Excerpt: ... Wednesday, March 24, 2021, at 3:00 p.m. in Courtroom 16 because there is no proof of service or other indication of proper notice, as explained herein. The Action Plaintiff alleges that it loaned Vintage Oaks on the Town Green, LLC (“Borrower”) a loan amounting to $29,804,871.59 (“the Loan”) by a written agreement and promissory note (“the Note”); Defendants Dan S. Palmer, Jr. (“Palmer”) and Jeanette Ann Bisno (“Bisno”) (coll...

Excerpt: ...tion to maintain the exterior walls and pipes of the structure. She adds that the problems prevent her from repairing her Unit or being able to sell it as she now desires to do. The Motion Plaintiff seeks a preliminary injunction ordering Defendant to repair the alleged leak in her Unit by November 1, 2020, in preparation for anticipated wet winter weather. Defendant opposes the motion, arguing that it “was under the impression that the leak co...

Excerpt: ...lass Representative's Enhancement. The parties shall send the proposed class notice in accordance with the procedures and timelines set forth in the moving papers. The Action Plaintiff, alleging that he has been a non-exempt employee of Defendant since 2013, complains that it has been violating Labor Code section 226(a) by consistently providing incorrect wage statements which improperly reduce the employees' overtime pay in violation of state la...

Excerpt: ...s admonition to do so. The Motion Plaintiff now moves the Court to seal records of “an ex parte hearing requesting a restitution order for payment on behalf of the victims compensation benefit which was awarded by the California government claims board victims compensation office.” She relies on California Rules of Court, rules “2.550 et seq.” but offers no other explanation, discussion, information, or evidence of any kind in her motion,...

Excerpt: ...se by residing on the Property when the Lease states that the Property was leased to Defendant “for the purpose of operating an abalone farm and fishery, and for related and incidental commercial and office operations.” The Motion Defendant moves the Court for summary judgment, claiming that he has not breached the Lease because he has continually operated the abalone farm as required and Plaintiff has waived the right to bring this action by...

Excerpt: ... written agreement and promissory note (“the Note”); Defendants Dan S. Palmer, Jr. (“Palmer”) and Jeanette Ann Bisno (“Bisno”) (collectively, “Defendants” or “Guarantors”) each executed a Guaranty Agreement (“the Guaranty”) guaranteeing to pay Borrower's obligations and they did so in order to induce Plaintiff to make the Loan. Plaintiff complains that after Borrower defaulted on the Loan by failing to pay the amounts owed...

Excerpt: ...fendants filed a cross-complaint against “Roe” Defendants for indemnity, contribution, and declaratory relief, claiming that the Roes are responsible for Plaintiff's injuries. Related Action: SCV-263228 In a related separate action filed earlier (“the First Action”), Defendant Amy Smith (“Amy”) filed a complaint against Carl Joseph Bowers (“Carl”), regarding the same accident and claiming that Carl, father of Plaintiff Seth and dr...

Excerpt: ... M.D. (“Mahmood”) moves the Court to quash service of the summons and complaint and dismiss the action on the ground that there is no personal jurisdiction over him. Code of Civil Procedure section 418.10 allows a defendant to file a motion to quash service of summons or stay or dismiss the action. It states that a party may 1) seek to quash for lack of personal jurisdiction; 2) stay or dismiss due to inconvenient forum; or 3) dismiss pursuan...

Excerpt: ...er the same series of events. Under Code of Civil Procedure section 1048(a), a party may seek to consolidate separate actions “involving a common question of law or fact...pending before the court ....” The moving party must demonstrate that the cases to be consolidated involve the same common issues of law or fact and that consolidation will avoid “unnecessary costs and delays” to the court and parties. Code of Civil Procedure section 10...

Excerpt: ...use she wished to remain one of Plaintiff's attorneys in the appellate matter. Kyrias filed lien notices against Plaintiff, claiming that she was enforcing a judgment against him. After a hearing in April 2019, this Court granted Plaintiff's motion to strike the lien notices, awarded to Plaintiff attorneys' fees and costs incurred regarding the lien notices, and granted Plaintiff's motion to disqualify Kyrias from further representing Plaintiff. ...

Excerpt: ...ry of this order. Defendant is to serve the notice of entry of this order within 5 days of entry of this order. The Court thanks Demurrer Facilitator Dona Cohn-Payne and appreciates her assistance with regard to the demurrers set for hearing on December 2, 2020. Judicial Notice Defendant seeks judicial notice of Plaintiffs' government claims served on April 3, 2018, as well as the order sustain the demurrer, without leave to amend, in the case of...

