Excerpt: ...19, this court entered a judgment quieting title and granting declaratory relief on the action filed by Michael B. Kuimelis and Lorene Kuimelis. In the order, the court held that Plaintiffs/Cross-Defendants were the prevailing parties and “may file a timely Memorandum of Costs.” The Memorandum of Costs was timely filed and served by mail on May 17, 2019. Defendants/Cross-Complainants move to strike or tax certain elements of the costs on the ...

Excerpt: ... conversion range from August 15, 1994, through May 13, 2011. The statute of limitations on the latest transaction, which occurred on May 13, 2011, expired on May 13, 2014. (Code Civ. Proc., § 338.) The complaint was not filed until June 12, 2019. Therefore, the causes of action are barred by the statute of limitations. Plaintiff argues that paragraphs 8 through 10 and 15 of the complaint allege concealment of the material facts and infer a lack...

Excerpt: ...lifornia Rules of Court, rule 3.920, 3.921. The order must set forth the exceptional circumstances justifying the appointment; the scope of the reference; the referee's name, etc.; the referee's powers and report requirements; and objection requirements; the fees; and a specific finding regarding the parties' ability to pay. Code of Civil Procedure section 639(d); California Rules of Court, rule 3.920(c), 3.922. Such orders are, however, generall...

Excerpt: ...aintiff has failed to demonstrate any probability of success on the merits. Plaintiff argues that Defendants may not foreclose on the her real property at 1252 Poplar St., Santa Rosa (“the Property”) while her complete loan modification application is pending, Defendants failed to provide a single point of contact; the loan (“HELOC”) qualifies as a “first lien mortgage or deed of trust” to which Civil Code sections 2923.6 and 2923.7 a...

Excerpt: ... Defendant's facts. Defendant fails to meet its burden on the first issue, the argument that Plaintiff has demonstrated unclean hands. Any party may move for summary judgment or adjudication. Code of Civil Procedure section 437c(a), (f). A defendant is entitled to summary judgment if demonstrating “that the action has no merit.” Code of Civil Procedure section 437c(a). For summary adjudication, the party may seek adjudication of one or more c...

Excerpt: ...e court cannot tell if the further responses are adequate. Form Interrogatories Form Interrogatory Number 15 is a basic form interrogatory. It is not overly broad, unduly burdensome, or oppressive. Defendant did not provide the information requested by Form Interrogatory 17.1. A response stating “inability to respond” is legally insufficient. If the responding party lacks personal knowledge sufficient to respond, he or she may so state, but o...

Excerpt: ...ent for more than three minutes on an agenda item at the October 3, 2017 public meeting of the Board. Luke seeks declaratory relief. Petitioner's Motions to Compel Further Discovery Responses Petitioner moves to compel further responses to Request for Production of Documents, requests 1 through 15 and Special Interrogatories 1 through 44 [1] . The Board responded to the discovery by objecting on various grounds, including that the discovery sough...

Excerpt: ...notes that in a November 1, 2019 meet and confer email from Defendant's counsel (Ms. Gygax) to Plaintiff's counsel (Mr. Miller), Ms. Gygax stated in part that “[u]nless you email me that you are dismissing both actions on Monday November 4, 2019, we shall file a response on Monday when the courts open [following a week long closure due to the Kincaid fires].” (See, Miller Dec. at Ex. E.) Plaintiff filed the dismissal of the entire action on N...

Excerpt: ...; additional $25,000 “progress payment” due February 1, 2018; $725,000 “private note,” at 5% interest only for 60 months. (FAC at Ex. 1 and FAC at Ex. 1.) Although the original agreement included a “monthly payment” of $2,916.66, “due on the 1st of each month, with the first payment due on 10-01-2017;” Plaintiff's FAC contends that this monthly payment was subsequently changed by oral agreement of the parties to $3,020.83. (Ibid.)...

Excerpt: ...ndant defaulted on the account and failed to make payments as they became due and owing. (Id. at 3, 6, 8, 12, 15 and 17.) The last payment applied to the account was on or about November 24, 2017. (Id. at 7, 16.) The total amount due and owing is $11,669.91. (Id. at 3, 8, 12 and 17.) Plaintiff filed the underlying complaint on August 2, 2018 and asserts common count causes of action for account stated and open book account. On September 17, 2018,...

Excerpt: ...endant Libeu Cleaning Equipment, LLC, is GRANTED. Defendants' request for judicial notice of plaintiff's complaint in this action is granted. Defendants' objection number one is sustained. Plaintiff has not laid a proper foundation for the police report. In light of this ruling, the remaining objections to the report are moot. This case arises out of a motor vehicle accident that occurred on May 26, 2016, in Santa Rosa, California between plainti...

