Excerpt: ...accident that occurred on October 20, 2018 on Route 116 in Sonoma County. (Second Amended Complaint (“SAC”) at p.5.) In their complaint, Plaintiffs allege that “Defendant negligently drove his vehicle by failing to keep his vehicle in his lane and driving it into oncoming traffic and Plaintiff's vehicle at the above time and place.” (Ibid.) Plaintiffs also allege that “[a]s a direct and proximate result, Plaintiffs suffered serious pers...

Excerpt: ...rises from claims Defendant failed to pay its employees for all hours worked and failed to provide employees with off-duty or off-premises meal and rest breaks. Defendant disputes the claims. The parties conducted “comprehensive discovery” and engaged in 21 months of settlement negotiations, including an all-day, arm's-length mediation with Mark S. Rudy. Thereafter, the parties reached the present settlement (‘the Settlement”). The total ...

Excerpt: ...ant to Cal. Code Civ. Proc. (“CCP”) § 430.10(e) for failure to state facts sufficient to constitute a cause of action and CCP § 430.10(f) for uncertainty, as well as Defendant's motion to strike pursuant to CCP § 435 et seq. I. Legal Standards A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. CCP § 430.30(a). A demurrer...

Excerpt: ...tion for open book account and account stated. It seeks $16,953.12 as the fixed amount owed. Defendant was originally represented by counsel but in October 2020 this court granted the counsel's motion to be relieved, leaving Defendant self represented. Motion This matter is now on calendar for Plaintiff's Motion for Summary Judgment or in the Alternative for Summary Adjudication in favor of Plaintiff on its own complaint against Defendant. As an ...

Excerpt: ...limitations. Defendants argue that each of the causes of action accrued in 2013 when plaintiff was allegedly sexually assaulted by a male masseuse during a therapeutic massage at defendant Me Cotati's Massage Envy franchise, and that each of the applicable statutes of limitations expired no later than December 31, 2017, long before the complaint was filed. Defendants further argue that CCP section 340.16 does not revive any of plaintiff's lapsed ...

Excerpt: ...itration proceeding. Factual Background By order dated April 26, 2018, this Court granted the petition of Defendant Kaiser Foundation Health Plan, Inc. (“Defendant” or “Kaiser”) to compel arbitration. On May 15, 2018, pursuant to Code of Civil Procedure (“CCP”) section 1008, Plaintiff Andrea Adilene Perez (“Plaintiff” or “Decedent”) filed a motion for reconsideration of the April 26 order, which was denied. Then, on May 23, 20...

Excerpt: ...mino Del Prada Way, Santa Rosa, CA that was improved with only a foundation. (SACC at ¶¶14, 18.) Plaintiff was a subcontractor for the foundation project; Gregory Mitchell was the general contractor; Sandhu was the buyer; Carmen Marinsik was the seller; Pearson Properties, Inc. was the broker; Nadine Reyes was the real estate agent; and Fidelity was the escrow company. (Id. at ¶¶1-8.) Stacey Ankrom was the assigned Escrow Officer for the Fide...

Excerpt: ...he Complaint (violations of the California Family Rights Act (“CFRA”)); and 2) of the sixth cause of action in the Complaint (violations of the California Family Medical Leave Act (“FMLA”)) For the reasons set forth below, the Motion is DENIED. I. Underlying Facts SSU is an employer who falls under the provisions of the FMLA and CFRA. Plaintiff's Separate Statement of Facts in Support (“PSS”) ¶ 2. Plaintiff was a full time employee o...

Excerpt: ...ally, it appears moving party is seeking an order “opening” discovery with respect to the underlying complaint and upon the first three causes of action (COAs) in the cross-complaint (to the extent those COAs still remain pending against any of the cross-defendants). Moving party states that plaintiff and cross-defendants have taken the position that all discovery is currently stayed. Within the motion, moving party acknowledges that, pursuan...

