Excerpt: ...q., also known as the “Right to Repair Act,” apply in this case, which was not “original construction intended to be sold as an individual dwelling unit.” (Civ. Code §896, emphasis added.) Additionally, Uponor has not cited sufficient authority to show that, even if the Right to Repair Act applies, Uponor, as a product manufacturer, would have a right to stay or dismiss the action, or quash service of summons for lack of personal jurisdi...

Excerpt: ...PP”); and (4) Defendant's motion to strike Plaintiff's PAGA claims. 1. Motion to Compel PMQ Testimony Plaintiff's motion to compel Signature to designate the Person(s) Most Knowledgeable to testify regarding the topics referenced below is DENIED. In this motion, Plaintiff moves to compel Signature to designate a Person Most Qualified (“PMQ”) witness(es) to testify regarding a number of topics relating to Signature's corporate history of hea...

Excerpt: ...showing that one or more elements of each of these causes of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c(o)-(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.) Further, when the Court liberally construes Terry' evidence and resolves all doubts in her favor, Terry has presented sufficient evidence to show there are disputed questions of material fact on a number ...

Excerpt: ...demurrer. (Cal. Rules of Court, rule 3.1320(c).) Here, Respondent filed a Notice of Demurrer and a “Demurrer” which appears to in fact be a memorandum of points and authorities. However, Respondent has not filed a separate document that clearly identifies the specific claims challenged and the grounds for the challenge. Accordingly, the demurrer is technically defective. Notwithstanding this technical defect, the Court has considered the meri...

Excerpt: ... Defendant's demurrer was not filed until September 23, 2020, i.e., over nine months after service. Furthermore, the demurrer fails on its merits because the complaint alleges sufficient facts to state all causes of action. This case arises from a loan and promissory note whereby Plaintiff agreed to lend $20,000 to Advance Auto Finance, LLC (“AAF”) in return for 10% per annum interest payment over 36 months. (Complaint at p.3 and Ex. A.) The ...

Excerpt: ...ection 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed on conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. §436.) “A motion to strike, like a demurre...

Excerpt: ...stipulation and proposed order. Code of Civil Procedure section 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed on conformity with the laws of this state, a court rule, or an order of the court.” (Code...

Excerpt: ...sical examination, the defendant must obtain leave of court. (Code Civ. Proc. §2032.310(a).) A motion to compel an additional physical examination must “specify the time, place, manner, conditions, scope and nature of the examination, as well as the identity and specialty, if any, of the person or persons who will perform the examination…” (Code Civ. Proc. §2032.310(b).) Additionally, the defendant must make a showing of “good cause” ...

Excerpt: ...t for monetary sanctions is DENIED. With respect to requests 139-146, 148 and 222, the Court notes that Defendant provided supplemental responses on October 9, 2020, after the motion was filed. Thus, the supplemental responses restart the clock for the parties to meet and confer and if necessary, for Plaintiff to file a motion to compel. (See, Code Civ. Proc. §2030.300(c) [deadline for filing motion to compel runs from date of service of respons...

Excerpt: ... for attorneys' fees and costs of $48,339.74. “A prevailing buyer in an action under the Song-Beverly Act ‘shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.'” (Morris v. Hyund...

Excerpt: ...laint ¶¶8, 11 and Ex. A.) The lease was eventually assigned to Plaintiff and Plaintiff now alleges that Defendants breached the lease, in part, by “failing to provide full possession absent interference of the Property in contravention of Plaintiff's rights under the Contract.” (Id. at ¶31.) In the complaint, Plaintiff asserts multiple causes of action, including the three above-referenced contract- based causes of action, against Rory; Da...

Excerpt: ...2011) 192 Cal.App.4th 1149, 1158–1159 [“a pleading made on information and belief is insufficient if it merely assert[s] the facts so alleged without alleging such information that lead[s] [the plaintiff] to believe that the allegations are true.”].) Proctor & Gamble's demurrer to Plaintiff's sixth cause of action for negligence is SUSTAINED, with leave to amend, on the grounds the cause of action is duplicative. (See, Palm Springs Villas I...

Excerpt: ...aration of fault, the relief is “mandatory” and the trial court has no discretion to deny a motion.]; see also, Abers v Rohrs (2013) 217 Cal.App.4th 1199, 1210; SJP Ltd. Partnership v City of Los Angeles (2006) 136 Cal.App.4th 511, 516–517.) Here, the Declaration from Erin B. Carlstrom is sufficient to establish that the defaults in this case were entered as a result of attorney error in calendaring the date for a response and therefore, re...