Excerpt: ...defendants' motion to dismiss appears moot. Plaintiff's Motion for Punitive Damages Discovery In this action, plaintiff alleges the following claims: (1) wrongful termination in violation of public policy; (2) retaliation in violation of Labor Code section 6310; (3) retaliation in violation of Health and Safety Code section 1278.5; (4) retaliation in violation of Labor Code section 1102.5; (5) Private Attorneys General Act enforcement; and (6) in...

Excerpt: ... In determining what venue rules to apply, courts look to whether an action is transitory or local. See, Brown v. Sup. Ct. (1984) 37 Cal.3d 477, 482, fn.5. This is determined at the outset from the allegations in the original complaint. Ibid. Where the main relief relates to real property rights, the action is local. Ibid. These include actions for recovery of possession of land; injury to real property, such as trespass; partition; foreclosure o...

Excerpt: ...icient to constitute a cause of action for the three causes of action at issue herein. The court notes that Respondents have not demurred to the current 4 th cause of action for writ of mandate based on failure to provide a fair hearing and this order accordingly does not affect that claim. All requests for judicial notice are granted. Background After Petitioners filed this action, Respondents demurred to each cause of action the ground that it ...

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

Excerpt: ... loans worth approximately $10 million, each of which was secured by a deed of trust in one of Plaintiffs' three properties. Defendant contends that Plaintiffs repeatedly defaulted on certain loan covenants and as a result, Defendant notified Plaintiffs that it would impose the default interest rate if the defaults were not cured in 30 days. The first covenant default appears to be in July 2016 and relates to Plaintiffs' violation of Section 6.01...

Excerpt: ... section 396a; (3) Code of Civil Procedure section 446; (4) the Complaint fails to state a cause of action; (5) the complaint is based on hearsay in violation of Evidence Code section 1200; (6) the Complaint lacks authentication by a Real Party In Interest; and (7) the Court lacks Subject Matter Jurisdiction due to failure of the County to exhaust its administrative remedies. The demurrer is OVERRULED in its entirety. Defendant is required to ans...

Excerpt: ...the Trust”), alleges breach of contract causes of action against Nugent. In the cross-complaint, Nugent alleges the following claims against Degenhardt in his individual capacity and in his capacity as trustee of the Trust: (1) damages for breach of fiduciary duty; (2) for return of usurious interest paid and penalties; (3) damages for conversion; and (4) damages for breach of contract. Degenhardt's unopposed request for judicial notice of the ...

Excerpt: ...al.4th 26, 38; Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4 th 1068, 1078 (“as long as a complaint consisting of a single cause of action contains any well-pleaded cause of action, a demurrer must be overruled even if a deficiently pleaded claim is lurking in that cause of action as well.”) Respondent Deborah Senecal (“Senecal”) argues that “Petitioner has not pled the necessary facts that he is the son of the Deceased.” However, P...

Excerpt: ...ial notice is granted. A court shall limit the scope of discovery “if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence” (Code Civ. Proc., §2017.020, subd. (a)) or if it determines the discovery sought “is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenie...

Excerpt: ...ilure to participate in the meet and confer process. Timeliness Defendant argues that plaintiff's motion is untimely as CCP section 2025.480 requires a motion to be filed within 60 days after the completion of the record of the deposition. Defendant argues that the date it served its objections is equivalent to the record of deposition. Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, provides that “under the plain meaning rule, the A...

Excerpt: ...of agency or employment at the time of the subject accident. For the reasons stated below, the motion is DENIED. Defendants' objection, number 1 is overruled. The statement that a true and correct copy of the Traffic Collision Report is attached is not hearsay. The declaration states that the declarant has personal knowledge of the report, which is likely as an associate at the firm representing the plaintiff. Defendant's objection, number 2 is s...

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: ...he class action settlement; 2. Provisionally certifying the Settlement Class, which is defined as: all persons employed by Defendant Escalante-Sonoma, LLC (“Defendant”) in California during the Settlement Class Period and who received a wage statement from Defendant at any time from February 28, 2018 through January 24, 2019, except for individuals who have waived, released and/or recovered monies upon the claims or any of the claims, in whol...

Excerpt: ...attacks; stomach problems; diarrhea; cognitive impairment; fatigue; chronic fatigue; chest pains; and urinary tract and bladder infections. In the complaint, Plaintiff alleged that she sought to work the day shift as a reasonable accommodation and provided five medical notes to Defendants but that Defendants did not engage in a good faith interactive process and took her off schedule and then sent her back to academy training because she was a di...

Excerpt: ...nse to her discovery request, Plaintiff discovered that Defendant failed to disclose material facts about the Property to buyer KS Manson Partners, LP (“KSMP”) that, if appropriately disclosed, would likely substantially affect any potential purchaser's valuation of the property. Plaintiff has also received two appraisals of the Property which indicate values significantly below the pending KSMP offer and provide significant new information w...

