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