquiry or investigation into whether or not Plaintiff's vehicle qualified for repurchase or that Plaintiff is a qualified customer for purposes of the Warranty Act, and for monetary sanctions (“RFA Motion”); and 2) for an order compelling even further supplemental responses to Form Interrogatory (“FROG”) Nos. 1.1, 12.1, 12.2, 12.3, 15.1 and 17.1 and fo...

Excerpt: ...on multiple grounds, most of which are untimely or would not justify the relief sought. For one, Defendant's Motion contends that a default judgment may not be entered against Defendant pursuant to California Insurance Code section 1063.2(g). (Motion at 3:21-4:20.)That section merely defines “covered claims” as excluding default judgments against an insolvent insurer or the insured of such an insurer. And what that definition means is that un...

Excerpt: ... form interrogatories, special interrogatories and requests for production. In the opposition, petitioner agreed to amend his responses to Form Interrogatories, Nos. 2.1, 2.2 and 2.6. As to the remaining, disputed discovery responses, the court rules as follows: Form Interrogatories Petitioner objected to form interrogatories, nos. 12.1 (witnesses), 12.4 (photographs, films, videotapes), 12.5 (diagrams, reproductions, or models) & 12.7 (scene ins...

Excerpt: ...hat the FACC does not state sufficient facts to constitute a cause of action and because the FACC is uncertain, vague and ambiguous. Additionally, Plaintiff moves to strike Defendant's prayer or punitive damages and attorneys' fees and contends that the FACC fails to state sufficient facts to justify these damages. Plaintiff also moves to strike various allegations in the FACC based largely on evidentiary objections. On March 25, 2019, Defendant ...

Excerpt: ...Plaintiffs argue they have adequately alleged facts supporting application of the delayed discovery rule, as well as fraudulent concealment and/or equitable estoppel. Plaintiffs further assert they have stated facts sufficient to allege their fraud causes of action. Plaintiffs also argue the economic loss rule does not bar their fraud claims. Accepting the factual allegations as true, the court finds the fraud causes of action are not time-barred...

Excerpt: ... of Jeffrey Lewis,” one of their attorneys. Lewis' declaration sets forth Lewis' time spent on the appeal. The declaration does not opine, as an expert, on the reasonableness of Defendants counsel's time or fees for bringing the anti-SLAPP motion or litigating the appeal. However, based on the Court's experience, the time shown in the request is excessive. Additionally, the Court is concerned with inexplicable repeated billing entries of hundre...

Excerpt: ...nstitute a valid defense. Defendant has not filed an opposition to this motion. The motion is not opposed. Plaintiff's Request for Judicial Notice of Exhibits 1-4 is GRANTED. Plaintiff's motion for judgment on the pleadings is also GRANTED. The Code provides that a plaintiff is entitled to judgment on the pleadings if “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not s...

Excerpt: ...0. Plaintiff's medical insurer has purportedly imposed a lien for approximately $200,000. In cases in which a judgment is obtained against a public entity defendant, the court has discretion to reduce pre-trial benefits that fall under the collateral source rule by up to one-half of the net recovery. (Gov. Code, §985, subd. (f) & (g).) “Government Code section 985 represents a compromise between public entities, which would like to have juries...

Excerpt: ...preclude RCBSR from raising the issue of order of proof with the trial judge. Plaintiffs' objections 1-5 are sustained and the objection 6 is overruled. The allegations of the Complaint do not base all of RCBSR's purported liability on HBC's employee's conduct or HBC's claimed negligent supervision. It is also alleged that Thorpe and the other individual Defendants were RCBSR's own agents or employees, e.g. John M.R. Doe Comp. ¶¶ 4, 63 (allegin...

Excerpt: ...39.) “If the trial court orders the reference without the parties' consent, ‘[t]he referee's factual findings are advisory recommendations only; they are not binding unless the trial court adopts them.'” (Ibid, citing, In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177; see also, Code Civ. Proc. §644(b) [“The court may adopt the referee's recommendations in whole or in part after independently considering the referee's findings...