Excerpt: ...ment (“the Lease”) and Defendant had failed to pay rent as agreed but had refused to vacate the Property or pay rent in accord with a 3-day notice to pay rent or quit which Plaintiff had served and posted on February 7 and 8, 2020. Defendant filed a demurrer on March 6, 2020. The hearing was set for March 19, 2020, but continued ultimately to November 16, 2020 due to the Covid-19 circumstances. The parties informed the Court on November 16, 2...

Excerpt: ...scuss the alleged violations and warning of penalties should he fail to comply. In June 2018, an inspector conducted a site inspection, observing the violations and posting a Notice and Order for Junkyard Conditions, advising Defendant that he needed to remedy the situation to avoid further penalties and fees but that he could appeal within 30 days. Plaintiff thereafter mailed a copy of the Notice and Order to Defendant as well. Plaintiff in Augu...

Excerpt: ...eclaration of necessity” for purposes of exceeding the presumptive limit of 35 Requests for Admission and Special Interrogatories. Plaintiff opposes both motions, both on procedural grounds (inadequate meet and confer efforts) and substantive grounds. Moving party filed reply briefs for both motions. Plaintiff filed objections to both reply briefs. Plaintiff's objections are OVERRULED. Both parties' briefs spend a great deal of time addressing ...

Excerpt: ...astopol (“the Property”) from Defendant Timothy Covington (“Covington”) with escrow closing on March 22, 2019 but that afterwards it discovered that Covington intentionally mislead it about the source of the water on the Property, specifically stating falsely that a well provided sufficient water to supply the Property's needs. Plaintiff complains that the other Defendants (“the Broker Defendants”) handled the transactions as real est...

Excerpt: ...erested Party, Hongxia Li (“Li”) by mail. Plaintiff filed a new proof of service on April 14, 2015, showing service on both named Interested Parties, that day, by mail. The same day, Plaintiff filed a declaration explaining that the Property had been seized from the Interested Parties during a traffic stop, after which Interested Party Sivilay Sidara (“Sidara”) signed a form for Disclaimer of Ownership, and Li received a Notice of Seizure...

Excerpt: ...Premises from the Defendants Mahrt and he complains that they fraudulently promised to Plaintiff that they would rebuild the house and extend the lease with Plaintiff but, although they rebuilt the house, they refused to allow him to occupy it and lease it to him. Plaintiff alleged two causes of action against Defendants Mahrt Family Trust (“the Trust”), Steven P. Mahrt (“Steven”), and Judith Mahrt (“Judith”): eleventh for fraud and t...

Excerpt: ...ng water flow onto Plaintiff's land and causing erosion. He contends that he has repeatedly, in vain, asked Defendant to stop the offending conduct and that the Sonoma County Permit and Resources Management Department (“the County”) has issued citations to Defendant regarding this conduct, requiring her to take remedial and corrective action to repair the changes and damages she has caused. Plaintiff specifies that Defendant's activities incl...

Excerpt: ...and its rights to Plaintiff. Plaintiff asserts two causes of action for the same debt, open book account and account stated. Plaintiff identifies Defendant as “Jose Carillo aka Jose Carrillo aka Jose Martin Carrillo aka Martin Carillo as an individual and dba Carillo Painting aka Carrillo's Painting.” Defendant answered on behalf of all of the named identities as Martin Carrillo. The Motion for Summary Adjudication Plaintiff moves for summary...

Excerpt: ...he facility of Defendant Jersey City Medical Center/RWJ Barnabas Health in Jersey City, New Jersey, on June 21, 2018. Motion Defendants RWJ Barnabas Health (“RWJ”), Jersey City Medical Center (“JCMC”), Dhruv Vasant, M.D. (“Vasant”), Catherine Lushbough, M.D. (“Lushbough”), and Siva Teja Jetty, M.D. (“Jetty”) move the court to quash service of the summons an complaint and dismiss the action on the ground that there is no person...

Excerpt: ... Plaintiff Houses 4 Homes, LLC (“H4H”), or negligently failed to provide loans to achieve what Plaintiffs requested, ultimately causing Plaintiffs to run out of money, default on the Loans, and face foreclosure of the Properties. Plaintiffs allege that Plaintiff Charlotte Souch (“Souch”) is the sole managing member of H4H, which owns the Properties, consisting of two parcels of real property at 10161 Green Meadow Road, Sebastopol (“Gree...