Excerpt: ... substantial factor in causing injury to Plaintiff. For the reasons stated below the motion for summary judgment is DENIED. Procedural Background On April 12, 2019, Plaintiff filed the instant lawsuit in Alameda County Superior Court bringing a single cause of action for professional medical negligence against defendants Sutter Santa Rosa Regional Hospital (SSRRH), Dr. Pride, and Dr. Prieto. (Declaration of Alexandra C. Seibert, Esq. (“Seibert ...

Excerpt: ...rounds for the demurrer are: (1) the complaint is barred by the doctrine of res judicata (this Court interprets this ground to be made under CCP section 430.10(e) for failure to state facts sufficient to constitute a cause of action); (2) the complaint fails to state any facts sufficient to constitute any cause of action (CCP section 430.10(e)); and (3) the complaint is barred by the statute of limitations (this Court interprets this ground to be...

Excerpt: ...ents with the clerk to have the file in the courtroom at the time of the hearing or confirm with the clerk that the file is electronically accessible to the court.”]; see also, Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 [A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, a...

Excerpt: ...ber 2, 2020, by filing a Petition for Order Determining Trustee's Title to Real and Personal Property (“the Petition”). The Petition seeks confirmation that title to real property located at 19459 Hidden Valley Road, Guerneville, CA (“the Property”) and that certain cash, funds, and securities are assets of The Jennifer Ann Donovan Living Trust created on July 27, 2017 (“2017 Trust”). Petitioner is the current trustee of the 2017 Trus...

Excerpt: ...action is SUSTAINED, with leave to amend, and the demurer to Plaintiffs' negligence cause of action is SUSTAINED, without leave to amend. Plaintiffs have thirty (30) days from the hearing to file a Third Amended Complaint. The motion to compel further responses to requests for production is DENIED on the grounds Hughes' separate statement is fatally defective. Hughes' request for sanctions is DENIED. 1. Facts Relevant to Both the Demurrer and Mot...

Excerpt: ... or set forth the objectionable statement or material…”].) Power's Objections to Evidence in the opposition numbers 1-8 are OVERRULED. Power's motion for summary judgment or, in the alternative, motion for summary adjudication is DENIED, in its entirety. 1. General Rules for Summary Judgment and Summary Adjudication. “Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled...

Excerpt: ...adeh and Faramarz Pirzadeh (“Pirzadehs”). (Complaint at ¶6.) Plaintiffs allege Defendant manufactured the generator and sold it to the Pirzadehs, who then sold the generator to Plaintiffs from a Craigslist advertisement. The Pirzadehs were initially named as defendants but on July 21, 2021, the Court granted their motion for summary judgment and entered their request for dismissal on August 16, 2021. The complaint alleges that after using th...

Excerpt: ...dant filed this motion on July 2, 2021, that request is DENIED on the grounds Defendant has not sufficiently demonstrated that the Order was entered as a result of her “mistake, inadvertence, surprise, or excusable neglect” and she has not explained how she intends to address any “mistake, inadvertence, surprise, or excusable neglect” in further pleadings. Specifically, the Code states that “[t]he court may, upon any terms as may be jus...

Excerpt: ...ion. Plaintiff's request for sanctions covering his attorney's fees is DENIED. Initially, the Court rejects Plaintiff's argument that the Court lacks jurisdiction to rule on this motion based on the fact Plaintiff did not get proper notice. In fact, pursuant to the parties' stipulation, the Court continued the hearing to September 15, 2021 and the Court's Order was served to counsel for both parties. Thus, Plaintiff cannot credibly claim he did n...

Excerpt: ...tion for summary judgment or, in the alternative, summary adjudication is DENIED, in its entirety. This action arises from a slip and fall at the Sandman Hotel in Santa Rosa, California. In her complaint, Plaintiff alleges that she was injured while working as a front desk clerk at the hotel when she slipped on a blanket/tarp that covered the floor in a construction zone at the hotel. (UMF 1.) It is disputed who Plaintiff's employer was at the ti...

