Excerpt: ...ecifically, Defendant's purported evidence consists, in part, of inadmissible hearsay in the form of unauthenticated credit report documents. Defendant has failed to demonstrate how such documents might fall within a recognized hearsay exception. Moreover, even if the Court were to consider the proffered reports, the information contained therein does not definitively establish the fact asserted by Defendant, i.e. that Plaintiffs obtained the cre...

Excerpt: ... by Ms. Weese pursuant to the power of attorney executed by Ms. Kraus in 2015, the agreement does not demonstrate unanimous action by both of Ms. Kraus' designated representatives (Prob. Code §4202(b)) and Defendant submits no evidence that unanimous action was not required. (Prob. Code §4202(d).) The Court further notes Defendant's acknowledgement that, in any case, the alleged arbitration agreement does not apply to Plaintiffs' wrongful death...

Excerpt: ... review of the papers and supporting evidence submitted in conjunction with both petitions, the Court finds that no statutory grounds exist to vacate the arbitration award issued on 10-8-19. (Code Civ. Proc. §1286.2.) While the Court recognizes that the determination of the arbitrator operates to deprive Plaintiff of the ability to pursue his statutory employment claims on the merits, the Court has reviewed the arbitrator's decision and finds it...

Excerpt: ...ted by substantial evidence. Plaintiffs correctly proffer that whether the design of the accident intersection was dangerous is beyond the common lay understanding under Evidence Code §801(a) and therefore properly a matter for expert testimony. At trial, Plaintiffs' expert, Dale Dunlap, rendered his opinion that the intersection in dispute was in a dangerous condition at the time of the accident. Mr. Dunlap is a Traffic Engineer with over thirt...

Excerpt: ...tion designed to protect the public, and the State remains the real party in interest. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4 th 348, 381.) Therefore, a pre-dispute agreement to such claims to arbitration cannot be enforced without evidence of the State's consent to such terms. (Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5 th 602 ...

Excerpt: ...0, 685.080.) Therefore, as a foundational matter, the scope of the motion is impermissibly broad to the extent it seeks recovery of fees and costs incurred prior to 11-17- 17. While Defendant does not dispute the recoverability of reasonable fees and costs in connection with Plaintiffs' post- stipulation enforcement efforts, Plaintiffs have not provided sufficient information for the Court to calculate the lodestar figure, which is fundamental to...

Excerpt: ...can Arbitration Association, … or any other organization to conduct the arbitration subject to our approval.” Plaintiff contends that this sentence makes AAA one of her choices, and that 2WIN's approval is required only if she chooses an entity other than AAA. Defendant contends that the sentence gives it absolute veto power over any choice Plaintiff might make. The Court concludes that the sentence is ambiguous, and therefore should be const...

Excerpt: ...s Request for Judicial Notice. Defendants' Demurrers No. 1 and No. 2 are OVERRULED. Defendants' Demurrer No. 3 is SUSTAINED, with leave to amend, for failure to state facts sufficient to constitute a cause of action. However, it appears Plaintiff can amend this cause of action to cite to the correct Labor Code Section – which does provide her with a private right of action. (Labor Code Section 233.) Defendants' Demurrer No. 4 is SUSTAINED, with...

Excerpt: ...ing the First Cause of Action for Battery and the Fifth Cause of Action for Public Nuisance. (Code Civ. Proc. §430.10€.) With regard to the battery claim, the Court finds the allegations insufficient to support the element of intent in this context. With regard to the claim for public nuisance, the Court finds the allegations insufficient to establish the “public” nature of the claim. Plaintiff is granted 20 days leave to amend in this reg...

Excerpt: ...preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed settlement of...

Excerpt: ...anting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed settle...

Excerpt: ...at are not the proper subject of court ordered fees. Additionally, the Court finds that there are some excessive amounts billed. Before setting a long cause hearing on this subject, the Court orders Plaintiff's counsel to do the following: 1. Review and consider the amounts billed; 2. Prepare a new bill for the Court's consideration and this bill shall be divided so that the tasks of each biller are listed separately, so the court may consider th...

Excerpt: ...ing of the Court is as follows: Pursuant to the Court's Order of September 17, 2019, the Court has read and considered the supplemental briefing and affidavits submitted in response to the Court's ruling. In light of the concerns and objections raised by the Public Defender's office as to production of the records concerning Defendant Brandon Patrick Whitton, who is also a defendant in a pending criminal prosecution in this forum, and in light of...