Excerpt: ...e provisions as well as the Court's inherent power to set aside a judgment based on mistake under section Code of Civil Procedure 128(a)(8) and Code of Civil Procedure section 86(b)(3). However, the memorandum contains only two terse paragraphs citing the law and it provides no analysis or explanation of any sort and provides no evidence at all. In opposition, Plaintiff argues that Defendant has provided nothing to carry her burden of demonstrati...

Excerpt: ... as well, to eliminate any threat of prejudice. Plaintiff moves the Court for leave to amend the complaint and file a first amended complaint (FAC”). She claims that she wants to “add factual allegations related to Defendant's prior knowledge and ratification of [Cortright's] misconduct and add a cause of action for sexual harassment in defined relationship in violation of [Civil Code] §51.9 and Premises Liability….” The factual allegati...

Excerpt: ...l date and transfer the action from unlawful detainer to the regular civil calendar because Defendant had vacated the Property so that possession was no longer an issue. No new trial date has been set since. Plaintiff now moves the Court for leave to amend the complaint in order to reflect the fact that possession is no longer at issue and the case is now a regular civil action for money owed and damages. It attaches a proposed first amended comp...

Excerpt: ...Civil Procedure section 430.30; Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The grounds for a demurrer are set forth in Code of Civil Procedure section 430.10. The grounds, as alphabetically identified in the statute, are: (a) the court lacks subject-matter jurisdiction; (b) the person filing the complaint lacks legal capacity to sue; (c) another action pending between the same parties on the same cause of action; (d) defect or misjoinder of parti...

Excerpt: ...er of ways and Defendants failed to correct the problems properly in accord with the applicable warranty. Plaintiff served Lithia with Form Interrogatories, Set No.1 and Special Interrogatories, Set No.1, on April 29, 2020; responses were due May 31, 2020. Plaintiff's evidence is not clear but Plaintiff apparently received responses, without verifications or promised documents, on May 29, 2020, Lithia promising to provide both “shortly”; on J...

Excerpt: ...Defendants covering the Hotel, Plaintiffs complain that after the Hotel was damaged and largely destroyed (“the Loss”) in the Tubbs Fire of October 2017 (“the Fire”), Defendants in bad faith failed to comply with their obligations under the insurance policies. They contend that Defendants have consistently lowballed the claim estimates by millions of dollars, far below the policy limits. Plaintiffs note that five of the buildings of the H...

Excerpt: ...fact knew of the potential claim against it because it was the licensee of the facility. It claims that there will be no prejudice to Plaintiff because the statute of limitations has not run and Plaintiff may therefore file a separate action against it instead of forcing it to litigate in this case without time to prepare for trial. Plaintiff opposes the motion, arguing that there is no authority allowing a party to quash service of summons and c...

Excerpt: ...nt which is not a shining example of pleading, Plaintiffs CQ Innovations, LLC (“CQ”) and James Clay (“Clay”), one of its managing members and owners, complain that Defendant Jesse Quiles (“Quiles”), the other managing member and owner of CQ, has breached his loyalty and business obligations to Plaintiffs as set forth in CQ's Operating Agreement (“the Agreement”). Clay and Quiles are allegedly founders and, currently, the only owne...

Excerpt: ...dgment discovery to Defendants by first-class mail on March 10, 2020; responses were due by April 17, 2020; Defendants have failed to provide responses although Plaintiff made an effort to resolve the matter informally on June 24, 2020 and again on July 6, 2020. Plaintiff moves the Court to compel Defendants to respond to the discovery. He also seeks monetary sanctions of $300 plus a $90 filing fee. Judgment creditors may propound written post ju...

Excerpt: ...y), which Defendants had manufactured, distributed, and sold, exploded when he was carrying it in his pocket, causing severe burns. He claims that he had bought the electronic cigarette, Battery, charger, and related parts (“the Items”) from Defendant Ecig 101 Digital Cigarettes, dba E-Cig 101 (“E-Cig 101”) but does not indicate when. He claims that the explosion and injury occurred on September 11, 2016 at Home Depot in Oklahoma City, Ok...

Excerpt: ... that Defendant Virginia Pasini (“Pasini”) owns the Property, Pasini entered into a master lease with Defendant Ridgeway Distribution (“Ridgeway”) for the Property, Ridgeway subleased the Property to Piner on November 1, 2017 (“Master Sublease”). The disputes and uncertainty have led to problems, including Ridgeway serving a notice of termination on Piner and Plaintiffs for defaults, leading Plaintiffs instead to pay rent directly to ...