Excerpt: ..., roof and fence until Ms. Garwood's death in July 2018. According to Defendants, after Content purchased the property, she discovered the common roof, wall and fence were in need of repair. Content apparently made multiple requests to Ms. Garwood prior to her death but Ms. Garwood refused to contribute to the repairs so Content was force to pay 100% of certain “critical” repairs. After Ms. Garwood's death, Content contacted Plaintiff, as Exe...

Excerpt: ... 425.16(e)(1) and (2) respectively make the anti-SLAPP statute applicable to causes of action arising from “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;” and to “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official...

Excerpt: ...i (1979) 93 Cal.App.3d 669, 679. The protection is not absolute and the information is discoverable where the need for discovery outweighs the privacy concerns. Palay v. Sup. Ct. (1993) 18 Cal.App.4th 919, 933; see also, Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 859-862. To overcome the privacy right, the party seeking the information must show a particularized need and that the information is “directly relevant” to a cause of action or defense...

Excerpt: ...y privilege set forth in Evidence Code section 1014. Roe v. Sup. Ct. (1991) 229 Cal.App.3d 832, 837. When seeking information that potentially falls under the right of privacy, the party demanding disclosure must show a particularized need for the confidential information. Merely being relevant to the subject matter is not enough, and the moving party must show that the information is directly relevant to the case, in other words that it is essen...

Excerpt: ...t: $7,322.15. However, the moving party relies on the wrong statute: CCP §701.020. CCP §701.020 falls under the chapter governing enforcement of money judgments by execution, not the chapter governing earnings withholdings orders. “Except as otherwise provided by statute, this chapter governs enforcement of a money judgment by a writ of execution.” (CCP §699.010.) And, as the Law Revision Commission Comments to section 699.010 state: “Se...

Excerpt: ...ards, shall authorize, in writing, George Montana Hartley to deal with the County of Sonoma regarding the process of and obtaining the permits necessary to legalize the barn at 310 Pleasant Ave., Santa Rosa, CA as a dwelling unit so he can continue to reside in the barn for 10 years after 6/28/14, as intended by the Settlor. 7. George Montana Hartley may attempt to legalize the barn as a dwelling unit, and shall pay all expenses incurred to make ...

Excerpt: ...Insurance Company had a duty under a homeowners policy to pay them for their losses due to the destruction of their home in the Tubbs fire. Mid-Century, in turn, moves for summary judgment or adjudication on the ground that there was no insurance policy in effect at the time of plaintiffs' loss, therefore, plaintiffs cannot prove any of their claims. Mid-Century's request for judicial notice of the complaint is granted. Plaintiffs' residence was ...

Excerpt: ...t all times mentioned in this complaint, [defendant] GUEN as a professional acupuncturist, treated plaintiff as a patient for which such treatment on May 18, 2016 the State of California Department of Consumer Affairs Acupuncture Board disciplined GUEN for “having sexual relations with a patient.” The issue of duty in a negligence action is a question of law and may be determined on a motion for summary judgment. (J.L. v. Children's Institute...

Excerpt: ...ition to Plaintiff's motion for attorney's fees and he and his family went out of town for 10 days; at the hearing on Plaintiff's motion on August 16, 2019, Plaintiff never mentioned the outstanding discovery, which had been served in July and the due date for which was fast approaching; after the deadline had passed, Plaintiff did not contact him about the discovery. He shows that once he found the discovery requests in September 2019, after the...

Excerpt: ...r demurs as follows: (1) Plaintiff Lynmar demurs generally to the twenty-ninth affirmative defense in the Third Amendment to Answer of Gould Evans, Inc. and Douglas Thornley to Second Amended Complaint of Lynmar; (2) As to Douglas Thornley and Gould Evans, Inc., Lynmar demurs on the basis that the twenty-ninth affirmative defense fails to state facts sufficient to constitute a defense. Lynmar Winery, LLC's request for judicial notice, filed on Oc...

Excerpt: ...tute a cause of action against Evariste; (3) The Fourth Cause of Action fails to state facts sufficient to constitute a cause of action against Evariste. For the reasons discussed below, defendants' demurrer to the 2nd COA (promissory fraud) and 4th COA (promissory estoppel) are OVERRULED. Defendants' demurrer to the 3rd COA (cancellation of instrument) is SUSTAINED WITH LEAVE TO AMEND on the grounds that the record owner of the property (SNG Eva...

Excerpt: ...cedure sections 472, 473. A party may amend any pleading “once … of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon ....” Code of Civil Procedure section 472, emphasis added. Defendant Eduardo Juarez Espinosa (“Espinosa”) has already answered and this pending hearing is on for only a motion to strike, not a demurrer. The Court therefore fin...