Excerpt: ...d does not appear to actually seek further responses but moves to “strike” two general objections made in the requests for admissions. As above in relation to the form interrogatories, Mary Durand argues plaintiff waived any objections by serving untimely responses. The court agrees that plaintiff has waived objections to these requests for admissions. Special Interrogatories, First Set Special interrogatories, nos. 3, 4 & 5 seek information ...

Excerpt: ...in terminating sanctions. The court set the matter on this calendar to review compliance. The parties have filed documents in preparation for this hearing; which the court has reviewed. It appears that Plaintiff is largely in compliance with the orders of the court, however, Plaintiff's responses to the written discovery are inadequate. As pointed out by Defendant, Plaintiff's responses interpose objections, which were waived by her untimely resp...

Excerpt: ...event any cannabis operation, this lawsuit is clearly and expressly limited to stopping illegal operations in violation of the Sonoma County Code and any permit, or lack thereof. Plaintiffs base this in part expressly on the allegation that Defendants lack a permit or license allowing them to conduct the operations and business activities at issue and the first amended complaint only once mentions the permit in order to show that Defendants have ...

Excerpt: ...sulted in surgery in January 2019. Defendant's evidence and explanation are sufficient to justify setting aside the default. “Surprise” is “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” Credit Managers Ass'n of So. Calif. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173. ...

Excerpt: ...which appears doubtful, or which does not appear to be proper on its face. [Citation.] However, “[i]f the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant [citations], and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” [Citations.] The court's fi...

Excerpt: ...fendants' agent, there is no such relation between Plaintiffs and Concierge, with the result that the Court finds no basis for compelling either of them to arbitrate with the other. There is no basis for the Court to require two unrelated parties to arbitrate their claims together even if the claims arise from the same transaction and both parties are in arbitration with another party. That is particularly relevant here where the arbitration fora...

Excerpt: ...to prevail Plaintiff must show not only that it paid the Loss but that it had a legal duty to do so. The court in Fireman's Fund did, in fact, hold that where an insurer paid a claim as a “volunteer” without any obligation to do so, it has no right to seek subrogation under equitable principles. It also noted that there was no evidence of a contractual basis for recovery since no evidence showed an appropriate contractual relationship on whic...

Excerpt: ... written responses to Plaintiff's meet and confer efforts came after the deadline to file a motion to compel further responses. RPDs 26-27 Defendant contends that these RPDs had a supplemental response, but that is not reflected in this separate statement. The RPD itself is not clear what the “Ministri documents” include. Plaintiff contends that Defendant “undoubtedly possesses additional documents responsive to the above-listed Requests be...

Excerpt: ... because of her intoxication lost control of her vehicle, causing Plaintiffs' damages. The pleadings are sufficient to support the prayer for punitive/exemplary damages. Plaintiffs shall draft an order consistent with this ruling. ...

Excerpt: ...ed, or explanation of how section 340.6 applies in fact to each cause of action. Based on the apparent gravamen of the claims, the causes of action for conversion, fraud, and breach of fiduciary duty are based on conduct other than mere professional negligence, i.e., legal malpractice, but instead on the allegation that Defendants breached fiduciary duties to Plaintiff by obtaining and keeping funds belonging to Plaintiff. The court cannot conclu...

Excerpt: ... also be specific, not general, to allege fraud against the corporation. Second Cause of Action This cause of action fails to comply with the statute of frauds and allege a signed writing regarding the alleged review of modification of loan terms and postponement of foreclosure sale. No associated damages are pled. Third Cause of Action Defendant argues that Plaintiff has failed to allege sufficient facts to support the violation of the Homeowner...

Excerpt: ...“CCP”) section 2031.310 and for monetary sanctions. The Motion is GRANTED. Defendant served a CCP section 2031.030 Request for Vehicle Inspection (the “Request”) on April 23, 2018, noticing the inspection for June 11, 2018 in Healdsburg and indicating what Defendant intended to do, including a “test drive.” (Nassirian Decl. ¶ 3 & Ex. A.) Plaintiff served an objection to the Request via overnight mail on June 6, 2018, which objects to...