Excerpt: ...ted Parties by registered mail. Plaintiff filed proof of service on August 21, 2014 for the petition, notice, and claim form showing service that day on one named Interested Party, Hongxia Li (“Li”) by mail. Plaintiff filed a new proof of service on April 14, 2015, showing service on both named Interested Parties, that day, by mail. The same day, Plaintiff filed a declaration explaining that the Property had been seized from the Interested Pa...

Excerpt: ... are named as officers, directors or shareholders and agents of the business entity Defendant. Procedural History Plaintiff filed separate proofs of service for the summons and complaint for each Defendant. Plaintiff filed one such proof of service showing personal service on Defendant Park at 105 Toyon Lane, Union City, California, on September 13, 2014, and stating that the “Notice to Person Served” identified Park as an individual defendan...

Excerpt: ...Although the complaint refers only to one station and underground storage tank at 525 East Washington Street, Petaluma, the stipulated judgment covers all stations which Defendants own and operate (“the Stations”), which apparently included, as set forth in Plaintiff's motions to enforce judgment, 101 North McDowell Boulevard, Petaluma; 483 East Washington Street, Petaluma; and 532 East Washington Street, Petaluma (“the Petaluma Stations”...

Excerpt: ...n behalf of Defendants Ryan Agrella and Chris Agrella (collectively, “the Sons”), are OVERRULED. To the extent that the Court has sustained the demurrer, Plaintiff has leave to amend within 20 days of the service of the notice of entry of this order. Defendants are to serve the notice of entry of this order within 5 days of entry of this order. Defendants Ryan Agrella and Chris Agrella are required to answer within 10 days of service of the n...

Excerpt: ...led. Plaintiffs have leave to amend within 10 days of the service of the notice of entry of this order. Defendants are to serve the notice of entry of this order within 5 days of entry of this order. The Complaint Plaintiffs complain that Defendants misrepresented the net result or effect of loans or mortgages (“the Loans”) which Defendants provided to Plaintiffs and which were secured against two parcels of real property (“the Properties�...

Excerpt: ...and joined Defendant Golden State Wealth Management, LLC (“GSWM”), founded and run by Defendant Patrick Catone (“Catone”) (collectively, “the GSWM Defendants”) and in so doing misappropriated trade secrets which Defendants now use to compete with Plaintiffs. They contend that Curiel was assigned more than 200 high-net-worth clients when working with Plaintiffs; Curiel developed a personal relationship with Plaintiffs' clients but did ...

Excerpt: ...d assets and equity” to provide for the retirement of both of them, and that these assets included two parcels of real property (“the Properties”), Defendant has breached these agreements by refusing to recognize his interests in the Properties, failing to compensate him for his contributions, and demanding that he vacate the Properties. Plaintiff contends that he and Defendant obtained one of the two Properties, “the Wilson Lane Property...

Excerpt: ... Tuso's purchase of a new 2012 Chevrolet Cruze VIN No. 1G1PF5SC5C7171803, (“Subject Vehicle” or “Vehicle”). The Vehicle was manufactured and warranted by Defendant General Motors LLC (“Defendant” or “GM”). The complaint alleges that, along with the purchase of the Vehicle, Defendant expressly warranted to fix or repair any defects in workmanship or materials for three (3) years or 36,000 miles, with an additional five (5) year/100...

Excerpt: ...int against Loudmouth Golf, LLC, for Equitable and Implied Agent/Membership Indemnity, Comparative Indemnity, Declaratory Relief, and Contribution (“the Cross-complaint”). The cross-complaint incorporates the allegations of the complaint. (Cross-Complaint, ¶8.) Plaintiff filed a first amended complaint (“FAC”) on July 17, 2020, alleging the same causes of action as in the original complaint. The demurrers are SUSTAINED with leave to amen...

Excerpt: ...d assets and equity” to provide for the retirement of both of them, and that these assets included two parcels of real property (“the Properties”), Defendant has breached these agreements by refusing to recognize his interests in the Properties, failing to compensate him for his contributions, and demanding that he vacate the Properties. Plaintiff contends that he and Defendant obtained one of the two Properties, “the Wilson Lane Property...