Excerpt: ...ces, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5 th 69, 92; Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 717; Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 860.) Therefore, leave to amend is GRANTED as to Boer & Sons, Inc. However, there is no tolling or “relation back” to save cross-complaints against third parties brought into the action by the defendant. (Boyer v. Jensen (2005) 129 Cal.App.4 th 62, 70; Sidney v. Sup...

Excerpt: ...s admissible. (Code Civ. Proc. §2015.5; Cal. Rules of Ct., rule 3.1306.) Moreover, the evidence he purports to offer in support of the motion suffers from the same defects and constitutes inadmissible hearsay. In addition, there is no indication that Plaintiff attempted to meet and confer prior to filing the motion, as is required by Code Civ. Proc. §2025.410. Plaintiff is reminded that a pro per litigant is held to the same rules of procedure ...

Excerpt: ...ing of the Court is as follows: Pursuant to the Court's Order of September 17, 2019, the Court has read and considered the supplemental briefing and affidavits submitted in response to the Court's ruling. In light of the concerns and objections raised by the Public Defender's office as to production of the records concerning Defendant Brandon Patrick Whitton, who is also a defendant in a pending criminal prosecution in this forum, and in light of...

Excerpt: ...ces, Inc. v. TAT Capital Partners, Ltd. (2016) 5 Cal.App.5 th 69, 92; Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 717; Trindade v. Superior Court (1973) 29 Cal.App.3d 857, 860.) Therefore, leave to amend is GRANTED as to Boer & Sons, Inc. However, there is no tolling or “relation back” to save cross-complaints against third parties brought into the action by the defendant. (Boyer v. Jensen (2005) 129 Cal.App.4 th 62, 70; Sidney v. Sup...

Excerpt: ...he licensing requirements, therefore allowing his action to proceed. (Bus. & Prof. Code §7031(e).) Specifically, the Court finds that, at a minimum, Plaintiff has demonstrated material issues of fact with regard to whether his conduct with regard to his license in 2018 was reasonable, given the totality of the alleged circumstances surrounding the interaction between the parties. (See, e.g., Plaintiff's Additional Facts 57-62, 71-75.) The partie...

Excerpt: ...s order granting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the propo...

Excerpt: ...Schmidt possesses the “special knowledge, skill, experience, training, or education sufficient to qualify [her] as an expert” with regard to the issues presented herein. (Evid. Code, § 720(a).) As noted by the Court previously, “Whether [Dr. Schmidt's] knowledge in these areas would be sufficient to convince a trier of fact is irrelevant at this stage of the proceedings.” (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970.) Therefo...

Excerpt: ...de Civ. Proc. §§2025.450(a).) Therefore, Plaintiff shall appear on November 1, 2019 pursuant to the current notice of deposition served by the defense. The Court also finds that Defendant is entitled to an award of monetary sanctions in the amount of $1,633.40 in connection with the above-described failures to appear, necessitating this motion. While the Court recognizes that Plaintiff's counsel describes extenuating circumstances underlying hi...

Excerpt: ...ege claims that are not available against individual supervisory employees. (Reno v. Baird (1998) 18 Cal.4 th 640, 647.) As a foundational matter, the viability of the Sixth Cause of Action for Intentional Infliction of Emotional Distress in this context rests on Plaintiff's ability to sufficiently plead underlying FEHA claims against the individual defendants. (See, e.g. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4 th 243, 288.) As Plaint...

Excerpt: ... therein. The Court has reviewed the entire Arbitration Agreement and concludes that it is enforceable. With regard to waiver, the Court notes there is no evidence presented by the Plaintiff that the Defendants "stretched out the litigation process, gained information about [the] plaintiff's case they could not have learned in an arbitration, or waited until the eve of trial to move to compel arbitration." See e.g. Khalatian v. Prime Time Shuttle...

Excerpt: ...e causes of action against Defendant. Plaintiff is reminded that it is her burden to demonstrate a “reasonable probability” that she can cure the defects in her Complaint via amendment. See Schnall v. Hertz Corp, (2000) 78 Cal.App.4th 1144, 1151. “Leave to amend should not be granted “where, in all probability, amendment would be futile.”” See Vaillette v. Fireman's Fund Ins. Co., (1993) 18 Cal.App.4th 680, 685. “It is the plaintiff...

Excerpt: ...19-000641 – In re Bosio Revocable Trust Dated September 15, 1993 (Filed 6/14/19); and UD-19-000830 – Richard Bosio v Gina Bosio, et al. (Filed 6/28/19). Upon review, the Court intends to GRANT the motion to consolidate these three matters as it appears that consolidation would avoid repetitive trails of the same “common issues” and thus avoid “unnecessary costs and delays” to the Court and to the parties; as well as avoiding the subst...