Excerpt: ...y judgment or summary adjudication Defendant Kalene Birdsall moves for summary judgment or, in the alternative, summary adjudication of plaintiff's sixth cause of action for violation of business and professions code section 17200. Plaintiffs have filed notice of non-opposition to this motion. From July 2016 to April 2017, Kalene Birdsall worked for Christine Cline, a State Farm insurance agent. Ms. Birdsall had no employment relationship with St...

Excerpt: ... C. White; and Terran B. Broussard “that if [they] came out to work in California, Defendant Pride Contracting Inc. would provide seventeen to twenty-four months of fulltime work at $25 per hour, plus a per diem of $125 per day and a personal vehicle expense reimbursement of $8 per hour for every hour driven.” (Id. at ¶¶16-18.) Finally, Defendants allegedly promised plaintiffs Timothy Tingle and Peter Anderson “twenty-four months of full-...

Excerpt: ...rior. The matter is now on calendar for a motion for determination of good faith settlement filed by Black Diamond Paving, Inc. (“Black Diamond”) and Earl Boland dba Sawcor Pavement Striping (“Sawcor”), collectively “Cross- Defendants.” According to the motion, Cross-Defendants have reached a settlement with Plaintiff whereby Plaintiff agrees to release all claims against both cross-defendants and in exchange, Black Diamond has agreed...

Excerpt: ...e claim for punitive damages in the FAC and the court granted the motion. The court found that alleging the defendant drove while intoxicated and caused an accident where the plaintiff was injured, even seriously, is an insufficient basis for punitive damages under Civil Code §3294. The denial of plaintiff's Petition for Writ of Mandate, filed after the above ruling, included the reasoning that since plaintiff could move “to amend his complain...

Excerpt: ...�� (“GLV”) and Percy Miller, aka Master P (together “Plaintiffs”). For the reasons discussed below, the motion for summary adjudication is DENIED. 1. First Cause of action for Breach of Oral Contract; Second Cause of action for Breach of Implied Contract Defendants argue Privateer is entitled to summary adjudication on GLV's causes of action for breach of an oral and implied contract because the alleged contract is invalid under the statu...

Excerpt: ...t 3.1350(e). “‘Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.' [Citation.]” (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 568.) Additionally, plaintiffs submitted papers responding to defendants' reply documents. Such “sur-reply” papers are not authorized, but even if the papers were allowable...

Excerpt: .... However, the information sought in request for admission #4 is improper and discovery is not the method by which to test the nature or number of causes of action in a pleading. The motion is thus denied as to request for admission #4 but granted in all other respects. The objection filed with the reply is OVERRULED. Any request for sanctions is denied as both sides have acted partially with, and partially without, substantial justification. Whe...

Excerpt: ...force the Settlement against the Sunhill Defendants, recognizing that it may not be enforceable against the Trustee. Plaintiff demonstrates that the terms at issue are obligations of Sunhill, Sunhill breached them, and Plaintiff wishes to enforce the Settlement against Sunhill because of Sunhill's breaches. Defendants do not dispute this and no term in the Settlement appears to require all parties to sign it or render it unenforceable against the...

Excerpt: ...r other remedy. However, Plaintiff fails to state facts sufficient to constitute any cause of action and the allegations are fundamentally unclear. Nothing indicates what Defendants actually did, who Defendant Claudine Kent even is or how she is involved, what defamation occurred, when, or the context or nature of it. As for demurring party, Plaintiff fails to state any statutory bases of liability, which is required for this Defendant as a gover...

Excerpt: ...contends that because the action resulted in a settlement by which Defendants would pay Plaintiff a monetary amount, Plaintiff is necessarily the “prevailing party” and is entitled to recover his reasonable attorneys' fees under the applicable statutes and under the parties' settlement agreement. Plaintiff contends he has incurred $59,283.75 in attorneys' fees and $3,346.33 in costs related to this action. Thus, Plaintiff seeks a total award ...

Excerpt: ...tgage Loan Trust 2005-WL2 (“Deutsche Bank”) on or about May 2, 2019. On August 30, 2019, when neither defendant had filed a response to the Complaint, the County filed a Request for Entry of Default against both defendants and the default was entered the same day. In this motion, the County moves for a default judgment under Code of Civil Procedure section 585(b) and requests that the Court issue a permanent injunction enjoining Tinker from, ...

Excerpt: ...ts. Therefore, the motion is denied without prejudice. Health & Safety Code § 17980.7(c) provides: “The enforcement agency, tenant, or tenant association or organization 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 se...

Excerpt: ...�� (“GLV”) and Percy Miller, aka Master P (together “Plaintiffs”). For the reasons discussed below, the motion for summary adjudication is DENIED. 1. First Cause of action for Breach of Oral Contract; Second Cause of action for Breach of Implied Contract Defendants argue Privateer is entitled to summary adjudication on GLV's causes of action for breach of an oral and implied contract because the alleged contract is invalid under the statu...