Excerpt: ... Tuso's purchase of a new 2012 Chevrolet Cruze VIN No. 1G1PF5SC5C7171803, (“Subject Vehicle” or “Vehicle”). The Vehicle was manufactured and warranted by Defendant General Motors LLC (“Defendant” or “GM”). The complaint alleges that, along with the purchase of the Vehicle, Defendant expressly warranted to fix or repair any defects in workmanship or materials for three (3) years or 36,000 miles, with an additional five (5) year/100...

Excerpt: ...int against Loudmouth Golf, LLC, for Equitable and Implied Agent/Membership Indemnity, Comparative Indemnity, Declaratory Relief, and Contribution (“the Cross-complaint”). The cross-complaint incorporates the allegations of the complaint. (Cross-Complaint, ¶8.) Plaintiff filed a first amended complaint (“FAC”) on July 17, 2020, alleging the same causes of action as in the original complaint. The demurrers are SUSTAINED with leave to amen...

Excerpt: ...T&T Telecommunications Company (“AT&T”), and Pacific Bell Telephone Company (“PacBell”) negligently controlled, maintained, or caused the condition. City moves for summary judgment, or summary adjudication, to the only identified cause of action, for “Negligence/Dangerous Condition of Public Property.” It argues that Plaintiff cannot state a cause of action for negligence, the Property was not in a dangerous condition because it did n...

Excerpt: ...that “there are no facts as statements of misrepresentation,” the allegations do not state who made the misrepresentation but claims that the contract itself is a fraud and “[t]his fails because its there [sic] was going to be no intention of the terms, the landlords would not have returned any funds form [sic] the deposits, as the plaintiffs admit did occur,” no facts show that Defendants “did not intend the terms they agreed to [sic],...

Excerpt: ...ler”) with a Request for Production of Documents, Set 3 on March 5, 2020; Muller responded on March 16, 2020; Plaintiffs found the responses deficient and attempted to resolve the matter informally by e-mail on April 9, 2020; Muller responded by reiterating objections and the parties did not resolve the dispute. Fladseth Dec. Plaintiffs move the Court to compel Muller to provide a further response to Request No. 59 in the set. Muller opposes th...

Excerpt: ...jury, often equated with an “inadequate legal remedy.” Code of Civil Procedure section 526(a)(2); Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1084. The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action. Korean Philadelphia Presbyterian Church, supra. The irreparable injury will exist if the...

Excerpt: ...epartment, violated her civil rights by disregarding her complaint about being attacked, falsely claiming that Plaintiff was the aggressor and seeking to file baseless charges against her, and threatening her, all based on various improper motives including racial or other discrimination. Defendants include the chief of police Kevin Burke (“Burke”) and four police officers (“the Officers”), Teygan Mason (“Mason”), Darryl Erkel (“Erk...

Excerpt: ...e a cause of action, is SUSTAINED with leave to amend for the reasons explained below. The demurrer to the cross-complaint for uncertainty is OVERRULED for the reasons explained below. Request for Judicial Notice Plaintiff/Cross-Defendants seek judicial notice of the complaint in this action (Ex. 1), a Google Maps aerial photograph form the public domain (Ex. 2), notices and orders and other documents purportedly sent to Defendants/Cross-Complain...

Excerpt: ...ions 2030.300, 2031.310. The moving party must make adequate attempts to meet and confer. Ibid. Generally, once a timely, proper motion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers. Coy v. Superior Court (1962) 58 Cal.2d 210, 220- 221. A party moving to compel further responses to a production request, however, must demonstrate “good cause" for seeking the items. Code...

Excerpt: ... set forth below. Cross-Defendant Loanvest VII, L.P.'s Motion to Expunge Lis Lindens and Request for Attorney Fees GRANTED as set forth below. Motion to Set Aside Default Code of Civil Procedure section 473(b) allows plaintiffs and defendants to set aside dismissals or defaults. This motion must normally be made within a reasonable time, not to exceed six months from the date the order was entered. Code of Civil Procedure section 473(b). Code of ...

Excerpt: ...damages. The Court grants this request. Defendant moves the Court to quash services of the summons and complaint or, alternatively, to set aside the default and judgment. Relying on Code of Civil Procedure section 473(d), it argues that service is void because service failed to comply with the requirements. It also argues that the Court should set aside the default and judgment based on Code of Civil Procedure section 473(b) since it allowed the ...

