Excerpt: ...to prevail Plaintiff must show not only that it paid the Loss but that it had a legal duty to do so. The court in Fireman's Fund did, in fact, hold that where an insurer paid a claim as a “volunteer” without any obligation to do so, it has no right to seek subrogation under equitable principles. It also noted that there was no evidence of a contractual basis for recovery since no evidence showed an appropriate contractual relationship on whic...

Excerpt: ... because of her intoxication lost control of her vehicle, causing Plaintiffs' damages. The pleadings are sufficient to support the prayer for punitive/exemplary damages. Plaintiffs shall draft an order consistent with this ruling. ...

Excerpt: ... written responses to Plaintiff's meet and confer efforts came after the deadline to file a motion to compel further responses. RPDs 26-27 Defendant contends that these RPDs had a supplemental response, but that is not reflected in this separate statement. The RPD itself is not clear what the “Ministri documents” include. Plaintiff contends that Defendant “undoubtedly possesses additional documents responsive to the above-listed Requests be...

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: ... also be specific, not general, to allege fraud against the corporation. Second Cause of Action This cause of action fails to comply with the statute of frauds and allege a signed writing regarding the alleged review of modification of loan terms and postponement of foreclosure sale. No associated damages are pled. Third Cause of Action Defendant argues that Plaintiff has failed to allege sufficient facts to support the violation of the Homeowner...

Excerpt: ...r attorneys' fees pursuant to CCP section 425.16(c)(1) as the prevailing party on the anti-SLAPP motion, and the Court awarded Defendants $5,319.82 in attorneys' fees and costs. The Court also denied Plaintiff's motion to tax costs. Plaintiffs appealed the order granting Defendants' motion for attorneys' fees and costs and the order denying their motion to tax costs. MAC filed a request to dismiss its appeal and the order of dismissal was entered...

Excerpt: ...fenses (the “Answer”). This matter is on calendar for Plaintiff's motion to strike the Answer pursuant to Code of Civil Procedure (“CCP”) sections 435-437 on the basis that it is unverified and on the basis that the affirmative defenses are all irrelevant and therefore constitute immaterial allegations. Plaintiff's Motion is GRANTED with leave to amend due to the lack of verification but it otherwise DENIED. Defendant is required to file ...

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: ...f Automatic Stay of “all trial court proceedings on the challenged claims”) divests the Court of subject matter jurisdiction to rule on TWC's current motion for summary adjudication, in whole or in part. (See,Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193- 196 [the perfecting of an appeal divests the trial court of subject matter jurisdiction over any matter “embraced in” or “affected by” the appeal during the pend...

Excerpt: ...004c00510003005700 00480057004c00520051[ of the Superior Court. Here Plaintiff's original claim of $22,000 was awarded plus $5,412.60 in interest. Additional claims have also been asserted which are contested by Defendant. Exercising its discretion, the Court allows discovery. Plaintiff's Motion to Compel Plaintiff filed a motion to compel compliance with a notice of deposition and corresponding request for documents; responses to requests for pr...

Excerpt: ... the declaration of Defendants' counsel acknowledges that “[o]n January 10, 2019, Plaintiff's counsel (Rick O'Hare) and I met and conferred by telephone to attempt to resolve issues, including the failure to produce documents, Plaintiff's objections to Requests, and amendment to Responses.” (See, Mervis Dec. at ¶12.) Accordingly, Defendants' “meet and confer” argument lacks merit. The requested documents clearly contain confidential fina...

Excerpt: ...“CCP”) section 2031.310 and for monetary sanctions. The Motion is GRANTED. Defendant served a CCP section 2031.030 Request for Vehicle Inspection (the “Request”) on April 23, 2018, noticing the inspection for June 11, 2018 in Healdsburg and indicating what Defendant intended to do, including a “test drive.” (Nassirian Decl. ¶ 3 & Ex. A.) Plaintiff served an objection to the Request via overnight mail on June 6, 2018, which objects to...

Excerpt: ...rce the right to the fees. (Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4 th 1499, 1505.) Thus, as Lindelli explained, an attorney who has an interest in obtaining attorney's fees pursuant to CCP section 1021.5 satisfies the factors for permissive intervention. One may also obtain a sufficient interest in an action, and a timely basis therefore, when a party to the action fails to prosecute or defend it. (Continental Vinyl Products Corp. v...