Excerpt: ...ondie and/or defense counsel and Plaintiffs Joan Coke and Helen Straessle; prohibiting Defendants and their current counsel, or any newly appointed counsel, from utilizing at trial or in any other manner any communications from Plaintiffs Joan Coke and/or Helen Straessle; and prohibiting Defendants or their counsel, current or newly appointed, from obtaining or using any testimony from Plaintiff Helen Straessle in any manner whatsoever. On Septem...

Excerpt: ...controversy by claiming a brain injury as a result of the subject October 2017 accident…” (Motion at 2:5-7.) Defendant contends there are “specific facts” from Plaintiffs deposition testimony, medical records, and a recent independent physical examination conducted by Deborah Doherty, M.D., which provide support for the requested exam. Additionally, Defendants aver that the initial examination by Dr. Doherty was interrupted by a paralegal...

Excerpt: ...aining order and OSC re preliminary injunction on September 12, 2019. Defendant was personally served with the OSC and supporting documents on September 16, 2019, however, no opposition has been timely filed. Per CCP §526(a)(3): “An injunction may be granted in the following cases:…(3) When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some ac...

Excerpt: ...ey Robert Murray and on September 17, 2018, Plaintiff filed a notice of settlement of the entire case stating that the case would be dismissed no later than November 7, 2018 conditioned on “the satisfactory completion of specified terms that are not to be performed within 45 days of the date of the settlement.” On February 2, 2019, Plaintiff filed a second notice of settlement which stated the case would be dismissed no later than March 25, 2...

Excerpt: ... 7, 8-9. Venue in transitory actions generally is properly in the county where the defendant resides, with certain exceptions. Code of Civil Procedure section 395(a). Venue in contract actions is also proper where the contract was entered into, i.e., where the words of acceptance were spoken, or where the obligation was to be performed. Code of Civil Procedure section 395(a). Contrary to the rule for actions against individuals, in actions agains...

Excerpt: ...foot retail building that Ms. Enkema leased to Mark and David Hoffman in 1994 which allowed the Hoffmans to operate Firecrest Market. In January 2009, after only 5 years on a 15-year lease, the parties apparently entered into a Lease Renewal Agreement that renewed the original lease for 10-years on substantially the same terms. On or about December 19, 2014, the parties allegedly entered into a Second Lease Renewal Agreement which purported to gr...

Excerpt: ...ht two continuances of the hearings and then failed to appear for the last hearing. Consequently, the court issued a bench warrant. Plaintiff currently has an enforceable lien on defendants' personal property pursuant to CCP §708.110(d). However, the lien expires on March 4, 2020. Plaintiff now moves to extend the lien by court order so as to avoid the alternative way to extend the lien through costly annual judgment debtor examinations. “[A]l...

Excerpt: ...f other insureds may be discoverable if relevant to the subject matter of the action or reasonably calculated to lead to admissible evidence. (See CCP § 2031.010(a); (Colonial Life & Accident Ins. Co. v. Sup.Ct. (Perry) (1982) 31 Cal. 3d 785, 790.) Discovery is allowable, for example, to clarify an ambiguity in a policy (see Carey-Canada, Inc. v. California Union Ins. Co. (D DC 1986) 118 FRD 242, 244—how “asbestosis” was interpreted in fil...

Excerpt: ...he cause of action brought against him.” Code of Civil Procedure section 428.10(b). This includes situations where a defendant claims another is at fault for the injuries alleged in the complaint and seeks equitable indemnity. See, American Motorcycle Ass'n v. Sup. Ct. (1978) 20 Cal.3d 578, 607; Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445. The defendant need only allege that the injury alleged in t...

Excerpt: ...iefing on only the issue of whether the court can decide on demurrer whether the Separation Agreement applies to the trust. Initial briefing shall be filed on or before November 8, 2019 and any responsive briefs shall be filed on or before November 21, 2019. Because the pleadings are not yet settled, the court will continue the trust petition hearing currently set for November 21, 2019 to January 2, 2020 at 2:30 p.m. in Department 18. DEMURRERS: ...

Excerpt: ... 1078 (“as long as a complaint consisting of a single cause of action contains any well-pleaded cause of action, a demurrer must be overruled even if a deficiently pleaded claim is lurking in that cause of action as well”). For example, if a party directs a general demurrer against a cause of action labelled “fraud” based on failure to state that cause of action, the demurrer will fail if the complaint sets forth a valid cause of action f...