Excerpt: ...irage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 262 [a trial court has broad discretion to accept or reject late-filed papers.].) The Code provides that “[t]he court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other ci...

Excerpt: ...ruling continuing the matter, the Court also observed: That being said, if the representations made in Petitioner's motion and supporting declarations are proven true by the exhibits hereinafter filed, and if indeed Respondents have not provided a code compliant accounting by the time of the hearing, as this Court has repeatedly ordered, the Court is inclined to grant Petitioner relief. It is often, and unfortunately, a repeated factual scenario ...

Excerpt: ...epayment and a guarantee by defendants Robert W. Rex (“RWR”) and Paulette J. Rex (“PJR”). (Ibid.) In her FAC, Plaintiff asserts causes of action for breach of contract and declaratory relief based on Defendant's alleged breach of the Note and the Rexs' failure to honor the guarantee. Plaintiff's original complaint was filed August 3, 2020 and her FAC was filed May 6, 2021. In this demurrer, Defendants challenge both causes of action under...

Excerpt: ...file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.].) Defendants' Request for Judicial Notice of Exhibit B (an unsigned and unfiled response to a petition for dissolution) and Exhibit C (excerpts from a September 8, 2020 hearing in the parties' dissolution action) is DENIED. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, f...

Excerpt: ...afety Code, as well as a claim for civil penalties under PAGA for multiple Labor Code violations affecting employee safety at Aurora Santa Rosa.” (Motion at 7:12-15, citing Valerian Dec. at ¶8.) The parties actively litigated the case since it was filed on February 2, 2018 and participated in multiple mediations with at least two different mediators before finally reaching a preliminary settlement on April 26, 2021. (Id. at 7:19-8:23.) On June...

Excerpt: ...� facts and alternative theory of liability, i.e., that Terry's counsel only recently discovered facts purporting to show that Plaintiff and Cross-Defendant Greg Levy (“Levy”) made statements during his unrelated 2013 dissolution action that contradict certain positions he has taken in this case. Specifically, Terry states that “[i]n this case, Levy claims that he and Terry are business partners who leased real property from him (Levy) to o...

Excerpt: ...n of the same cause of action in a second suit between the same parties or parties in privity with them.” (Ibid.) It arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.” (Ibid.) By contrast, “[i]ssue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action....

Excerpt: ...nection with that same action. Accordingly, Defendant is awarded a total of $122,916.00 in attorneys' fees as the prevailing party on appeal and in connection with his efforts to enforce the underlying judgment. In his motion, Defendant seeks attorneys' fees and costs incurred on appeal and during enforcement of the judgment. Defendant brings the motion pursuant to Rule of Court 8.278, which states in part that “the party prevailing in the Cour...

Excerpt: ...Exhibit 7 is DENIED. It was served one day before the reply was due and was thus untimely, depriving defendant of an opportunity to address such. Defendant's demurrer to Plaintiff's Second Amended Complaint (“SAC”) and the causes of action asserted therein for insurance bad faith; breach of contract; false promise; and negligent misrepresentation is SUSTAINED. Unless oral argument is requested by Plaintiff for the purpose of, at least in part...

Excerpt: ... Auto-Owners Ins. Co. (2015) 233 Cal.App.4th 783, 789, citing, Elkman v. National States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) The case arises from a $100,000 loan (the “Note”) that Plaintiffs made to Defendant's father, Hector Andrade (“Hector”). (Complaint at ¶6.) The loan was secured by real property located at 2425 Guerneville Road, Santa Rosa, CA, which was where Hector lived and which was co-owned and jointly owned by H...

Excerpt: ... rules as follows: Defendants' Request for Judicial Notice of Exhibits 1-2 in support of the demurrer is GRANTED. Plaintiff's Request for Judicial Notice of Exhibit A in opposition to the demurrer is GRANTED and Exhibit B is DENIED. The Court's February 28, 2020 order denying the HOA's motion for summary judgment to Johanna Szostak's cross-complaint is not relevant to this demurrer. (See, Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison ...