Excerpt: ... compliance with the law and as required by the Court's order granting preliminary approval. Having considered the unopposed motion for final approval and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under California law. (Civil Code §1781; Code Civ. Proc. §382; Cal. Rules of Ct., rule 3.769.) Good cause...

Excerpt: ...ualifies as a written contract involving interstate commerce. Lastly, Plaintiff' has failed to demonstrate that the agreement is unenforceable due to unconscionability. While the mandatory nature of the agreement demonstrates some measure of procedural unconscionability, the Court finds no other indicia of procedural or substantive unconscionability in connection with the terms of the agreement. Therefore, the matter is subject to arbitration as ...

Excerpt: ...ting there is a likelihood she will prevail on her request for a civil harassment restraining order. Petitioner presents evidence which, if credited, demonstrates that she was the victim of a “knowing and willful course of conduct” that “seriously alarm[ed], annoy[ed], or harasse[d]” her and which “serve[d] no legitimate purpose.” (Code of Civil Procedure § 526.7, subd. (b).) ...

Excerpt: ...uestions of law and fact predominate over questions affecting individual class members; 5) the class representative has claims typical of the class and subclass members; and 6) the class representative and class counsel will fairly and adequately represent the class and subclasses. It appears adjudication of this matter as a class action is superior to other methods of adjudication and the action is manageable as a class action. Plaintiff Zachary...

Excerpt: .... The amount of fees awarded does not include a multiplier of 1.5, as requested by Gabriel Ashlock. The Court does not believe a multiplier is justified at this stage of the proceedings, as the uniqueness and complexity of the issues confronted during the pre-trial and trial stages no longer existed during the appellate proceedings. b) Fourth Petition for Attorneys' Fees and Costs: At this time the Court DENIES the petition without prejudice. Ini...

Excerpt: ...c)), and it appears to the Court that Plaintiff is unable to add any factual allegations to overcome the demurrer in this regard. The Demurrer to Plaintiffs' cause of action for general/gross negligence is SUSTAINED without leave to amend. The facts alleged appear to describe a claim for professional negligence/ veterinary malpractice; therefore, Plaintiffs' attempt to assert an additional cause of action for general negligence is improper in thi...

Excerpt: ...rces. As the Court found when it denied a similar motion by Defendant Leitner, “Proper voir dire will be sufficient to address issues related to the jury's ability to competently perform its duties. . . . Where liability is disputed, there is much greater reason to bifurcate the phases of the trial. A jury in this case would be presented with evidence by Plaintiffs relating to the dynamics of the collision, their injuries and other elements of ...

Excerpt: ...f Prayer in Plaintiff's First Amended Complaint – GRANTED, in part, with leave to amend; DENIED, in part. The Motion to Strike is GRANTED, with leave to amend, as to the prayer for punitive damages. (Code Civ. Proc. §436.) The pleading fails to allege facts that amount to malice, fraud, or oppression within the meaning of Civ. Code §3294. The Motion is DENIED on all other asserted grounds. While the Court will grant leave to amend in this ins...

Excerpt: ... motion. However, as it appears to the Court that evidence may exist which supports Defendant's position herein, the hearing is continued to allow Defendant the opportunity to submit properly authenticated evidence for the Court's consideration. Defendant shall file and serve such evidence no later than November 27, 2019. Plaintiff may file and serve a brief response to such evidence by December 4, 2019. In addition, the Court notes that Defendan...

Excerpt: ...lic interest.” The social media posts that underlie the causes of action in the cross-complaint were made” in a place open to the public or a public forum.” (Code Civ. Proc., § 425.16, subd. (e)(3)); see Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895-898 [finding the internet, generally, is a public forum]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 476 [finding an HOA newsletter was a public forum because it was “...

Excerpt: ...ness and Professions Code section 6148, subdivision (b). (Code Civ. Proc., § 403.30, subd. (a)). Moreover, defendant has provided no authority showing that compliance with Business and Professions Code section 6148 is a defense around which plaintiff must plead, and the court rejects this contention. ...

Excerpt: ...e and finds it needs additional information before it can enter an order that both adjudicates the MSJ/MSA and responds to the reference to a need for a state law determination that is contained in the remand order and related documents. The court therefore continues the MSJ/MSA. The court is aware that this continuance will interfere with the previously scheduled trial date, and the trial currently set for November 5, 2019, is hereby VACATED. Ea...