Excerpt: ... case which stated that the case would be dismissed no later than November 7, 2018 conditioned on “the satisfactory completion of specified terms that are not to be performed within 45 days of the date of the settlement.” On February 2, 2019, Plaintiff filed a second notice of settlement which stated the case would be dismissed by March 25, 2019. On March 25, 2019, Plaintiff filed a lis pendens with respect to the property and on May 1, 2019,...

Excerpt: ...� Breach of Implied Covenant of Good Faith and Fair Dealing While some of the allegations are based upon the same allegations as the breach of contract claim, the complaint also alleges that plaintiffs promptly reported their losses to CSAA which then spent months investigating, evaluation, and deciding on their claims. (FAC ¶48.) The claims are alleged to still be open without a final written denial or statement that no further payment would be...

Excerpt: ...to the action…in any action in which the mental or physical condition…of that party or other person is in controversy in the action.” “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (CCP §2032.320(a).) “Generally, finding a condition ‘in controversy' poses no great difficulty. Allegations of physical or mental injury in the complaint and denial of the injury or...

Excerpt: ... action arises from an approximately 13- year relationship and co-habitation between Plaintiff and Hammer from approximately 2004 to 2017. In the complaint, Plaintiff asserts an interest in real property located at 4303 Parker Hill Road, Santa Rosa, which the parties jointly acquired during their relationship. Additionally, Plaintiff claims an interest in Western, a company the parties started during their relationship. Plaintiff contends that sh...

Excerpt: ...l District (“District”) from his position as principal of a local high school to classroom teacher. Behrens filed his complaint on May 21, 2018, asserting causes of action for (1) writ of mandate, (2) violation of his constitutional right to due process (42 U.S.C. §1983) and (3) unlawful retaliation in violation of California Labor Code Section 1102.05, subdivision (c). On May 9, 2019, the court denied Behrens's petition for writ of mandate,...

Excerpt: ...98 offer”). The 998 offer was accepted by defendants on June 28, 2019. Only counsel for the parties signed the 998 offer. As an initial matter, it is unclear why plaintiff resorts to CCP §664.6 at all when plaintiff presumably could have obtained entry of judgment by filing the 998 offer and acceptance. As CCP §998(b)(1) provides: “If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall e...

Excerpt: ...pecified deposition notice. This Motion was set for hearing pursuant to the July 30, 2019 order granting Plaintiff's ex parte application for leave to file this Motion. Discovery closed on June 21, 2017 and this case is set for trial on October 15, 2019. The basis for the Motion is Cal. Code Civ. Proc. (“CCP”) § 2024.050, which provides that the Court may grant leave to complete discovery or reopen discovery following the discovery cut-off. ...

Excerpt: ...x rel. Gow v. Mitchell Brothers' Santa Ana Theater (1981) 118 Cal.App.3d 863, 870-871. In the context of CEQA, the court in County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91, at 100, stated that “[w]e draw a distinction between the relatively limited scope of the main action and the effective range of an interim injunctive order. A court exercising injunctive power may do so upon conditions that protect all—including the public—...

Excerpt: ...e any documents; and failed to provide any dates for the commencement of the <000f0003004c0051000300 005c000f00030033004f[aintiff acknowledges that since the filing of the motion, the parties have agreed to a deposition date of February 25, 2019, which is only two days before this scheduled hearing. Thus, Plaintiff requests that the hearing remain on calendar and despite the agreement on a deposition date, Plaintiff continues to request an order ...

Excerpt: ...ts a motion directed to a prior complaint. [Citation.] Thus, once an amended complaint is filed, it is error to grant <00570044004c0051004800 005500480059004c0052[us complaint. [Citation.] As our colleagues in Division Two have explained, “a court granting plaintiff leave to amend a cause of action should not at the same time attempt to summarily adjudicate material issues which underlie that same cause of action. After a cause of action is ame...

Excerpt: ...igence; 2) breach of contract; 3) breach of implied warranties; 4) – 5) breach of express warranty; and 6) – 7) claim on contractor's license bond (against the sureties). The Complaint alleges that Plaintiffs entered into an Owners Contract Agreement with Defendant Ken Medrano, individually and dba Kendell Brook Builders (“Defendant Medrano”), and that as part of the work to be completed, Defendant Medrano retained Jack Shapiro and Shapir...

Excerpt: ...l infliction of emotional distress (against defendant Drew); and 3) negligent infliction of emotional distress (against defendant CSAA). This matter is on calendar for the demurrer by CSAA and Drew pursuant to Code of Civil Procedure (“CCP”) sections 430.10(d) and 430.10(e) on the basis that they have been misjoined and that Plaintiff has failed to set forth facts sufficient to constitute a cause of action. That Demurrer is SUSTAINED without ...

