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: ...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: ...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: ...al.4th 26, 38; Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4 th 1068, 1078 (“as long as a complaint consisting of a single cause of action contains any well-pleaded cause of action, a demurrer must be overruled even if a deficiently pleaded claim is lurking in that cause of action as well.”) Respondent Deborah Senecal (“Senecal”) argues that “Petitioner has not pled the necessary facts that he is the son of the Deceased.” However, P...

Excerpt: ...t: $7,322.15. However, the moving party relies on the wrong statute: CCP §701.020. CCP §701.020 falls under the chapter governing enforcement of money judgments by execution, not the chapter governing earnings withholdings orders. “Except as otherwise provided by statute, this chapter governs enforcement of a money judgment by a writ of execution.” (CCP §699.010.) And, as the Law Revision Commission Comments to section 699.010 state: “Se...

Excerpt: ...Insurance Company had a duty under a homeowners policy to pay them for their losses due to the destruction of their home in the Tubbs fire. Mid-Century, in turn, moves for summary judgment or adjudication on the ground that there was no insurance policy in effect at the time of plaintiffs' loss, therefore, plaintiffs cannot prove any of their claims. Mid-Century's request for judicial notice of the complaint is granted. Plaintiffs' residence was ...

Excerpt: ...ards, shall authorize, in writing, George Montana Hartley to deal with the County of Sonoma regarding the process of and obtaining the permits necessary to legalize the barn at 310 Pleasant Ave., Santa Rosa, CA as a dwelling unit so he can continue to reside in the barn for 10 years after 6/28/14, as intended by the Settlor. 7. George Montana Hartley may attempt to legalize the barn as a dwelling unit, and shall pay all expenses incurred to make ...

Excerpt: ...e claim for punitive damages in the FAC and the court granted the motion. The court found that alleging the defendant drove while intoxicated and caused an accident where the plaintiff was injured, even seriously, is an insufficient basis for punitive damages under Civil Code §3294. The denial of plaintiff's Petition for Writ of Mandate, filed after the above ruling, included the reasoning that since plaintiff could move “to amend his complain...

Excerpt: ...t 3.1350(e). “‘Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.' [Citation.]” (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 568.) Additionally, plaintiffs submitted papers responding to defendants' reply documents. Such “sur-reply” papers are not authorized, but even if the papers were allowable...

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: ...ts. Therefore, the motion is denied without prejudice. Health & Safety Code § 17980.7(c) provides: “The enforcement agency, tenant, or tenant association or organization may seek and the court may order, the appointment of a receiver for the substandard building pursuant to this subdivision. In its petition to the court, the enforcement agency, tenant, or tenant association or organization shall include proof that notice of the petition was se...

Excerpt: ...ht two continuances of the hearings and then failed to appear for the last hearing. Consequently, the court issued a bench warrant. Plaintiff currently has an enforceable lien on defendants' personal property pursuant to CCP §708.110(d). However, the lien expires on March 4, 2020. Plaintiff now moves to extend the lien by court order so as to avoid the alternative way to extend the lien through costly annual judgment debtor examinations. “[A]l...

Excerpt: ...iefing on only the issue of whether the court can decide on demurrer whether the Separation Agreement applies to the trust. Initial briefing shall be filed on or before November 8, 2019 and any responsive briefs shall be filed on or before November 21, 2019. Because the pleadings are not yet settled, the court will continue the trust petition hearing currently set for November 21, 2019 to January 2, 2020 at 2:30 p.m. in Department 18. DEMURRERS: ...

Excerpt: ...mmon counts] are good against special as well as general demurrers.” (4 Witkin, Cal. Proc. 5th Plead § 553 (2008); see also, Moya v. Northrup (1970) 10 Cal.App.3d 276, 279: “A pleading which is sufficient as a common count is not generally subject to general demurrer or to special demurrer on the ground of uncertainty.”) Furthermore, special demurrers are impermissible in limited civil cases. (CCP §92(c).) Additionally, if the court did r...