Excerpt: ...finds that Plaintiff has failed to meet her burden in this regard. Specifically, Plaintiff has failed to produce evidence of a factual dispute with regard to the issue of whether Defendant exercised ownership, possession, or control of the subject property at the time of the alleged injury. (See, e,g. Preston v. Goldman (1986) 42 Cal.3d.108). In fact, the undisputed evidence confirms that Plaintiff cannot establish this element. (UMF 13, 14.) The...

Excerpt: ...roduce the corporate records for inspection under Corp. Code §1602. However, the Court has the ability to impose just and proper conditions on the inspection (Corp. Code §1603(a)) if the corporation is able to demonstrate, by an evidentiary showing, that a protective order is necessary due to the presence of egregious circumstances, i.e. to prevent a tort against the corporation. (Saline v. Superior Court (2002) 100 Cal.App.4 th 909, 914-915.) ...

Excerpt: ...ving papers, the Court sustains the Demurrer in its entirety. Plaintiff acknowledges discovery of the facts underlying her alleged causes of action no later than 2007; therefore, the action is time-barred for Plaintiff's failure to comply with the requirements of the Government Claims Act. Despite the lack of opposition, the Court has reviewed the allegations of the Plaintiff's untimely-filed First Amended Complaint and finds no allegations there...

Excerpt: ...ly, the verification provided is insufficient and of no legal effect under the circumstances described in the moving papers. Therefore, Defendant is entitled to an order compelling Plaintiff to provide further verified responses, without objections, and to produce responsive documents within 14 days. (Code Civ. Proc. §§2031.310(a), 2031.280.) Further, the Court finds that Defendant is entitled to an award of monetary sanctions. (Code Civ. Proc....

Excerpt: ...pecifically, Defendant has failed to submit admissible evidence demonstrating facts supporting the claims of oppression, undue burden, and/or expense. Based on the information submitted, the Court is not convinced that Defendant engaged in a meaningful attempt to meet and confer prior to filing the instant motion. The parties are encouraged to undertake that process in good faith with regard to further discovery disputes. The Court declines to aw...

Excerpt: ... with her obligations under the Discovery Act, and that such failure has prejudiced the defense's ability to evaluate Plaintiff's claims and to prepare for trial. Therefore, the Court finds that terminating sanctions are warranted. (Code Civ. Proc. §2023.030(d).) Plaintiff Rosalinda Palomo's Complaint shall be dismissed as against Defendant Karla Ann Ciarolla herein. No further monetary sanctions are awarded. ...

Excerpt: ...eking relief from default. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696; Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-G, § 5:401.) The Court further finds that relief from entry of default will result in no demonstrable prejudice to Plaintiff. (Elston, supra, 38 Cal.3d at p. 233; Fasuyi, supra, 167 Cal.App.4th at p. 696 [“very slight evidence” required to set as...

Excerpt: ...ed that Plaintiff had alleged only the glare of the sun as a dangerous condition. Plaintiff's third amended complaint alleges additional factors, such as location, failure to warn and the creation of a trap for students and drivers. Based upon the “amalgam” of these factors, reasonable minds could come to more than one conclusion as to whether a dangerous condition existed. As such, it is the jury's role to determine the facts and whether tho...

Excerpt: ...th the Court's Minute Order of December 19, 2019, which did not confirm the tentative ruling but instead set the matter for contested long-cause hearing which has yet to occur. Consequently, moving party's motion to compel response to the subject discovery is hereby GRANTED. Opposing party shall serve complete, verified responses without objection within fifteen (15) days of this Order. That said, moving party does not dispute that the opposing p...

Excerpt: ...the causes of action set forth in Plaintiff's Complaint by producing evidence of each element of the respective causes of action asserted therein. (Code Civ. Proc. §437c(p)(1).) Therefore, Plaintiff is entitled to judgment as a matter of law. The Court notes that Plaintiff submitted a proposed order which includes a provision for awarding costs. However, no Memorandum of Costs or other description of the claimed costs has been filed to date. Mor...

Excerpt: ... duplication and unnecessary costs and to make discovery settlement negotiations more efficient and effective. The motion to consolidate is GRANTED and the controlling case number will be #2016283. All further papers/pleadings shall be filed under the controlling case number. Parenthetically, the Court requests counsel appear, at least, via CourtCall to address a scheduling issue which is likely to impact the looming trial. ...

Excerpt: ...present hearing. The Court considers that rejection on this purely procedural basis would be a substantial waste of judicial resources. Even worse, denial for this reason would simply result in additional subpoenas for the identical records being directed to the actual custodians, the most important of whom are in fact under the auspices of Defendant County, whose counsel would then interpose the exact evidentiary privilege raised in this proceed...