Excerpt: ...l infliction of emotional distress (against defendant Drew); and 3) negligent infliction of emotional distress (against defendant CSAA). This matter is on calendar for the demurrer by CSAA and Drew pursuant to Code of Civil Procedure (“CCP”) sections 430.10(d) and 430.10(e) on the basis that they have been misjoined and that Plaintiff has failed to set forth facts sufficient to constitute a cause of action. That Demurrer is SUSTAINED without ...

Excerpt: ...ith the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office. The notice of hearing must be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed...

Excerpt: ...preme Court of the State of New York, County of New York entitled Brembo S.p.A. v. T.A.W. Performance Index No. 654931/2017 (the New York Case) which it argues involves the same Distribution Agreement as in the instant case. For the reasons explained below, the court finds that Brembo is not subject to the jurisdiction of the court, and therefore the service of summons is properly quashed. Quash Summons Based on a Lack of Jurisdiction Amended Com...

Excerpt: ...er 9, 2016. The Complaint contains a single cause of action for premises liability. This matter is on calendar for Defendants' motion to compel arbitration and stay pursuant to the Federal Arbitration Act (“FAA”) and California Arbitration Act on the basis that: 1) Plaintiff received the benefits conferred by the terms of service containing the agreement to arbitrate disputes “arising out of or related to” the use of Airbnb's platform, wh...

Excerpt: ...n Arshi carrying a loan in the amount of $72,500. The promissory note for Arshi's loan to plaintiff, among other things, was a main issue in this case. After a court trial, judgment was entered in plaintiff's favor. Plaintiff filed a costs memo and Arshi now moves to strike or tax costs. Per CCP §1032(a)(4), a prevailing party includes the party with a net monetary recovery. Here, the court finds plaintiff was the prevailing party. In this actio...

Excerpt: ...on Insurance Fund's unopposed motion to consolidate its Subrogation Action with this case pursuant to Code of Civil Procedure (“CCP”) section 1048(a). CCP section 1048(a) provides: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning procee...

Excerpt: ...ges that on or about January 25, 2016, the defendants and their agents obtained x-rays and then the next day, January 26, 2016, extracted all 20 of her remaining teeth and that they were negligent and careless in their diagnosis, treatment planning, and treatment. (Compl. ¶ 6.) The grounds for the Motion are that Moving Defendant provided business support services to Dr. Boseovski and the undisputed evidence precludes an agency theory of liabili...

Excerpt: ...ontrary. Defendant also presents no facts or evidence in opposition. Defendant instead objects to Plaintiff's evidence, particularly the documents in Exhibit B, as inadmissible hearsay which does not meet the requirements for the business-records exception under Evidence Code section 1271. Evidence Code section 1271 governs the admissibility of business records, and information therefrom, as an exception to the hearsay rule. It states, in full, �...

Excerpt: ...osition that the petition must be denied because a copy of the agreement to arbitrate is not attached to the petition as required by CCP §1285.4(a). On the merits, respondent argues the award must vacated because: (1) the arbitrator exceeded his power and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; and (2) respondent's rights were substantially prejudiced by misconduct of the arbitra...

Excerpt: ... filed a general denial in response in which he also stated that “the parties are equal co-owners of the subject property.” However, Bowen later filed an amended general denial in which he now states that he disputes the parties have an equal ownership interest in the property. He alleges he is entitled to more than one-half the property based on money owed him for back-rent, reimbursement for time and money he spent on property maintenance, ...

Excerpt: ...counsel states in his declaration that entry of default was “due to my inadvertence, mistake and neglect.” (Decl. of Reustle, ¶24.) Under the circumstances, “relief is available regardless of whether the attorney's neglect is excusable.” (J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4th 1485, 1492.) Accordingly, the court shall grant the motion and direct defendants' counsel to pay plaintiff $1,965 in reasonable compensatory ...

Excerpt: ... have not filed an opposition to the motion. Defendant's Motion is GRANTED. Defendant shall file his proposed answer within five days of service of the Court's final ruling on this motion. Code of Civil Procedure section 473(b) provides for both discretionary and mandatory relief from an entry of default. (See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838– 839; see also, Benedict v. Danner Pr...

Excerpt: ...170011001300 005100030057004b0048[ grounds that there is “good cause” for the Court to exercise its discretion and reopen discovery on this limited issue and that Defendant will not suffer prejudice if discovery is reopened and limited as requested. Defendants oppose the motion and contend that Plaintiff has known about Defendants' contractual limitation of liability defense for 15 years and has chosen to ignore it. Thus, Defendants aver that...

Excerpt: ... defendants. Therefore, plaintiff seeks leave to file a supplemental complaint based on the new facts that have arisen since plaintiff filed her original complaint. She concedes these new facts give rise to new causes of action which also necessitates adding parties as defendants. Plaintiff also appears to argue that she has amendments to make to her complaint based on the fact she dismissed some defendants from certain causes of action. Defendan...