Excerpt: ...OVERRULED as to Petitioner's fourth cause of action for promissory estoppel. The demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND, as to the fifth cause of action for intentional interference with a contract. 1. Petitioner's First and Third Causes of Action Fail Because the Underlying “Family Agreement” is Unenforceable Under Former Probate Code Section 150. Petitioner's first cause of action is brought under Probate Code section 850 and is base...

Excerpt: ...case is set for a Case Management Conference on Thursday January 14, 2021 at 3:00 P.M. in Department 18. No appearances will be required at the Case Management Conference if the case has been transferred by that time. 1. Venue is Proper in Orange County. The Probate Code states that the proper county for commencement of a proceeding “[i]n the case of a living trust, is the county where the principal place of administration of the trust is locat...

Excerpt: ...g to file and serve a first amended cross-complaint. 1. Tenant Alleges Sufficient Facts to State a Cause of Action for Implied/Equitable Indemnity. In this case, Plaintiffs purchased the commercial property from sellers in February 2019 and Broker acted as the dual agent for the sale. (First Amended Complaint at ¶¶5, 8-9.) As of the date of the sale, Tenant was a commercial tenant who operated a body shop on the property. (Id. at ¶¶ 10, 13.) ...

Excerpt: ...The parties do not dispute that Plaintiffs are entitled to attorneys' fees under Civil Code section 1794(d), however, Defendant contests Plaintiffs' attorneys' hourly rates and the time they expended in this action. While the Court finds that some of the various hourly rates charged by Plaintiffs' fifteen attorneys from two different law firms are generally “reasonable,” some are far in excess of those of the local community. Regardless, the ...

Excerpt: ...he complaint on the same grounds as the demurrer is MOOT. The Court refers Plaintiff to Code of Civil Procedure section 372(a) which provides in part that “[w]hen a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding...

Excerpt: ...rt that Defendant “negligently failed to exercise the proper degree of knowledge and skill in examining, diagnosing, treating, and caring for Plaintiff with respect to his custodial and medical needs, as set forth in this complaint, as a proximate result of which Plaintiff sustained injury to his body, and in his health, strength, and activities, and sustained injury to his mental health and shock and injury to his nervous system, all of which ...

Excerpt: ...s to Plaintiff's causes of action, the motion is denied without leave to amend. The Code provides that a plaintiff is entitled to judgment on the pleadings if “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 constitute a defense to the complaint.” (Code Civ. Proc. §438(c)(1)(A).) “The grounds for a motion for judgment on the pleadings mu...

Excerpt: ...rt, which was not the trial court, has the ability to hear and determine the motion.” (See, Court's July 15, 2020 Minute Order.) The Court stated that it's “[v]iew is that the parties have the right under CCP section 635 to request the Presiding Judge, or his designee, enter judgment in conformity with the trial judge's Statement of Decision, and nothing more. However, as this issue was not addressed by the parties, the matter is continued to...

Excerpt: ... final ruling. 1. Abbott Fails to Allege Sufficient Facts to State her Fourth and Fifth Causes of Action for Fraud and Negligent Misrepresentation. The elements of a cause of action for fraud are (1) a misrepresentation, meaning false representation, concealment, or nondisclosure; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4t...

Excerpt: ... limitations under Government Code section 12960, Plaintiff has presented sufficient evidence to show disputed issues of fact with respect to her claim of equitable tolling of all causes of action. Based on this evidence, a reasonable trier of fact could find that Plaintiff has met the elements for equitable tolling and thus, her action would be timely. Therefore, the motion for summary judgment or summary adjudication is denied. “The statute o...

Excerpt: ...24- 25.) Plaintiffs explain that Defendants recently acquired a permit to convert a residential property to a cannabis cultivation facility and “[a]llowing such use would increase the amount of traffic on the road, change the type of traffic from passenger to commercial vehicles, and expand the hours that the road is in use.” (Id. at 4:9-11.) Plaintiffs spend the majority of their motion arguing the merits of their underlying claims to limit ...

Excerpt: ...ated in part that “the property subject to the Writ of Possession has a market value of approximately $10,000.00” and any bond should be “in an amount not to exceed $10,000.” (Original Reply at 2:4-5 and 5:18-19.) In its minute order, the Court stated as follows: The appropriate bond amount is addressed only for the first time in the reply, giving the defendants no opportunity to respond. This is particularly unfair as a substantial porti...

Excerpt: ...ntiff's briefs. Ford claims that the information in these documents is confidential and the documents were disclosed in violation of multiple stipulated protective orders entered between the parties in three other cases. Ford contends it has not produced these documents to Plaintiff in this litigation and Plaintiff could have only acquired them through other proceedings that are subject to a protective order. (Ford filed a third motion to exclude...

