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: ...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: ...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: ...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: ...; 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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...