Excerpt: ...ides that plaintiff will dismiss the action while the parties request the court retain jurisdiction to enter judgment under CCP §664.6 in the event defendant defaults on the settlement payments. That would have been the preferred course to vacating a judgment entered over six months ago, but as explained below, the court will exercise its equitable authority to vacate the judgment under the unique circumstances at bar. Six months has passed sinc...

Excerpt: ...ny judge or court unless made according to this section.” Here, plaintiff has failed to comply with CCP §1008(b), which states: A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when ...

Excerpt: ...98 offer”). The 998 offer was accepted by defendants on June 28, 2019. Only counsel for the parties signed the 998 offer. As an initial matter, it is unclear why plaintiff resorts to CCP §664.6 at all when plaintiff presumably could have obtained entry of judgment by filing the 998 offer and acceptance. As CCP §998(b)(1) provides: “If the offer is accepted, the offer with proof of acceptance shall be filed and the clerk or the judge shall e...

Excerpt: ...to the action…in any action in which the mental or physical condition…of that party or other person is in controversy in the action.” “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.” (CCP §2032.320(a).) “Generally, finding a condition ‘in controversy' poses no great difficulty. Allegations of physical or mental injury in the complaint and denial of the injury or...

Excerpt: ... the business of providing animal processing services throughout North and South America and Chavez alleges they employed him as a sanitation worker in California. According to Vincit's website, it is a “single source provider” with a “network of eight member companies that delivers maximum efficiency through vertical integration.” QSI is listed as one of Vincit's eight member companies. As part of a comprehensive tentative ruling, this c...

Excerpt: ... beneficiaries of the Trust. Petitioner alleges Peter and Lydiaexertedundue influence over their mother and engaged in financial elder abuse. Specifically, she alleges the following causes of action: (1) recission and nullification of purported first amendment to trust; (2) constructive trust; (3) financial elder abuse; (4) demand for accounting by attorney-in-kind as to Peter S. Fanucchi; (5) <004b004c001e0003000b00 00470003004900520055[ a trust...

Excerpt: ...effort to provide responses, plaintiffs are entitled to code-compliant responses. Absent such compliance, it is unclear whether there are any outstanding documents yet to be produced and if so why. The defendants appear to attempt address this issue by filing declarations in opposition to the motion stating that there are no more documents to produce. Accepting this as sufficient compliance would potentially leave plaintiffs in the position of la...

Excerpt: ...ental examinations in the past. She was found to lack capacity as recently as 2017 by Dr. Christine Naber. Ms. Norman then chose to be examined by Dr. John Podboy in early February 2019. Dr. Podboy opined that Ms. Norman is “quite capable of managing her own affairs.” (Sinigiani Decl., Ex. K, p. 2.) However, the number of IMEs is not limited as long as good cause is shown. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.) Moreover...

Excerpt: ...ong with Gregory Sfarzo dba Guitar String Manufacturing. Sfarzo's answer identifies the LLC and Sfarzo as “in pro per” in the caption and alleges: “Comes now the defendant GREG SFARZO sued herein under the fictitious name of GREG SFARZO dba GUITAR STRING MANUFACTURING, and SFARZO STRING COMPANY, LLC, and sued individually, (collectively referred to herein as DEFENDANTS) and, in answer to plaintiffs complaint, admits, denies, and alleges as ...

Excerpt: ...g related in part to hospital staffing levels. She also alleges workplace health and safety violations under California's OSHA laws through the enforcement mechanism of the Private Attorneys General Act in the Labor Code. Brooke recently dismissed her three causes of action for misrepresentation. Defendants contend Brooke was terminated because her job performance at Aurora was inadequate. Defendants further assert that when they terminated Brook...

Excerpt: ...prevailing” party is the party who recovered greater relief in the action on the contract. Here, plaintiff recovered greater relief and achieved his litigation objectives by reducing the May 2016 promissory note amount, cancelling the April 2016 promissory note, expunging the short form deed of trust and assignment of rents recorded against the Spring Street property and expunging the notice of default recorded against the County Manor property...

Excerpt: ...prevailing” party is the party who recovered greater relief in the action on the contract. Here, plaintiff recovered greater relief and achieved his litigation objectives by reducing the May 2016 promissory note amount, cancelling the April 2016 promissory note, expunging the short form deed of trust and assignment of rents recorded against the Spring Street property and expunging the notice of default recorded against the County Manor property...