Excerpt: ...of material fact regrading whether Robert intended for his son, Joe, to receive trust distributions without the consent of the independent trustee.All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important...

Excerpt: ...of material fact regrading whether Robert intended for his son, Joe, to receive trust distributions without the consent of the independent trustee.All evidentiary objections by either party are overruled, either on the merits or because they do not pertain to evidence that was essential to the court's analysis of MID's MSJ/MSA. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [encouraging parties and trial courts to focus only on “important...

Excerpt: ...ed Complaint – DENIED. The Court finds that the prayer for attorney's fees is supported by the statutory provisions governing the First Cause of Action. (Civ. Code §56.35.) ...

Excerpt: ...ition fees, or $4,328.10 * All of the mediation fees, or $2,925, because these costs do not appear “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd.(c)(2).) The court finds Borra's November 7, 2018 offer under section 998 was timely because subdivision (b)(3) of section 998 states: “A trial shall be deemed to actually commence at the beg...

Excerpt: ...re, Plaintiff is entitled to an order compelling Defendants to provide answers, without objection, to the subject discovery and to produce the requested documents within 14 days from service of entry of the Court's order. Further, the Court finds that Plaintiff is entitled to an award of monetary sanctions in the amount of $610 against Defendants and their counsel herein, to be paid to Plaintiff's counsel within 14 days. (Code Civ. Proc. §§2030...

Excerpt: ...l to the determination of the amount to be awarded and therefore mandatory. (Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48; Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322-324.) Specifically, the Court finds a substantial discrepancy between the number of hours Plaintiff's counsel claimed in Mr. Romano's correspondence to defense counsel on 12-18-18 and the number of hours counsel now claims for the same time period, based on the ...

Excerpt: ...llful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules.' ” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994.) Plaintiff is to appear to update the court on his efforts to comply with his discovery obligations. The court grants the request for judicial notice of the complaint, minute orders dated August 23, 2018 and September 10, 2018, defendan...

Excerpt: ...eaningful interactions as to issues, such as Defendant's claims of privilege as to certain categories of documents, which might narrow the scope of the requested materials. The Court believes that with additional efforts expended in good faith, the potential exists for the parties to narrow or resolve the issues raised herein. Therefore, the matter is continued and counsel are instructed to meet and confer in person or by telephone with regard to...

Excerpt: ...does not permit him to impair or destroy the client's cause of action or defense. (Seacall Develop. Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4 th 201; Orange Empire Nat. Bank, (1968) 259 Cal.App.2d 347.) Defendant shall file her answer within 20 days. ...

Excerpt: ...fically as it concerned the discovery of electronically stored information in Defendants' HourTrack and current, cloud-based UltiPro systems. Therefore, the instant motion is DENIED as it concerns Defendants' conduct in that regard. As to the recently discovered electronically stored information contained within Defendant's former UltiPro system, the Court finds that with additional efforts expended in good faith, the potential exists for the par...

Excerpt: ...claim against Defendant Rodriguez. The Court further finds that Plaintiff's evidence indicates that Defendant has no equity in the property. Therefore, the Court is inclined to order that the undertaking requirement is waived as to Plaintiff and to require Defendant to file an undertaking in the amount of $32,420.31 as a redelivery bond. (Code Civ. Proc. §§515.010(b), 515.020.) Subject to those terms, the Court is inclined to order that the wri...

Excerpt: ... admission numbers 23, 37 and 38, especially when the court considers the definition of, “YOU,” that Plaintiff used in the discovery requests, cannot be answered with enough accuracy to justify subjecting the Souzas to cost of proof sanctions should they decline to admit an act of which they may be unaware. Similarly, form interrogatory numbers 9.1 and 9.2 ask the Souzas to respond to a multitude of allegations, over many years, involving num...

Excerpt: ...r[s embraced by requests for admission asking him to admit he caused damage to defendant's property]” (Code Civ. Proc., § 2033.420, sub. (b)(3)), since the jury found plaintiff had been negligent but no causation was present. In addition, even if the evidence shows plaintiff should have admitted that he broke and/or removed from the ground some of defendant's vines, the court finds these particular admissions were “of no substantial importan...

Excerpt: ...thout objection, to Defendant's Form Interrogatories – Set Two, Supplemental Interrogatories – Set One, and Supplemental Request for Production of Documents – Set One within 10 days of the instant hearing date. In addition, Plaintiff is again ordered to comply with the Court's previous order awarding monetary sanctions to Defendant on 2-6-19. ...