Excerpt: ...fenses (the “Answer”). This matter is on calendar for Plaintiff's motion to strike the Answer pursuant to Code of Civil Procedure (“CCP”) sections 435-437 on the basis that it is unverified and on the basis that the affirmative defenses are all irrelevant and therefore constitute immaterial allegations. Plaintiff's Motion is GRANTED with leave to amend due to the lack of verification but it otherwise DENIED. Defendant is required to file ...

Excerpt: ...r attorneys' fees pursuant to CCP section 425.16(c)(1) as the prevailing party on the anti-SLAPP motion, and the Court awarded Defendants $5,319.82 in attorneys' fees and costs. The Court also denied Plaintiff's motion to tax costs. Plaintiffs appealed the order granting Defendants' motion for attorneys' fees and costs and the order denying their motion to tax costs. MAC filed a request to dismiss its appeal and the order of dismissal was entered...

Excerpt: ... the declaration of Defendants' counsel acknowledges that “[o]n January 10, 2019, Plaintiff's counsel (Rick O'Hare) and I met and conferred by telephone to attempt to resolve issues, including the failure to produce documents, Plaintiff's objections to Requests, and amendment to Responses.” (See, Mervis Dec. at ¶12.) Accordingly, Defendants' “meet and confer” argument lacks merit. The requested documents clearly contain confidential fina...

Excerpt: ...who was handling the matter did not file a CMC and quit a day before the hearing, he was never made aware that his associate had not scheduled the court call, and that he missed the hearing because it was not scheduled on his calendar. (Shemtoub Decl. ¶¶ 4-7.) He contends that the failure to appear and to file a CMC statement was due to “mistake, inadvertence, mistake [sic] or excusable neglect” within the meaning of CCP section 473(b) and ...

Excerpt: ...rce the right to the fees. (Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4 th 1499, 1505.) Thus, as Lindelli explained, an attorney who has an interest in obtaining attorney's fees pursuant to CCP section 1021.5 satisfies the factors for permissive intervention. One may also obtain a sufficient interest in an action, and a timely basis therefore, when a party to the action fails to prosecute or defend it. (Continental Vinyl Products Corp. v...

Excerpt: ...004c00510003005700 00480057004c00520051[ of the Superior Court. Here Plaintiff's original claim of $22,000 was awarded plus $5,412.60 in interest. Additional claims have also been asserted which are contested by Defendant. Exercising its discretion, the Court allows discovery. Plaintiff's Motion to Compel Plaintiff filed a motion to compel compliance with a notice of deposition and corresponding request for documents; responses to requests for pr...

Excerpt: ...f Automatic Stay of “all trial court proceedings on the challenged claims”) divests the Court of subject matter jurisdiction to rule on TWC's current motion for summary adjudication, in whole or in part. (See,Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193- 196 [the perfecting of an appeal divests the trial court of subject matter jurisdiction over any matter “embraced in” or “affected by” the appeal during the pend...

Excerpt: ...ty seeking settlement approval has the burden of showing the settlement to be fair and reasonable but “a presumption of fairness exists where: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” (Dunk v. Ford Motor Co. (1996) 48 Cal.A...

Excerpt: ... (1998) 18 Cal.4 th 739, 748, fn.6) In its opinion on the most recent consolidated appeal in this case, the Court of Appeal stated in part that “[t]he developer defendants shall recover their costs on appeal.” (See, 2018 WL 2252622 at *12, citing Cal. Rules of Court, rule 8.278(a)(1).) California Rule of Court 8.278 provides “[e]xcept as provided, the party prevailing in the Court of Appeal in a civil case…is entitled to costs on appeal.�...

Excerpt: ...de from the specific Plaintiffs' damages and they both involve the same question of liability. Allowing both cases to go forward separately would create a risk of inconsistent rulings and waste of time. Plaintiffs have some potentially valid concerns about the different complexity of issues and length of trials but these are uncertain and minimal compared to the factors supporting consolidation. Moreover, both are set to start trial soon. The pre...

Excerpt: ...ocedure section 438(c). It is not apparent as a matter of law that Cross-Defendants/Plaintiffs have not breached the alleged “Governing Documents” or “Declaration” or “Rules and Regulations” by continuing to take the position that they are paying “under protest” given the allegations and terms of the documents. It is also not apparent as a matter of law that these documents do not forbid vacation rentals as alleged. The mere fact ...