Excerpt: ...ntiff's Motion is GRANTED. Unless this tentative ruling is contested, <0057004800470003005a00 005000520057004c0052[n. Code of Civil Procedure section 473(b) provides for both discretionary and mandatory relief from an entry of default. (See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 838– 839; see also, Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927.) As relevant here, the mandatory re...

Excerpt: ...rsion and negligence regarding the property do not indicate that a bailment occurred as a matter of law or that Plaintiff in any way willingly left the property with Defendant or entered into an agreement with him regarding it. It is also not certain when the injury, or knowledge thereof, finally occurred for the cause of action to accrue. Finally, the cause of action for intentional infliction of emotional distress is based not only on the alleg...

Excerpt: ...ants contend are “duplicative, unnecessary, and unreasonable.” Defendants argue that Plaintiff has not demonstrated he was unable to find local counsel to handle this case and thus, travel costs incurred by Plaintiff's are not “reasonable” and should not be recovered. Plaintiff opposes the motion and argues that under Code of Civil Procedure section 1033.5, a memorandum of costs is prima facie evidence that the costs were “necessarily i...

Excerpt: ...hat the damages awardable to Plaintiff from Defendant Mejia on the first cause of action for breach of contract are $600,000 plus allowable interest and costs, as evidenced by the undisputed facts (the “Notice”). The Notice indicated that the Court intends to issue a new order which is the same as the MSA Order except that page 5, lines 8-9 would read: “Accordingly, the Plaintiff is entitled to summary adjudication on its breach of contract...

Excerpt: ... driven decisions. And, in February 2016, Judy's primary care physician deemed her permanently incapacitated. However, in March and June 2016, Judy made substantial changes to the 2005 Gappa Trust with the assistance of a different attorney. Changes made in 2016 included Joe resigning as co-trustee and the appointment of a private fiduciary, Shelley Ocaña, as co-trustee along with Judy. It also appears that Judy was designated as Joe's attorney-...

Excerpt: ...ED. This case arises out of allegations of defects in fiber cement panels installed at plaintiff Timothy Mott's (“Plaintiff's”) home located at 1861 Hale Road, Sonoma (the “Panels”). According to USAP's Motion, the Panels were purchased by Ryan from USAP who had in turn purchased them from Plycem USA, Inc. (USAP had contended that Plycem USA, LLC (“Plycem”) assumed Plycem USA, Inc.'s liabilities in a merger.) Plaintiff sued general co...

Excerpt: ...plaint The presently operative First Amended Complaint (“FAC”) alleges that Defendant failed to pay overtime compensation as required by the California Labor Code (“LC”) and applicable wage orders because it calculated overtime based on employees' base hourly wages and did not take into account all applicable non-discretionary bonuses earned during the applicable pay period; non-discretionary bonuses paid during the applicable pay period ...

Excerpt: ...is OVERRULED. The DA brings this action under Business & Profession Code section 17200 et seq. (the “UCL”) to “enjoin [Defendant] from engaging in the unlawful business practices and violations of worker safety laws as alleged herein, and seeks civil penalties, injunctive relief, and restitution.” (SAC ¶ 7.) The SAC alleges that within four years preceding the filing of the complaint Defendant violated, and continues to violate, the UCL ...

Excerpt: ...in the FAC are covered by the litigation privilege in Civil Code section 47 and therefore, cannot be the basis for the causes of action asserted. More specifically, Defendants argue that Plaintiff's entire complaint is based upon actions taken by attorneys during the course of representing their client to secure title to a parcel of property owned by their former client. Defendants contend that the litigation privilege applies to the allegations ...

Excerpt: ...ime, the fee agreement provided that, “Client acknowledges that Stephen Power has agreed to pay for legal services performed by L&V and authorized L&V to invoice and collect from Mr. Power. Client acknowledges that Client shall be responsible for any fees and costs not paid by Mr. Power or his designee.” (Exh. A to First Amended Complaint.) Stephen Power subsequently paid only part of defendant's fees. L&V filed suit against him in Solano Cou...

Excerpt: ...o strike, along with the filing fee for this motion. The court has considered the complexity of the legal issues, the length of the motion with supporting documents, and the lack of detail to support the requested costs. This results in $15,170 for attorneys' fees, $337.50 for the paralegal, and the costs of $150, for a total of $15,657.50. The prevailing party is to prepare an order conforming with the order of the court, submitting it to the op...

Excerpt: ... stating that they are suing Defendants for engaging in activities which require a permit and for which they have no permit. Courts must look to the “principal thrust or gravamen” of a claim and a party may not invoke the anti-SLAPP statute where the claims involving protected activity are only incidental to a cause of action that is fundamentally based on nonprotected activity. Martinez v. Metabolife Int'l, Inc. (2003) 113 Cal.App.4th 181, 1...