Excerpt: ...ms of evidence which are not set properly forth in a declaration. (Code Civ. Proc. §2015.5; Cal. Rules of Ct., rule 3.1306.) Even setting these deficiencies aside and assuming arguendo that the Court is authorized to entertain Defendants' request here, the Court finds that Defendants have not made a sufficient showing that the matter is appropriate for complex case designation pursuant to Cal. Rules of Ct., rule 3.400. ...

Excerpt: ...s that the allegations supporting the First and Fourth Causes of Action, when liberally construed, sufficiently state the subject claims. As to the Second Cause of Action, the Court finds that the demurrer is barred by the provisions of Code Civ. Proc. §430.41(b) based on Defendant's failure to challenge the sufficiency of the pleading (on grounds other than the statute of limitations) in her previous demurrer. Therefore, the demurrer to the abo...

Excerpt: ...aintiff's “discovery abuses were ‘willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules.' ” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 994.) Should the court make this order at the hearing as intended, defendant's request for issue, evidentiary and/or contempt sanctions is denied as moot. Finally, the court denies defendant's request ...

Excerpt: ...ue of material fact. (Code Civ. Proc. §437c(p)(2).) The Court finds that Plaintiff has failed to meet his burden in this regard. Specifically, the undisputed facts establish that the written lease agreement and subsequent amendment set forth specific terms and conditions for Plaintiff's effective exercise of the purchase option at issue, that the parties agreed thereto, and that Plaintiff failed to fulfill such terms with regard to the subject p...

Excerpt: ...r burden in this regard. Specifically, Plaintiffs have failed to demonstrate facts establishing that Defendant had actual or constructive knowledge of the alleged latent defect on the premises. Moreover, the law does not support Plaintiffs' theory that notice was imputed to Defendant in connection with alleged defects in the original design and/or construction of the premises under the circumstances in this case. (RSB Vineyards, LLC v. Orsi (2017...

Excerpt: ...itioners have provided Respondent with the transcripts of the recordings of the calls that are the subject of this petition and will produce the audio recordings of these calls to Respondent. Respondent's subpoena demanding additional documents, to the extent any exist, and the attendance of additional witnesses at the hearing, is unnecessarily burdensome and an improper attempt to conduct discovery under the limited restraining order statutory s...

Excerpt: ...r burden in this regard. Specifically, Plaintiffs have failed to demonstrate facts establishing that Defendant had actual or constructive knowledge of the alleged latent defect on the premises. Moreover, the law does not support Plaintiffs' theory that notice was imputed to Defendant in connection with alleged defects in the original design and/or construction of the premises under the circumstances in this case. (RSB Vineyards, LLC v. Orsi (2017...

Excerpt: ...itioners have provided Respondent with the transcripts of the recordings of the calls that are the subject of this petition and will produce the audio recordings of these calls to Respondent. Respondent's subpoena demanding additional documents, to the extent any exist, and the attendance of additional witnesses at the hearing, is unnecessarily burdensome and an improper attempt to conduct discovery under the limited restraining order statutory s...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ... appropriately submitted within the timeline established by the agreement, subject to the agreed modification by the parties in the interest of allowing for extended informal discussions. Respondent's argument with regard to the viability of Petitioners' underlying claim is akin to a statute of limitations defense requiring inquiry into the substantive merits of the matter. Such determination falls within the purview of the arbitrator, not the co...

Excerpt: ... appropriately submitted within the timeline established by the agreement, subject to the agreed modification by the parties in the interest of allowing for extended informal discussions. Respondent's argument with regard to the viability of Petitioners' underlying claim is akin to a statute of limitations defense requiring inquiry into the substantive merits of the matter. Such determination falls within the purview of the arbitrator, not the co...

Excerpt: ... the issue of whether the component part (i.e. the NRS cooler) constituted a separate product from the engine, such that application of the economic loss rule is barred by application of the factors articulated in KB Home v. Superior Court (Consolidated Industries Corp.) (2003) 112 Cal.App.4th 1076. (See Facts 2, 3 and Plaintiff's Additional Facts 17-21.) Therefore, the facts herein are not susceptible of only one legitimate inference, and the is...

Excerpt: ... motion to strike the Plaintiff's prayer for punitive damages is GRANTED, without leave to amend. Pursuant to Government Code section 818, public entities in California are immune from liability for punitive damages. Plaintiff has leave to amend the second cause of action of her Complaint as noted and her First Amended Complaint shall be filed not later than February 25, 2019, pursuant to California Rules of Court, rule 3.1320(g). ...

