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: ... 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: ...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: ... 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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...,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: ...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: ...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: ...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: ...) 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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 ...