Excerpt: ... (1998) 18 Cal.4 th 739, 748, fn.6) In its opinion on the most recent consolidated appeal in this case, the Court of Appeal stated in part that “[t]he developer defendants shall recover their costs on appeal.” (See, 2018 WL 2252622 at *12, citing Cal. Rules of Court, rule 8.278(a)(1).) California Rule of Court 8.278 provides “[e]xcept as provided, the party prevailing in the Court of Appeal in a civil case…is entitled to costs on appeal.�...

Excerpt: ...who was handling the matter did not file a CMC and quit a day before the hearing, he was never made aware that his associate had not scheduled the court call, and that he missed the hearing because it was not scheduled on his calendar. (Shemtoub Decl. ¶¶ 4-7.) He contends that the failure to appear and to file a CMC statement was due to “mistake, inadvertence, mistake [sic] or excusable neglect” within the meaning of CCP section 473(b) and ...

Excerpt: ...ocedure section 438(c). It is not apparent as a matter of law that Cross-Defendants/Plaintiffs have not breached the alleged “Governing Documents” or “Declaration” or “Rules and Regulations” by continuing to take the position that they are paying “under protest” given the allegations and terms of the documents. It is also not apparent as a matter of law that these documents do not forbid vacation rentals as alleged. The mere fact ...

Excerpt: ...de from the specific Plaintiffs' damages and they both involve the same question of liability. Allowing both cases to go forward separately would create a risk of inconsistent rulings and waste of time. Plaintiffs have some potentially valid concerns about the different complexity of issues and length of trials but these are uncertain and minimal compared to the factors supporting consolidation. Moreover, both are set to start trial soon. The pre...

Excerpt: ...as Secretary of State of the State of California (“Respondent”), contended in his October 29, 2018 Opposition to Petitioner's Petition to Disqualify Sen. Dianne Feinstein that the Petition was filed in the incorrect venue under Elections Code (“EC”) section 13314(b). That statute provides in relevant part that venue for a proceeding under EC section 13314(a)(1), which allows an elector to seek a writ of mandate in connection with certain ...

Excerpt: ...y 13, 2019 Minute Order.) According to the Court's record, Plaintiff has not filed a Second Amended Complaint as of the date of this tentative ruling. Therefore, the current Special Motion to Strike is MOOT. (See, Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 878-879 [If plaintiff voluntarily dismisses the action after defendant files an anti-SLAPP motion, the court loses jurisdiction to rule on the motion.].) Here, because P...

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: ... 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: ...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: ...�) Motion for Summary Judgment, or in the Alternative, Summary Adjudication. The Notice of Hearing solicited briefing on this issue, stating that parties wishing to be heard on the issue of “the propriety of including prejudgment interest in the judgment and, if proper, the amount of prejudgment interest” shall file their papers on or before March 4, 2019. No briefing was received. However, the Court is in receipt of, and has reviewed and con...

Excerpt: ...nd 7) injunctive relief. This matter is on calendar for a motion by Defendant pursuant to Code of Civil Procedure (“CCP”) section 428.50 for leave to file a cross-complaint against Plaintiff for: 1) breach of equitable servitudes; 2) trespass to land; 3) injunction; and 4) declaratory relief (the “Proposed Cross-Complaint”). The Zimmerman Declaration filed in support of the Motion explains that the failure to timely file a cross-complaint...

Excerpt: ...n by defendant Chanate Property Owners Association (“Moving Defendant”) for leave to file an amended answer to the Complaint to include the affirmative defense of “recreational immunity” pursuant to Code of Civil Procedure (“CCP”) sections 473(a) and 576(a). The unopposed Motion is GRANTED. This matter is also on calendar for Moving Defendant's Motion for Summary Judgment on the grounds that Moving Defendant owed no duty to Plaintiff ...

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: ...�) required that the OST “be served on all counsel by 3 pm on 3-1-19.” A proof of service filed on March 7 shows that Plaintiff timely served the OST. The unopposed Motion is GRANTED, except that sanctions are not awardable. Defendant is required to appear at a deposition at Plaintiff's counsel's offices at 10:00 am on Wednesday, March 20, except if March 20 is not convenient for Plaintiff, on another mutually convenient date on or before Mar...