Excerpt: ...se inappropriate.” Additionally, once the Defendants' examiner identified the potential tests that he might employ, there was no requirement that he identify in advance all of the specific tests he would actually conduct, since the ultimate selection depends upon the Plaintiff's presentation of his injuries during the examination. ...

Excerpt: ...s' vision of the crosswalk – is transitory and has nothing to do with the design of the crosswalk. This is insufficient to allege a dangerous condition of public property. See e.g. Erfurt v. The State of California (1983) 141 Cal.App.3d 837. In Erfurt, Plaintiff alleged physical characteristics of the freeway in question were “dangerous” including: (1) the three-lane freeway split into a “Y,” (2) a concrete pillar that supported an over...

Excerpt: ...exas for them), the “non-refundable” costs might have been avoided. Equally, Defendant's counsel could have communicated his unavoidable conflict a few days earlier – which may have made a difference with regard to the Plaintiffs' “non-refundable” costs. The miscommunication related to the November 9, 2018, fax is immaterial to a consideration of sanctions – but just another example of the lack of effective communication between the p...

Excerpt: ...ement agreement. Of course, the Court has discretion to approve a reversionary settlement (one that provides that unpaid residual funds will be returned to defendant), but such settlements are difficult to evaluate for fairness. If a reversionary settlement is negotiated, the parties should articulate the reasons it is in the class' best interests and the trial court's order should address that issue. (See In re Microsoft I-V Cases (2006) 135...

Excerpt: ...ement agreement. Of course, the Court has discretion to approve a reversionary settlement (one that provides that unpaid residual funds will be returned to defendant), but such settlements are difficult to evaluate for fairness. If a reversionary settlement is negotiated, the parties should articulate the reasons it is in the class' best interests and the trial court's order should address that issue. (See In re Microsoft I-V Cases (2006) 135...

Excerpt: ...he trust in Santa Clara County by virtue of his June 2016 “Petition for Settlement of Final Account” filed in Case No. 1-15-PR-177570; and the fact that Ms. Webb in her capacity as the current successor co-trustee plans to continue administration of the trust in Santa Clara County Case No. 1-15-PR-177570 by preparing an additional accounting of the trust and filing it in Santa Clara County. The motion to dismiss the petition is DENIED. Additi...

Excerpt: ...If the parties, through counsel, are unable to agree on 3 potential appointees, then each party shall separately submit 2 such recommendations. Such recommendations for potential appointees, together with a statement of each individual's qualifications, shall be submitted to the Court within 20 days. b) Defendant's Motion for Stay of Civil Proceedings – GRANTED, in part. The Court has considered the nature and extent of the competing interests ...

Excerpt: ...of $383 and Plaintiff has not submitted a cost bill or otherwise substantiated such items by declaration in connection with the motion. Therefore, Plaintiff's counsel shall submit a revised form of order and judgment without reference to the specific amount of the claimed costs. Plaintiff may pursue the recovery of same through the statutory procedures for submission of a cost bill. ...

Excerpt: ...er, the Court finds that Plaintiff is entitled to an award of monetary sanctions in the amount of $360 against Plaintiff and her counsel herein, to be paid to Plaintiff's counsel within 14 days. (Code Civ. Proc. §§2030.290(c), 2023.010, 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) b) Plaintiff's Motion to Compel Responses to Demand for Production of Documents and Things and Request for Monetary Sanctions – GRANTED, and unopposed; The Cour...

Excerpt: ... and that Nichols has failed to meet his burden in opposition. 1. First cause of action for injunctive relief “Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Because all causes of action fail as described below, there is no valid claim on which the base an injunction. 1. Second cause of action for inverse condemnation The first amended complaint...

Excerpt: ...lludes to in his Cross-Complaint. Therefore, Defendant Thomas Trombetta has leave to file an Amended Cross-Complaint not later than February 14, 2019. b) Plaintiff Sherry Trombetta's Motion to Strike Defendant Thomas Trombetta's Unverified Answer to Verified Complaint - GRANTED, with leave to amend, and unopposed. An Answer to a verified Complaint must itself be verified. Code of Civil Procedure section 446. Defendant Thomas Trombetta's Answer to...

Excerpt: ...y the Court. Moreover, the Court further finds that the Complaint fails to allege facts sufficient to state any cause of action against the demurring defendants and the Court does not believe that amendment of these causes of action is possible. Therefore, the Complaint is dismissed with prejudice. ...