Excerpt: ...ty of San Francisco (2006) 142 Cal.App.4th 480, 487 fn. 3 [Court may take judicial notice on own motion.].) The Trustee's demurrer is SUSTAINED, without leave to amend, on the grounds her claim is barred by the doctrine of res judicata. The doctrine of res judicata has two aspects, claim preclusion and issue preclusion. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) Generally, courts use the term “res judicata” to describe claim pr...

Excerpt: ...ust instrument, by the court on its own motion, or on petition of a settlor, co-trustee, or beneficiary under Section 17200.” (Prob. Code §15642(a).) Section 15642(b) sets forth grounds for removal of a trustee, which include “[w]here the trustee has committed a breach of the trust” and “[w]here the trustee fails or declines to act.” (Probate Code §15642(b).) The breach of the duty of loyalty, or any of several other statutory duties,...

Excerpt: ...r recoverable attorney's fees. (See, Code Civ. Proc. §405.38 [“The court shall direct that the party prevailing on any motion under this chapter be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the other party acted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.”].) The Code states that “[a] party to an actio...

Excerpt: ...vidence, the Court rules as follows: Plaintiffs' Objections to Evidence Nos. 1-13 are OVERRULED and Defendants' motion for summary judgment is GRANTED. 1. Background Facts. This case arises from Mr. Shapiro's purchase of a generator from Defendants. (Complaint at ¶6.) Although not alleged in the complaint, Mr. Shapiro found the generator on Craigslist and “made contact with whom he was told was the seller, Nima Pirzadeh.” (Motion at 5:2-3.) ...

Excerpt: ...ts documents that are not likely to lead to the discovery of admissible evidence. I. Factual Background Lynn Pardini is one of two surviving children of Decedent, Myrtle D. Simons, who was the surviving Trustor and Settlor of the Robert Simons and Myrtle D. Simons Trust, dated March 19, 1995 (the “Trust.) (See Request for Judicial Notice (“RJN”) filed concurrently hereto of the Petition to Determine Validity of Purported Trust Instrument; C...

Excerpt: ...in Marin County). The cases are as follows: 1. Andrew Rowley v. Joseph Louordeaux and Shana Lourdeaux filed on May 16, 2018, Marin County Superior Court before the Hon. Andrew Sweet, Case No. CIV-1801662 (“Marin County case”); 2. The present case, Monica Rowley v. Sports Equity Partners, LLC, et al., filed on May 17, 2019 before this court (the “Lead case”); 3. Andrew Rowley and Monica Rowley v. Joseph Lourdeaux, Wallace Lourdeaux, Bradle...

Excerpt: ...AC at ¶5.) Plaintiff alleges he “delivered the vehicle to the Manufacturer's authorized service and repair facilities, agents and/or dealers, including Seller, on at least three (3) occasions resulting in the vehicle being out of service by reason of repair of nonconformities,” including for the “check engine light, loss of power, and transmission failure leading to replacement on multiple occasions.” (Id. at ¶¶10-11.) Plaintiff claims...

Excerpt: ...h legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.”] (emphasis added); see also, Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 fn. 3 [“Of course, trial...

Excerpt: ... break and subsequent landslide that damaged Plaintiffs' property in Cloverdale, CA on February 18, 2017. Plaintiffs filed their operative first amended complaint on July 9, 2019 and assert causes of action for “improper removal of subjacent/lateral support” and nuisance against the Greenfield defendants (who were added as Doe Defendants 11, 12, and 13.) Specifically, Plaintiffs allege that Defendants “maintained their property in such a wa...

Excerpt: ...ment are void because the summons and complaint were not properly served in strict compliance with Code of Civil Procedure section 415.50. Alternatively, Defendant moves under Code of Civil Procedure section 473.5 on the grounds that the summons by publication did not result in actual notice to Defendant in time to defend the action because Defendant first learned of the case in March 2021, after the judgment was entered. In the second motion, De...