Excerpt: ...nto a binding arbitration provision covering this dispute and Plaintiff's claims. The Court granted the motion after the May 29, 2019 hearing. Plaintiff contends that after the order for arbitration, the parties stipulated to the selection of retired Judge Scott Snowden (“Snowden”) with JAMS as arbitrator but that Defendants have now withdrawn that consent unilaterally and wish to obtain a different arbitrator. Facts and History of the Arbitr...

Excerpt: ...ppearing on the face of the complaint, exhibits thereto, and judicially noticeable matters. Code of Civil Procedure section 430.30; Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The grounds for a demurrer are set forth in Code of Civil Procedure section 430.10. One of the grounds, in subdivision (e), is the general demurrer that the pleading fails to state facts sufficient to constitute a cause of action. Demurrer for failure to state facts sufficie...

Excerpt: ...g prior to April 15, 2020, until April 15, 2020. Plaintiffs accordingly were allowed up to April 15, 2020 to file their opposition. They filed the opposition on that date, making it timely. Defendant Ridgely Oliver Muller, M.D. (“Muller”) moves for summary judgment or, alternatively, summary adjudication against Plaintiffs' complaint. Preliminarily, he calls this a motion for summary judgment or adjudication but it is in effect simply a motio...

Excerpt: ... using the information outside this litigation. The motion is DENIED in all other respects, including the request to quash the subpoena or issue a protective order limiting the information and records to be produced. Plaintiff served Wells Fargo & Company (“Wells”) with a deposition subpoena for production of business records on January 22, 2020 seeking production of the statements, cashiers' checks, deposits and credits, checks, withdrawals,...

Excerpt: ...is is not clear. Except for any part of the motion which the Court finds to be moot, or for which the parties demonstrate otherwise, Motion to Compel Post Construction Services, L.P. to Further Respond to Defendant's Requests for Production of Documents and to Produce Additional Documents GRANTED. Reasonable sanctions of $7,276.75, based on 18 hours of work, awarded to the moving party. Denmark moves the Court to compel further responses and prod...

Excerpt: ...ica (1972) 6 Cal.3d 920, 939. As long as the motion is “timely” and will not prejudice a 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. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice...

Excerpt: ...t making a prima facie showing that plaintiff cannot establish at least one element of any cause of action, or there is a complete defense to the cause of action. 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 cannot be established only if its undisputed facts negate plaintiff's allegations as a matter of law and would make it impossible for plain...

Excerpt: ...same cause of action, the prior judgment is a complete bar. Edmonds v. Glenn-Colusa Irr. Dist. (1933) 217 Cal. 436, 445; see also 7 Witkin, Cal. Proc. (5th Ed. 2008), Judgment, sections 334-335, 402. The doctrine applies only between the same parties or where there is “substantial identity” of the parties. Code of Civil Procedure sections 1908, 1910; French v. Rishell (1953) 40 Cal.2d 477, 481; see also, 7 Witkin, Cal. Proc. (5th Ed. 2008) Ju...

Excerpt: ... for a demurrer are set forth in Code of Civil Procedure section 430.10. The grounds, as alphabetically identified in the statute, are: (a) the court lacks subject-matter jurisdiction; (b) the person filing the complaint lacks legal capacity to sue; (c) another action pending between the same parties on the same cause of action; (d) defect or misjoinder of parties; (e) the pleading fails to state facts sufficient to constitute a cause of action; ...

Excerpt: ...y, 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. Superior Court (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party. Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490. Prejudice ex...

Excerpt: ...ure section 128.7. Defendant seeks an order that 1) Plaintiffs not seek further merits-based relief until completing the class notice and opt-out procedures; 2) Plaintiffs submit a proposed class notice; and 3) Plaintiffs and their counsel pay costs of this motion and the opposition to the failed motion for summary adjudication. It contends that Plaintiffs clearly failed to meet their burden on the motion for summary adjudication and that Plainti...

Excerpt: ...arty” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there is no defense to the cause of action, or that an affirmative defense has no merit, or that there is no merit to a claim for damages “as specified in” Civil Code section 3294, or that a party did or did not owe a duty. Code of Civil Procedure section...

Excerpt: ...ivil Procedure section 526(a)(2); Korean Philadelphia Presbyterian Church v. Cal. Presbytery (2000) 77 Cal.App.4th 1069, 1084. The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action. Korean Philadelphia Presbyterian Church, supra. The irreparable injury will exist if the party seeking the injunction will be seriously injured in a way that late...