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: ...est (hereinafter, “RPI”) Lytton Rancheria of California (hereinafter, “the Tribe”) to comply, or not comply, with the Forest Practices Act (hereinafter, “FPA”), Forest Practice Rules (hereinafter, “FPR”), California Environmental Quality Act (hereinafter, “CEQA”), the Porter-Cologne Water Quality Act (hereinafter, “WQA”), or the Fish & Game Code regarding Non-Industrial Timber Management Plan (hereinafter, “NTMP”), spe...

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: ...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: ...der abuse. (See, Rambo v. Blain (1968) 263 Cal.App.2d 158, 163 [“a promise made with intent to deceive or induce a person to enter into a contract, without any intention of performing it, is actual fraud”], citing, Civ. Code §1572(4); see also, Civ. Code §1710.) “[B]ecause the real intent of the parties and the facts of a fraudulent transaction are peculiarly in the knowledge of those sought to be charged with fraud, proof indicative of f...

Excerpt: ...will be necessary based on any new responses resulting from the motion on the requests for admissions. Moreover, while Defendant generally responded to each part of 17.1, many responses are vague “not applicable” or simple reiterations of the groundless objections. Sanctions awarded to the moving party for time actually spent, with more to be awarded on proof of additional reasonable time and expense. The amount awarded based on time spent so...

Excerpt: ...et forth clearly and distinctly with no apparent ambiguity. The provision thus appears to cover all of the claims between these two parties and, because of the terms of the provision, the statement from Brody in Exhibit 6 that the terms were the result of negotiation, and the nature of Brody's employment and position, there is no indication of procedural or substantive unconscionability. The moving party also demonstrates that the parties have al...

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: ...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: ...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: ...igence; 2) breach of contract; 3) breach of implied warranties; 4) – 5) breach of express warranty; and 6) – 7) claim on contractor's license bond (against the sureties). The Complaint alleges that Plaintiffs entered into an Owners Contract Agreement with Defendant Ken Medrano, individually and dba Kendell Brook Builders (“Defendant Medrano”), and that as part of the work to be completed, Defendant Medrano retained Jack Shapiro and Shapir...

Excerpt: ...ts a motion directed to a prior complaint. [Citation.] Thus, once an amended complaint is filed, it is error to grant <00570044004c0051004800 005500480059004c0052[us complaint. [Citation.] As our colleagues in Division Two have explained, “a court granting plaintiff leave to amend a cause of action should not at the same time attempt to summarily adjudicate material issues which underlie that same cause of action. After a cause of action is ame...

Excerpt: ...e any documents; and failed to provide any dates for the commencement of the <000f0003004c0051000300 005c000f00030033004f[aintiff acknowledges that since the filing of the motion, the parties have agreed to a deposition date of February 25, 2019, which is only two days before this scheduled hearing. Thus, Plaintiff requests that the hearing remain on calendar and despite the agreement on a deposition date, Plaintiff continues to request an order ...

Excerpt: ...preme Court of the State of New York, County of New York entitled Brembo S.p.A. v. T.A.W. Performance Index No. 654931/2017 (the New York Case) which it argues involves the same Distribution Agreement as in the instant case. For the reasons explained below, the court finds that Brembo is not subject to the jurisdiction of the court, and therefore the service of summons is properly quashed. Quash Summons Based on a Lack of Jurisdiction Amended Com...

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: ...s prosecution claim. Defendant contends that Plaintiffs have failed to meet that burden and therefore, the motion to strike should be granted and the complaint should be stricken. Plaintiffs oppose the motion on several grounds. First, Plaintiffs argue that the motion is procedurally defective under Code of Civil Procedure section 1005 and California Rules of Court, rule 3.1110 because Defendant's moving papers did not include the time and date o...

Excerpt: ...d] over twelve years before the request to renew of the judgment has been filed.” Plaintiffs refer to their Exhibit A to support this argument, which is a December 9, 2008 “Modified Judgment” entered in Defendant's favor following a remittitur from the Court of Appeal, which affirmed the trial court's prior award of expert fees and litigation costs but reversed the trial court's award of attorneys' fees to Defendant. Alternatively, Plaintif...

Excerpt: ...ith the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office. The notice of hearing must be given at the time prescribed in Code of Civil Procedure section 1005 unless the court has prescribed...

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: ...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: ... 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...