Excerpt: ...ovides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.)” The Court is not unsympathetic to the fact that Plaintiff is attempting to represent himself in this matter – which is undoubtedly difficult for someone without a legal background. However, the law requires the Court to hold a self-represen...

Excerpt: ...y successful, the Court DENIES the Plaintiff's request for an award of monetary sanctions. b) Plaintiff's Motion to Compel Further Responses to Special Interrogatories, Set One, From Defendant Valley Subacute & Rehabilitation Center, LLC dba Valley Subacute & Rehabilitation Center and Request for Sanctions ($1,000) – (Continued from 12/28/18) - GRANTED, in part and DENIED, in part as follows. Defendant has now identified over 50 employees (both...

Excerpt: ...n award of monetary sanctions against Plaintiff and his counsel in connection with the issues represented in the instant motion, as well as the failure to meet and confer regarding the issues presented herein. (Code Civ. Proc. §§2030.300(d); 2023.010(f); 2023.020; 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Therefore, Defendant's request for monetary sanctions is GRANTED in the amount of $500, to be paid to Defendant's counsel within 14 da...

Excerpt: ...iled to meet its burden of submitting admissible evidence to this Court to establish its prima facie entitlement to judgment as a matter of law. As pointed out in the opposition, Defendant is required to submit admissible evidence to support its purportedly undisputed facts. Here, Defendant fails to do so, and therefore the burden of producing any evidence to show that there are disputes of material fact was never passed to Plaintiff. Even if the...

Excerpt: ... or anything else. Therefore, on the face of the pleadings, the City of Modesto states a cross-claim for Equitable Indemnity, Apportionment of Fault and Contribution and Indemnity as against Cross-Defendant Honeywell International Inc. Cross-Defendant's answer to the Cross-Complaint shall be filed not later than February 8, 2019, pursuant to California Rules of Court, rule 3.1302(g). ...

Excerpt: ...'s alternative arguments do not provide sufficient grounds for granting the motion. Leave of court is not required before filing an amendment pursuant to Code Civ. Proc. §474 in Stanislaus County. Under the circumstances, Defendant has not demonstrated sufficient prejudice to justify denial of Plaintiffs' ability to pursue their cause of action against Mr. Bauman on the basis of delay. ...

Excerpt: ... set forth appropriate material facts and states only allegations and legal conclusions, which are insufficient to support summary adjudication. Moreover, the Separate Statement fails to demonstrate the absence of material factual issues bearing on the existence of a contractual relationship between the parties. As to the Third Cause of Action for Breach of Fiduciary Duty, the Court finds that Defendants, as the moving parties, have met the burde...

Excerpt: ...laintiff's counsel. Under the circumstances, the Court finds that all matters currently on calendar for August 10, 2018 shall be continued to October 16, 2018. In order for Defendant's motion to be heard, however, proper service must be accomplished and proof service filed with the Court. (Code Civ. Proc. §1005; Cal. Rules of Ct., rules 1.21 and 3.1300.) ...

Excerpt: ...laintiff's Motion to Compel Further Responses to Discovery Propounded on Defendants – Given the Court's ruling on the Defendants' Motion for Judgment on the Pleadings and the fact that the discovery at issue in this motion relates almost entirely to the current Fourth Cause of Action in Plaintiff's First Amended Complaint, it seems appropriate to wait to resolve the issues related to the discovery until the Fourth Cause of Action is sufficientl...

Excerpt: ...q Inc. dba Simons Auto Sales had no notice of it. Additionally, the terms of the parties' agreement as set forth in the operative complaint contain nothing about the award of attorneys' fees and costs in the event of litigation between them, so it would appear that the general rule that each party bear its own costs and fees should apply. ...

Excerpt: ...int adequately alleges four causes of action for professional negligence, breach of fiduciary duty, fraud and breach of contract. Further, the Defendant and Cross-Complainant's amendment of the cross- complaint to allege “delayed discovery” was entirely appropriate and does not constitute a “sham pleading” nor “bad faith” filing. Liberally construed and assuming the truth of the matters alleged therein, the causes of action are suffic...

Excerpt: ...�2030.290(a). Therefore, Defendants are entitled to an order compelling Plaintiff to provide answers, without objection, to Judicial Interrogatories, Set One within 14 days. Further, the Court finds that Defendants are entitled to an award of monetary sanctions. (Code Civ. Proc. §§2030.290(c), 2023.010, 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Plaintiff is ordered to pay $265.00 in monetary sanctions to Defendants' counsel within 14 day...