Excerpt: ...er contends “[i]t is generally recognized the summary unlawful detainer action is not a suitable vehicle to try complicated ownership issues involving assertions of fraudulent acquisition of title and deceptive practices” and therefore, Petitioner “seeks to consolidate these two relevant actions, which are not complex, in the interests of judicial economy, as both pertain to the same parties, facts, dispute, and evidence.” (Motion at 3:23...

Excerpt: ...milarly situated, (“Plaintiff”) alleges that JRK Residential Group, Inc. (“JRK”) failed to maintain accurate time records and pay Plaintiff for all hours worked. Plaintiff further alleges that rather than keep “to the minute” records, JRK used an inaccurate accounting system which failed to account for all hours worked due to an inaccurate decimal conversion system, which resulted in transitional math errors, and a resulting system of...

Excerpt: ...itioner]; and (2) Taking any action to evict, or otherwise remove, Petitioner from the Property pending trial in this action.” (May 18, 2021 Order at 1:8-13.) Initially, the Court notes that although the Order gave Petitioner an opportunity to file “additional moving papers” by June 1, 2021, Petitioner did not file any additional briefs or supporting evidence. On June 9, 2021, the Trustee filed an opposition to the OSC and supporting eviden...

Excerpt: ...days leave to file a second amended complaint. This action involves a dispute between a sister (Plaintiff) and brother (Defendant) arising from Defendant's alleged breach of a September 6, 2016 settlement agreement reached between Plaintiff, Defendant, and their late-mother, Yvette Poisson. (FAC at ¶¶5, 10, citing Ex. A.) Under the terms of the agreement, Plaintiff agreed to vacate a property where she had been living, that was owned by Yvette'...

Excerpt: ...e FAC, Plaintiff alleges: ꞏ On or about February 16, 2007, Orr provided Wells Fargo, National Association (“Wells Fargo”) with her personal and private social security number by executing a Uniform Residential Loan Application - Fannie Mae Form 1003 (“1003”), a Note and First Trust Deed in the amount of $735,000 in favor of Wells Fargo; ꞏ Orr had a reasonable expectation of privacy when providing her personal social security number to...

Excerpt: ...ests for admissions, and requests for production of documents. Defendants contend that Plaintiff's responses are “[w]holly inadequate” and “improperly assert[] nearly every objection permitted under the Code of Civil Procedure, despite the fact that most questions asked by Defendants were taken almost verbatim from Plaintiff's Complaint.” In their original motion, Defendants sought $1,985 in monetary sanctions however; Defendants request ...

Excerpt: ... raised in both. For example, in addition to its claim for an implied easement over the AC Driveway, Plaintiff's complaint asserts causes of action for private nuisance and declaratory relief. Neither of these causes of action is specifically addressed in the motion. Additionally, Defendants' own cross-complaint asserts causes of action for injunctive relief, declaratory relief, trespass, damages to property, damages to fair market value of rent,...

Excerpt: ...Civil Procedure, provides that items recoverable as costs include attorney fees when authorized by contract. (Code Civ. Proc. §1033.5(a)(10)(A).) The judicial proceedings covered by this provision include petitions to confirm or vacate an arbitration award. (Code Civ. Proc. §1285 [“Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.”].) Thus, on a successful petition to...

Excerpt: ...associated damages for denying the petitioner the right to a fair trial on the issues during the course of his Unemployment Insurance Appeal…” (Motion at 1:20-23.) No opposition has been filed to this Petition. The petition originally came for hearing on May 12, 2021 but due to technical difficulties, Petitioner was not able to present oral argument. The Court initially adopted its tentative ruling to deny the Petition but on May 19, 2021, af...

Excerpt: ...ords in support of the motion. The Court has received and reviewed those documents and while there is no dispute that a criminal investigation is ongoing and no dispute the investigation involves many of the same allegations at issue here, Respondent has not shown that a blanket stay of the civil action is warranted in this case. Accordingly, Respondent's motion to stay is DENIED. With respect to Respondent's motion to quash, the Court notes that...