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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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