Excerpt: ...�) required that the OST “be served on all counsel by 3 pm on 3-1-19.” A proof of service filed on March 7 shows that Plaintiff timely served the OST. The unopposed Motion is GRANTED, except that sanctions are not awardable. Defendant is required to appear at a deposition at Plaintiff's counsel's offices at 10:00 am on Wednesday, March 20, except if March 20 is not convenient for Plaintiff, on another mutually convenient date on or before Mar...

Excerpt: ...Brenda Gormley; and (2) to instruct the trustee that if Gormley does not elect to rebuild and re-inhabit the dwelling on the property which was destroyed in the Tubbs fire, the property shall be sold and the sales proceeds, together with any fire insurance proceeds received related to the dwelling and structures, shall be distributed in accordance with section 6.2 of the Trust, as amended. In this motion, petitioner seeks further responses to two...

Excerpt: ... negligence; (2) intentional tort; and (3) premises liability. Plaintiff also seeks punitive damages. Demurrer Defendant Amber Hackett Johnson argues the allegations of the FAC are uncertain, ambiguous and unintelligible, and that plaintiff fails to state a cause of action. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedur...

Excerpt: ...n by defendant Chanate Property Owners Association (“Moving Defendant”) for leave to file an amended answer to the Complaint to include the affirmative defense of “recreational immunity” pursuant to Code of Civil Procedure (“CCP”) sections 473(a) and 576(a). The unopposed Motion is GRANTED. This matter is also on calendar for Moving Defendant's Motion for Summary Judgment on the grounds that Moving Defendant owed no duty to Plaintiff ...

Excerpt: ...nd 7) injunctive relief. This matter is on calendar for a motion by Defendant pursuant to Code of Civil Procedure (“CCP”) section 428.50 for leave to file a cross-complaint against Plaintiff for: 1) breach of equitable servitudes; 2) trespass to land; 3) injunction; and 4) declaratory relief (the “Proposed Cross-Complaint”). The Zimmerman Declaration filed in support of the Motion explains that the failure to timely file a cross-complaint...

Excerpt: ... a fair trial and actually or effectively lost by default; 2) accident or surprise on the part of respondent which ordinary prudence could not have guarded against; and 3) respondent's mistake, inadvertence, surprise, or excusable neglect. A memorandum of points and authorities and supporting documents were filed by the respondent on February 19, 2019, 14 days later. Petitioner argues that this is untimely and a basis upon which to deny relief. C...

Excerpt: ...�) Motion for Summary Judgment, or in the Alternative, Summary Adjudication. The Notice of Hearing solicited briefing on this issue, stating that parties wishing to be heard on the issue of “the propriety of including prejudgment interest in the judgment and, if proper, the amount of prejudgment interest” shall file their papers on or before March 4, 2019. No briefing was received. However, the Court is in receipt of, and has reviewed and con...

Excerpt: ...as Secretary of State of the State of California (“Respondent”), contended in his October 29, 2018 Opposition to Petitioner's Petition to Disqualify Sen. Dianne Feinstein that the Petition was filed in the incorrect venue under Elections Code (“EC”) section 13314(b). That statute provides in relevant part that venue for a proceeding under EC section 13314(a)(1), which allows an elector to seek a writ of mandate in connection with certain ...

Excerpt: ...y 13, 2019 Minute Order.) According to the Court's record, Plaintiff has not filed a Second Amended Complaint as of the date of this tentative ruling. Therefore, the current Special Motion to Strike is MOOT. (See, Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 878-879 [If plaintiff voluntarily dismisses the action after defendant files an anti-SLAPP motion, the court loses jurisdiction to rule on the motion.].) Here, because P...

Excerpt: ...s and proceeded without them. Weeks' prevailed at trial. However, Weeks' motion to quash the subpoenas remains on calendar. Bowen argues that the motion was untimely filed, that Weeks failed to adequately meet and confer and that the motion is moot in any event. Weeks rejects these arguments. She claims the motion was timely filed and that Bowen mischaracterizes the meet and confer attempts. She further argues the motion is not moot because the f...