Excerpt: ...uit but not of the Settlement. Upon further review of the Declaration of Attorney John Scheppach, the Court is satisfied notice of the settlement was provided to LWDA. Motion is GRANTED. The determination granting the motion and final approval of the Settlement will include the request for attorneys' fees and costs, payment of administrator expenses, and enhancement for named class Member Andrew Pomele, all made as part of this motion. The Court ...

Excerpt: ...right of reentry during the unexpired term of the original lease. See, Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 492, fn.2; Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 352; Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 242-243. Assignment or a novation transferring all rights and obligations of the original tenant to a new tenant by agreement between the landlord, o...

Excerpt: ...” The written version of the settlement, a written copy of which Defendant provides in the moving papers, is signed November 28, 2017 and likewise expressly states that the Court is to “maintain jurisdiction in order to enforce the terms of this Agreement.” Settlement section 4.16. When a party seeks to enforce a stipulated settlement entered in writing or orally before the court, the court “may enter judgment pursuant to the terms of the...

Excerpt: ... or there is a complete defense to every cause of action. Code of Civil Procedure section 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. A defendant shows that an element cannot be established only if its undisputed facts negate plaintiff's allegations as a matter of law and would make it impossible for plaintiff to show a prima facie case. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. Once the moving party has met its...

Excerpt: ...wed for loan modification, inducing them to act in reliance on this representation, to Plaintiffs' detriment. AmeriHome argues that Plaintiffs fail to plead this with requisite particularity and Plaintiffs fail to plead the elements of misrepresentation. The elements for negligent misrepresentation are similar to fraud, but without the same level of intent and knowledge: 1) misrepresentation; 2) of a material fact; 3) no reasonable ground for bel...

Excerpt: ...r than the enhanced remedies for elder abuse, solely based on the requirements of Code of Civil Procedure section 425.13. Plaintiff may resolve this issue by seeking to comply with Code of Civil Procedure section 425.13. Requests for judicial notice is denied as to the purported correspondence from the demurrer facilitator but granted as to the documents on file in the Court's record. Demurrer Second Cause of Action: Elder Abuse Welfare and Insti...

Excerpt: ...stice. Collins v. State of California (2004) 121 Cal.App.4th 1112, 1123; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems (1999) 20 Cal.4th 1135, 1145. As stated in Collins, supra, at 1124, [u]ltimately, disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern must be to preserve public trust ...

Excerpt: ...which support factual assertions which he admits are undisputed and true, such as, e.g., the Ivancovich Declaration, Ex. D. Most of the objections are based on Plaintiff's primary argument that the witness, Ivancovich, is not a custodian or other properly qualified to as a witness, and lacks personal knowledge needed, to authenticate Defendant's records, a core part of Defendant's evidence, and that she lacks personal knowledge of the events she ...

Excerpt: ...�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 Welfare and Institutions Code section 15657 requires a culpability greater than mere negligence and is limited to acts of egregious a...

Excerpt: ...or the evidence excluded based on these objections but is based on the assumption that no objections have been sustained. Any “party” may move for summary adjudication. Code of Civil Procedure section 437c(a), (f). For summary adjudication, the “party” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty if the party contends that the cause of action has no merit or that there ...

Excerpt: ...tect the constitutional right of petition and free speech and it protects a broad variety of conduct which subdivisions (b)(1) and (e) define as being any “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue.” See also Braun v. Chronicle Pub. Co. (1997) 52 Cal.App.4th 1036, 1044-1045. Subdivision (b)(1) states that the special motion to strike a...

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...ive means exist to achieve the overriding interest. Plaintiff merely wants to redact certain information in the Business Agreement (“Agreement”) and the DeLuca declarations provide both an unredacted version which Plaintiff wishes to seal and a redacted copy as Plaintiff wishes to file it unsealed, with the specific portions redacted. The redacted portions amount to only a few small parts of one page of the three-page document. These portions...

Excerpt: ...and Moore v. Liu (1999) 69 Cal.App.4 th 745 that she must demonstrate that on the merits her motion to strike would have been granted. This court is not persuaded that the motion to strike would have been granted because the court does not find that the amended cross complaint (“ACC”) of Daniel Cortright (“Cortright”) arose from an “act in furtherance of a person's right of petition or free speech under the United States or Californ...

Excerpt: ...rocedure section 438(c). When brought by a plaintiff, a motion for judgment on the pleadings must be based on the assertion “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to <0003005200490003002600 00460048004700580055>e section 438(c)(1)(A). Otherwise, the rules governing demurrers basically apply. Cloud v. Northrop Grumman Corp. (1998) ...