Excerpt: ...50 which she incurred to object to Keel's motion and $1,402.50 to bring this motion for sanctions. Keel has not filed an opposition to the motion. Darling's motion is GRANTED. Keel is ORDERED to pay $1,402.50 total in sanctions to Darling, which includes $676.50 related to Darling's objection to the initial motion and $726 in attorney's fees (3 hours at $165/hour and .6 hours at $385/hour). The Court finds this amount reasonable under the circums...

Excerpt: ...on a final draft. (Id. at Exs. A-E.) In this motion, Plaintiffs seek an order compelling Defendants to sign Plaintiff's most recent draft. (Id. at Ex. E.) Defendants have not filed an opposition to the motion. After reviewing Plaintiffs' brief and supporting documents, the Court rules as follows: Plaintiffs' Request for Judicial Notice of the “Sonoma County Superior Court Closure Due to COVID-19 Local Emergency Press Release, dated March 16, 20...

Excerpt: ...resort to sources of reasonably indisputable accuracy.” (Evid. Code §452(h).) Here, the parties' respective ownership interest in the manufactured home is disputed and is not capable of “immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Thus, judicial notice is not proper. (See, Herrera v. Deutsche Bank Nat'l Tr. Co., 196 Cal.App.4th 1366, 1374 [trial court could not take judicial notice of dis...

Excerpt: ...ants James Mackenzie, Michael Hines, and Paul Harper (collectively “Defendants” or “individual Defendants”) demurrer to the second cause of action for fraud/misrepresentation; seventh cause of action for intentional infliction of emotional distress (IIED); eighth cause of action for conspiracy; ninth cause of action for invasion of privacy; and tenth cause of action for defamation on the grounds Plaintiff fails to allege sufficient facts ...

Excerpt: ... in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. The Motion for Relief is GRANTED. Defendant's counsel has sufficiently established the failure to properly number the responses one through seven was a result of inadvertence. Plaintiff Richard Abel moves for an order compelling Defendant Sunderland/McCutchan to serve full and complete code-compliant verified responses, without objections, to Plaintiff'...

Excerpt: ...tiffs consider the response to request No.51 defective. Plaintiffs move the court to compel Defendant Abdallah to provide further responses, a privilege log, and documents in response to request number 51 in Plaintiffs' request for production. When a propounding party is dissatisfied with responses to interrogatories or production requests, that party may move to compel further responses. CCP sections 2030.300, 2031.310. The moving party must mak...

Excerpt: ...ntiff and the Aggrieved Employees to take their meal periods and rest periods in violation of California Law. Defendants also failed to pay Plaintiff and the Aggrieved Employees all earned and unused and accrued vacation time at their final rate of pay at the time of their termination.” (Complaint at ¶13.) Plaintiff also alleges that “[t]hroughout the time period involved in this case, Defendants have implemented policies and practices which...

Excerpt: ...erty. (Id. at ¶11.) However, on June 25, 2016, McChesney told Plaintiffs they should contact Janice Cader-Thompson (“Defendant”) because Defendant was McChesney's “advisor.” (Id. at 12.) Plaintiffs spoke with Defendant who explained that she was concerned about certain terms in the sale agreement and she would set up a meeting with McChesney to “try to renegotiate [a] reverse mortgage with the mortgage company…before escrow was close...

Excerpt: ... exist; and (2) if such agreements are found to exist, the court will GRANT the motions and compel arbitration. The Court also finds it is appropriate to order limited mutual discovery on the issue of the execution of the arbitration agreements in anticipation of the evidentiary hearing. This matter is stayed in all other regards and calendared on the Case Management Calendar on September 22, 2020 at 3:00 p.m. for setting of the evidentiary heari...

Excerpt: ...s “court records” pursuant to Evidence Code section 452(d) is denied. Defendants fail to provide a basis for finding that the transcripts fall under the category of court records. And, even if the Court were to take judicial notice of reporter's transcripts, it would not be of the truth of “facts” therein so the relevance of the transcripts is then questionable. (See e.g., Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736...

Excerpt: ...ed a verdict in favor of Badger finding that his sister, defendant Jean Terribilini, had committed a nuisance. Plaintiff moves for reimbursement of attorney fees and costs he incurred in proving that he has an implied easement and an irrevocable license to continue drawing water from a source on his sister's parcel to supply his own, adjoining property. Specifically, he argues that Terribilini should have admitted Requests for Admissions (“RFAs...

Excerpt: ... defendant file an ex parte application to exceed the page limit. This application was opposed. The Court, Judge Wick, denied defendant's application. Rather than file a corrected points and authorities, defendant filed another ex parte application to exceed the page limit on April 15, 2020, which was processed and entered into the court's system on April 30, 2020. The application was again opposed. In light of the pandemic related court closure,...