Excerpt: ...insurance company. However, the statements about Defendant's expertise are basically described as part of standard advertising materials and the like, Defendant seems sufficiently more likely to know the statements origin than Plaintiffs, and these are not the real alleged fraud, which Plaintiffs allege was the representations about the policy limits. As for those representations, the specific statements which Defendant challenges are only part o...

Excerpt: ...would result in an award that is unjust, arbitrary and oppressive, or confiscatory.” The court also will require the notice packets to include a final hearing date that is at least 10, but not more than 20, days after the deadline for objecting or opting-out. The proposed notice, attached to the moving papers, is mostly clear yet detailed, with a full explanation of the lawsuit, and what to do in order to opt out or object to the settlement. Ho...

Excerpt: ...nal distress alleged arising from the acts of the Defendants. On October 3, 2018, the subject subpoenas were served on Hiner by Defendant Wright Realty. Defendant avers that Hiner did not serve any written objections to these subpoenas, nor did he return any documents sought in the subpoena. The Defendant did receive a communication from the subpoena service indicating that Hiner “required a HIPAA-compliant authorization.” This motion followe...

Excerpt: ...der abuse. (See, Rambo v. Blain (1968) 263 Cal.App.2d 158, 163 [“a promise made with intent to deceive or induce a person to enter into a contract, without any intention of performing it, is actual fraud”], citing, Civ. Code §1572(4); see also, Civ. Code §1710.) “[B]ecause the real intent of the parties and the facts of a fraudulent transaction are peculiarly in the knowledge of those sought to be charged with fraud, proof indicative of f...

Excerpt: ...t no appearances had been made by any defendant prior to entry of the dismissal on October 4. The first Case Management Conference was set for August 23, 2018. The minutes from the August 23 CMC show that no CMC Statement was filed and that although the tentative ruling required an appearance, no appearance was made at the CMC by Plaintiff. The Court imposed sanctions against Plaintiff and its then-counsel Ralph Pollard of $150 for failure to fil...

Excerpt: ...e parties' respective insurable interests in the property. The home owners insurance proceeds have been deposited with the court and are awaiting court determination of how much shall be distributed to plaintiff and defendant. The real property has already been deemed by the family court to be defendant's separate property. Therefore, plaintiff has no ownership interest in the real property. Consequently, the SAC does not state a real property cl...

Excerpt: ...and granted on October 17, 2018. According to this court's order, Plaintiff's responses were to be served by December 19, 2018. Plaintiff was also ordered to pay $810 in sanctions. Defendant asserts that no responses have been forthcoming, nor has Plaintiff paid the $810 in sanctions. Defendant has now filed this motion seeking another order commanding responses and deeming the requests for admission admitted. Defendant also seeks terminating san...

Excerpt: ...est (hereinafter, “RPI”) Lytton Rancheria of California (hereinafter, “the Tribe”) to comply, or not comply, with the Forest Practices Act (hereinafter, “FPA”), Forest Practice Rules (hereinafter, “FPR”), California Environmental Quality Act (hereinafter, “CEQA”), the Porter-Cologne Water Quality Act (hereinafter, “WQA”), or the Fish & Game Code regarding Non-Industrial Timber Management Plan (hereinafter, “NTMP”), spe...

Excerpt: ...brother, defendant Bowen. Bowen filed a cross-complaint claiming he is entitled to more than half the sale and insurance proceeds based on his claims for reimbursement of expenses and for alleged offsets. Bowen seeks to compel further responses to form interrogatories nos. 2.12, 2.13, 6.1-6.7, 7.1-7.3, 9.1, 9.2, 10.2, 12.1-12.7, 13.1, 13.2, 14.1, 14.2 and 16.1. Weeks' responses to these form interrogatories were primarily objections based on Bowe...

Excerpt: ... an imposition of punitive damages. The underlying Complaint alleges that Plaintiff purchased certain real property with a mobile home attached. The Complaint alleges that the mobile home is uninhabitable due to mold and mildew. The Complaint alleges a failure to disclose the true condition of the property on the part of Plaintiff's agent, the seller, and the seller's agents. The Defendants are alleged to have acted as the seller's agents in the ...