Excerpt: ...ed, or explanation of how section 340.6 applies in fact to each cause of action. Based on the apparent gravamen of the claims, the causes of action for conversion, fraud, and breach of fiduciary duty are based on conduct other than mere professional negligence, i.e., legal malpractice, but instead on the allegation that Defendants breached fiduciary duties to Plaintiff by obtaining and keeping funds belonging to Plaintiff. The court cannot conclu...

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: ...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: ... 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: ... 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: ... an imposition of punitive damages. The underlying Complaint alleges that Plaintiff purchased certain real property with a mobile home attached. The Complaint alleges that the mobile home is uninhabitable due to mold and mildew. The Complaint alleges a failure to disclose the true condition of the property on the part of Plaintiff's agent, the seller, and the seller's agents. The Defendants are alleged to have acted as the seller's agents in the ...

Excerpt: ...brother, defendant Bowen. Bowen filed a cross-complaint claiming he is entitled to more than half the sale and insurance proceeds based on his claims for reimbursement of expenses and for alleged offsets. Bowen seeks to compel further responses to form interrogatories nos. 2.12, 2.13, 6.1-6.7, 7.1-7.3, 9.1, 9.2, 10.2, 12.1-12.7, 13.1, 13.2, 14.1, 14.2 and 16.1. Weeks' responses to these form interrogatories were primarily objections based on Bowe...

Excerpt: ...e parties' respective insurable interests in the property. The home owners insurance proceeds have been deposited with the court and are awaiting court determination of how much shall be distributed to plaintiff and defendant. The real property has already been deemed by the family court to be defendant's separate property. Therefore, plaintiff has no ownership interest in the real property. Consequently, the SAC does not state a real property cl...

Excerpt: ...and granted on October 17, 2018. According to this court's order, Plaintiff's responses were to be served by December 19, 2018. Plaintiff was also ordered to pay $810 in sanctions. Defendant asserts that no responses have been forthcoming, nor has Plaintiff paid the $810 in sanctions. Defendant has now filed this motion seeking another order commanding responses and deeming the requests for admission admitted. Defendant also seeks terminating san...

Excerpt: ...nal distress alleged arising from the acts of the Defendants. On October 3, 2018, the subject subpoenas were served on Hiner by Defendant Wright Realty. Defendant avers that Hiner did not serve any written objections to these subpoenas, nor did he return any documents sought in the subpoena. The Defendant did receive a communication from the subpoena service indicating that Hiner “required a HIPAA-compliant authorization.” This motion followe...

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: ... 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: ...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: ...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: ... 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: ... 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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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....

Excerpt: ...scovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.) “The inquiry ‘must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiati...

Excerpt: ... rights and safety of others. “The trial court has discretion to allow amendments to the pleadings ‘in the furtherance of justice.' (Code Civ.Proc., § 473.) This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) “[A]bsent a showing of prejudice to the adverse party, ...

Excerpt: ...lude “[t]he title of the plaintiff as to which a determination under this chapter is sought and the basis of the title…” Based on the stipulated court order entered in the matter of the Errol E. Cropsey Revocable Trust in Sonoma County case number SPR-78788, the real property at issue in this action, 11871 Bodega Highway, Sebastopol, California, Assessor's Parcel Number 073-090-008, was deemed an asset of the Errol E. Cropsey Revocable Trus...

Excerpt: ...efault and default judgment. Plaintiff's request for judicial notice of the various documents filed in support of its request for entry of default judgment is granted as to the fact the documents were filed but not for the truth of the matters asserted therein. First, Latora argues he was not properly served with the summons and complaint in this action, therefore, the default and default judgment are void pursuant to CCP §473(d). As summarized ...

Excerpt: ...son, in his capacity as holder of durable power of attorney for healthcare and financial power of attorney. It contains an agreement to submit to non-binding mediation before taking any legal action, as well as a binding arbitration provision. Defendants Oakmont Mariner Point LLC, Oakmont Management Group LLC and William P. Gallaher move to dismiss this action on the grounds that plaintiff failed to fulfil the condition precedent of mediation and...