Excerpt: .... Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129;Bogard v. Employers Casualty Co. (1985) 164 Cal. App. 3d 602, 618. A party may not attack a remedy on a demurrer and may demur only to the cause of action itself. Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562. See also Caliber Bodyworks, Inc. v. Sup. Ct. (Herrera) (2005) 134 Cal.App.4th 365, 385; Weil&Brown 7:42.1. After all, the statute, Code ...

Excerpt: ...o. v. Sup. Ct. (1985) 173 Cal.App.3d 274, 280-281. Defendant argues that the California Sherman Food, Drug, and Cosmetic Law (Health & Saf. Code, §§ 109875 et seq.) (“Sherman Law”) provides for no private right of enforcement but Defendant cites no directly applicable authority. In fact both state decisions such as Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, at 1095-1099, and federal decisions such asBrazil v. Dole Food Co., Inc. (N.D....

Excerpt: ...usion on the merits of the motion. The objections to the new evidence submitted in the Clifford and Coombs transcripts supplied with the Robinson reply declaration are SUSTAINED. This is improper new evidence provided in reply. In any case, this new evidence would not change the outcome of the motion. Except to the extent that it relies on the cited new evidence, the reply separate statement is not objectionable, merely poses arguments and respon...

Excerpt: ...concedes that the first cause of action is invalid against Defendant Michael Rosetti (“Rosetti”) and has stated that Plaintiff will dismiss that cause of action. Unless Plaintiff has already done so, the Court also hereby sustains the demurrer to that cause of action solely as to Rosetti. Defendants attack the first cause of action for breach of the covenant of good faith and fair dealing by arguing that this cause of action cannot be based o...

Excerpt: ... and does not remember ever obtaining or using it. He uses this evidence to dispute each of Plaintiff's proffered facts. This is sufficient to create a triable factual dispute because Plaintiff provides evidence showing that Defendant obtained the credit account and incurred a debt while Defendant provides evidence showing that he did not. The Court notes that in part Defendant's evidence is couched in terms of what Defendant remembers, specifica...

Excerpt: ...y made clear that the Court was not going to impose them and yet Defendant failed to appear to challenge the ruling as to that issue, which she could have done. Defendant fails to explain why she did not, or could not, have done so. In any case, even if the Court were to reconsider the ruling, it would not alter the ruling in any way and finds that the ruling was correct. The Court had discretion not to impose such sanctions and the Court finds t...

Excerpt: ...on the pleadings, Plaintiff has failed to cure the defects which this Court noted. The only changes Plaintiff made to this cause of action are at ¶¶`16- 18 and consist of minimal additional, and largely conclusory, allegations of a special relationship; use of specific terminology such as “the Biakanja factors”; and further, though largely repetitive, allegations of delay and Defendant's use of inaccurate information violating the duty of c...

Excerpt: ...with a “Gross Settlement Fund” of $135,000 to pay $45,000 in attorneys' fees, a maximum of $6,000 in costs, a $5,000 award to the named Plaintiff as class representative, payment to the California Labor and Workforce Development Agency of $1,875 as civil penalties, administration costs of $8,000, and the remainder, $69,125, as the net settlement fund to be paid to the class members with shares based on the number of weeks that each member wor...

Excerpt: ...Gift Trust (MRV). Defendant contends that he is seeking damages in excess of the judgment herein. Defendant has filed a lawsuit against MRV and its principals for indemnity, arguing that the judgment obtained by Lonich was due to MRV's improper acts in agency. MRV responds, contending that the parties are not the same in both litigations. MRV notes that while it is a named Defendant in the Sacramento Litigation, it is the assignee of the judgment...

Excerpt: ...gue that it was part of one larger agreement which includes other documents which include the arbitration provision on which Defendants now rely. Defendants' papers include several different agreements. These include the JV Agreement which Petitioner includes with its complaint as well as a T1 Club Corporate Member Agreement (Club Agreement), both included together in Defendants' papers as Attachment 1. They also include the covenants not to sue/...

Excerpt: ...d real property claim and opposing the motion with arguments consistent therewith, had merely failed to provide any evidence supporting his claims. Plaintiff has remedied that defect in this motion. Code of Civil Procedure section 405.8, in the title governing lis pendens, expressly allows a party also to obtain an injunction, attachment or other relief. It states “[n]othing in this title precludes any party from seeking an attachment, injuncti...