Excerpt: ... former employees of Black Bear Diner in Rohnert Park. Plaintiffs Amanda Wolf, Claudia Cairo, Monique Cortes-Arcos, and Lena Sheridan allege claims based on sexual assault, sexual discrimination and pregnancy discrimination. Jose Bustillos' claims are based on his status as a whistleblower who reported to BBDI the alleged abusive treatment of women at the diner as well as alleged health and safety violations. Plaintiffs' Evidentiary Objections Pl...

Excerpt: ...r costs and attorney fees in favor of defendant after her demurrer was sustained without leave to amend. The total amount of the judgment is $33,012. Plaintiff has filed an appeal and defendant now urges the court to exercise its discretion under CCP §917.9(a)(3) and order plaintiff to post an undertaking to stay enforcement of the judgment. After this action was filed, Power discovered that in 2011, the California State Bar had issued a Notice ...

Excerpt: ... to return to public safety officer duties and had limited him to office work. This was significant to plaintiff's ability to prove many of his claims since it meant he was unable to do any field work (an essential function of his police sergeant position), even with reasonable accommodation. In 2019, plaintiff denied the following requests for admission: No. 1: “Your medical restrictions precluded you from performing the essential functions of...

Excerpt: ...e court finds defendant has failed to establish that responding pursuant to CCP §2030.230 is sufficient under the circumstances. CCP § 2030.230 provides: If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same fo...

Excerpt: ...2) conversion; (3) breach of contract; (4) breach of implied covenant of good faith and fair dealing; (5) breach of duty of loyalty; (6) tortious interference with economic relations; (7) fraud; (8) trade libel; and (9) unfair competition. As alleged in the complaint, AMLG is doing business in Sonoma County, and Henderson was at all relevant times residing in Monterey County. (Complaint, ¶¶3&4.) Henderson moves to change venue from Sonoma Count...

Excerpt: ...e. Defendants move for summary adjudication of the second cause of action, which seeks to quiet title based on plaintiffs' alleged adverse possession of a portion of the real property that has been improved over the years. “The elements of adverse possession are as follows: ‘(1) Possession must be by actual occupation under such circumstances as to constitute reasonable notice to the owner. (2) It must be hostile to the owner's title. (3) The...

Excerpt: ...of judgment. Southern Response's motion is fully briefed and the court finds it appropriate to advance the motion to be heard concurrently with plaintiffs' motion for final approval. Accordingly, the court provides a tentative ruling on both motions below. Defendant Southern Response's Motion for Leave to File Cross-Complaint Southern Response does not oppose, in principle, the class action settlement between plaintiffs and defendant Interstate R...

Excerpt: ...nfidential as they must be reviewed in camera and the contents of the certificates can only be revealed to a prevailing defendant at the conclusion of litigation as specified in subdivision (p) of CCP §340.1. California Rule of Court 2.585 governs confidential in camera reviews and states: (a) Minutes of proceedings If a confidential in-camera proceeding is held in which a party is excluded from being represented, the clerk must include in the m...

Excerpt: ...leges she suffered injuries because the Feeneys failed to “ensure guests left their premises safely.” Specifically, per the complaint, the Feeneys failed to prevent plaintiff from being injured in a fight in their driveway and to organize transportation for plaintiff from their home after the party. Plaintiff also alleges the Feeneys served alcohol and drugs to their guests. The Feeneys move for summary judgment on the ground that plaintiff c...

Excerpt: ...ant Superintendent, the school district acknowledges receiving the summons and complaint but believed plaintiff's appeal of its decision was “closed” and that the matter had been concluded. Therefore, the complaint was simply filed in the file related to plaintiff's case and was not forwarded to the district's counsel or claims administrator. (See Mizera Decl., ¶¶ 14-16.) Accordingly, defendant's motion is granted and it shall file a respon...

Excerpt: ...e absence of any request for relief under those grounds…[W]hen faced with a motion for relief under section 473, the trial court does not have to consider the availability of relief under the mandatory provision unless such relief is requested in an appropriate manner.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126.) “A basic principle of motion practice is that the moving party must specify for the court and the opposing party the g...

Excerpt: ...e function of a cross- complaint in the (now) consolidated civil action. Indeed, Objector's opposition seems to treat this single document, filed before consolidation of these actions, as both an Objection and cross-complaint. The First Amended Will Contest also seeks to find Petitioner Launay “guilty” of elder abuse, or undue influence, a function only retained by a criminal court. It also seeks some unspecified affirmative relief for violat...