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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...oving party has the burden of demonstrating that plaintiff cannot establish at least one element of each cause of action at issue, each claim for punitive damages, an affirmative defense, or each issue of duty addressed in the motion, or there is a complete defense to each cause of action addressed. Code of Civil Procedure section 437c(f)(1), (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant can show that an element c...

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

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

Excerpt: ...le in the court's record. Demurrer Second Cause of Action: Elder Abuse Welfare and Institutions Code section 15610.07 defines “abuse of an elder or a dependent adult” as including “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.” The Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, at 31-32, ruled that elder abuse under Code ...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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