Excerpt: ...will be necessary based on any new responses resulting from the motion on the requests for admissions. Moreover, while Defendant generally responded to each part of 17.1, many responses are vague “not applicable” or simple reiterations of the groundless objections. Sanctions awarded to the moving party for time actually spent, with more to be awarded on proof of additional reasonable time and expense. The amount awarded based on time spent so...

Excerpt: ...et forth clearly and distinctly with no apparent ambiguity. The provision thus appears to cover all of the claims between these two parties and, because of the terms of the provision, the statement from Brody in Exhibit 6 that the terms were the result of negotiation, and the nature of Brody's employment and position, there is no indication of procedural or substantive unconscionability. The moving party also demonstrates that the parties have al...

Excerpt: ... as filed does not reflect the correct upcoming hearing date and there is no proof of service of the motion on the intervenors. Nor is there proof of service demonstrating that plaintiff, who resides out-of- state, was notified of the new hearing date for the motion to withdraw and informed of the upcoming motion to expunge. The court is inclined to grant the motion if Mr. Kelly can demonstrate on or before the hearing that proper notice has been...

Excerpt: ...s prosecution claim. Defendant contends that Plaintiffs have failed to meet that burden and therefore, the motion to strike should be granted and the complaint should be stricken. Plaintiffs oppose the motion on several grounds. First, Plaintiffs argue that the motion is procedurally defective under Code of Civil Procedure section 1005 and California Rules of Court, rule 3.1110 because Defendant's moving papers did not include the time and date o...

Excerpt: ...d] over twelve years before the request to renew of the judgment has been filed.” Plaintiffs refer to their Exhibit A to support this argument, which is a December 9, 2008 “Modified Judgment” entered in Defendant's favor following a remittitur from the Court of Appeal, which affirmed the trial court's prior award of expert fees and litigation costs but reversed the trial court's award of attorneys' fees to Defendant. Alternatively, Plaintif...

Excerpt: ...ce of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported. (b) Contents of memorandum The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced. Plaintiff shall subm...

Excerpt: ...ate from this action. The County demurs on the ground that plaintiff has failed to state a cause of action because the factual allegations are insufficient to establish that the County (as opposed to the Town of Windsor) owned or controlled the public property where the accident occurred or owed a duty to plaintiff. The County argues it is “indisputable” that it does not have ownership or control over the location where the accident occurred....

Excerpt: ...respondents: (1) violated the Brown Act (Gov. Code, §54950 et seq.) by denying him the right to fully comment at the meeting; and (2) violated Government Code section 1090 and Government Code section 87100 by failing to disclose alleged conflicts of interest and failing to abstain from contracting with Colantuono, Highsmith & Whatley, PC (“CHW”) to represent the county in defending against petitioner's pending lawsuit challenging pension inc...

Excerpt: ...ntage of objectors is small.” (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802.) Plaintiff has adequately demonstrated that the above factors have been satisfied and the court reaffirms its certification of the settlement class for settlement purposes. The court also approves plaintiffs' request for $13,066.00 in settlement administration expenses and for a service award to the named plaintiff, Seth Swan, in the amount of $6,000. The co...

Excerpt: ... monetary sanctions are ordered. In this fraud action involving the sale of real property, defendants Kerston and Robison failed to abide by this court's October 2, 2018 Order. The Order required defendants to provide verified responses to plaintiff's request for production, without objections, and to pay plaintiff $1,460 in monetary sanctions, within 20 days of notice of entry of the order. Because of defendants' failure to obey the court's orde...

Excerpt: ...issory note marked “paid in full,” and has instructed the pledge holder of the SCAE shares not to turn the shares over to SCAE. Consequently, plaintiffs filed this action claiming Smith-Wahl breached agreements regarding the sale. Plaintiffs are SCAE, Howard Emigh, Jane Emigh and Raymond Neese. The Emighs and Neese were SCAE shareholders and directors who purchased Smith-Wahl's shares. In response to the complaint, Smith-Wahl filed a cross-co...