Excerpt: ...ty and to each cause of action on the ground that each fails to state sufficient facts to constitute a cause of action against it. For the reasons set forth below, the special demurrer and general demurrer are SUSTAINED, in full, with 30 days' leave to amend . Uncert a int y This is one of the rare cases where sustaining a special demurrer on the grounds of uncertainty is warranted. Defendant GBS was added to the pleading in place of Doe 1. No ot...

Excerpt: ...r granting preliminary approva l. Having considered the unopposed motion herein 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 Californ ia la w . (Civ il Co d e § 1 7 8 1 ; Co d e Civ . Proc. § 382; Cal. R. Ct., rule 3.769.) Good cause appearing to the satisfaction of the Court, the proposed set...

Excerpt: ...e h ic le warranty. ( Jensen v. BMW of Nort h America , Inc. (1995) 35 Cal.App.4th 112; Ro d r i g u e z v . F C A U S , LLC (2022) 77 Cal. App. 5th 209.) In this regard, the Court notes that the California Supreme Court granted review of Ro d r ig u e z , supra, in July 2022, explicitly allowing the opinion to continue to be cited both for persuasive value and for the limited purpose of establishing the existence of a conflict in authority which...

Excerpt: ...s. The Court therefore GRANTS the preliminary injunction on t h e f o llo w in g c o n d it io n s : 1. P la in t if f is o n n o t ic e t h a t it s o n ly p r iv ile g e is f o r in g r e s s a n d e g r e s s o n t o it s own lands. The Court clarifies that this means Plaintiff's members may NOT cross Defendants' land in order to access current BLM lands. Plaintiff is charged with ensuring its members understand that whatever hunting and o t h...

Excerpt: ...eiro and Darlene Marie Ribeiro, located at 3951 Davis Avenue in Modesto, County of Stanislaus, by eminent domain for the construction of its planned State Route 108/ North County Corridor Phase 1 Project for the public benefit and for all uses necessary, incidental, and convenient thereto pursuant to Code of Civil Procedure section 1255.410 . The Court further finds Plaintiff has, based on an appraisal, deposited the sum of $87,700.00 into the St...

Excerpt: ...d - CONTINUED, to 5/ 3/ 24 at 8:30 am in Department 22; c) Plaintiff's Motion to Quash Deposition Subpoena Seeking Plaintiff's Employment Records from Smithfield Packaged Meats and for Monetary Sanctions again Defendant and/ or it's Attorneys of Record – CONTINUED, to 5/ 3/ 24 at 8:30 am in Department 2 2 a-c) The motions are procedurally defective. A separate statement is required for a motion “”[t]o compel or to quash the production of do...

Excerpt: ...t in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. ” Plaintiff cites no authority for his assertion that liability under Labor Code § 558.1 is the equivalent of alter -ego liability and that the venue rules for alter ego therefore apply. Without such authority, the Court declines to extend alter -e go venue rul es to possible liability under Labor Code ...

Excerpt: ...�the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action. ” Plaintiff's argument in opposition relies heavily on Labor Code § 558.1. The Court notes that this argument fails on its face because the current iteration of this pleading (the First Amended Complaint) does not allude at all to that statute, let alone contain a cause of action based...

Excerpt: ...itting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] The courts “also consider matters which may b e ju d ic ia lly n o t ic e d . ” ( Serra no v. Priest (1971) 5 Cal.3d 584, 591. ) Fir s t Ca u s e o f Ac t io n Defendants contend that the statute at issue does not authorize a reverse validation action. Water Code § 10726.6(a) states, “A groundwater sustainability agency th...

Excerpt: ...e of the claim. Defendants can now use discovery to uncover the specific, evidentiary facts that Plaintiff contends supports the ultimate fact. As for the element of hostility, that is a question for the trier of fact. Second Cause of Action Overruled. The fact that Plaintiff alleged in another complaint the existence of another easement to the same parcels of land is not a conclusive admission that such easements ever existed or do in fact exist...

Excerpt: ... merits, Moving Party objects on the grounds of (1) privacy, and (2) lack of standing. Neither argument is persuasive. One of the chief allegations in this case is that Respondent abused the power-of-attorney agreement to use the proposed conservatee's funds and assets for his own benefit. That makes the information sought quite relevant to this case. While there is a state constitutional right to privacy applicable to financial records, that rig...

Excerpt: ...$82,845 for attornevs fees and $2,810.45 in costs. Paragraph 5 of the Settlement Agreement allows Plaintiffs Counsel to recover his fees and costs for both actions from Defendant Bob Harkrader & Sons Trucking, Inc., with a guaranty from Jacob Harkrader and Robin Harkrader. The Court deems the appropriate market rate in this case to be $450 per hour, taking into account Counsel's experience and the risks inherent in these types of cases. The numbe...

Excerpt: ... the beneficiary of another 1/3 of 40% through the Trust (although William Jackson is seeking to exercise the option he was given to purchase the Trust's interest). Because this inspection is outside of the Discovery Act, if a member has an issue with the inspection, then the appropriate procedural mechanism is for the member to file a civil pleading seeking a writ of mandate against the company—NOT try to shoehorn the issue through a trust pro...

Excerpt: ...Request for Production of Documents, Set Two and Request for Sanctions —GRANTED IN PART AND DENIED IN PART. d) Plaintiff's Motion to Compel Further Responses of Defendant Secret River, Inc. to special Interrogatories, set one and Request for sanctions -GRANTED IN PART AND DENIED IN PART. e) Plaintiff's Motion to Compel Further Responses of Defendant Smart Management & Co., Inc. to Special Interrogatories, set one and Request for sanctions - GRA...

Excerpt: ... Special Interrogatories, Set One and Request for Sanctions —GRANTED IN PART AND DENIED IN PART; d) Plaintiff's Motion to Compel Further Responses of Defendant Secret River, Inc. to Request for Production of Documents, Set Two and Request for Sanctions —GRANTED IN PART AND DENIED IN PART; e) Plaintiff's Motion to Compel Further Responses of Defendant Smart Management & Co., Inc. to Special Interrogatories, Set One and Request for Sanctions �...

Excerpt: ...ave not yet received the Bills of Sale. Without the Bills of Sale, performance cannot occur, and the cause of action for breach of contract has not yet accrued. Defendants therefore have defeated their own sham pleading argument because their admissions demonstrate that the correct cause of action here is anticipatory breach, not actual breach. The cause of action is not barred by the statute of limitations. The statute of limitations on a cause ...

Excerpt: ...ubstantial probability exists that the overriding -nterest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restri ctive means exist to achieve the overriding interest. The overriding interest here is the "highly confidential" and "commercially sensitive" information contained in the declarations filed by Mr. Hughes and Mr. Retsloff in support ofthe settlement negotiations between Plai...

Excerpt: ...rified that when — as is the case here - a petition challenges the disinheritance of a beneficiary from a trust, the petitioner has "limited stand-ng" to challenge the validity of the trust instrument which disinherited him. Therefore, the Court must first decide the "threshold issue" of the validity of the trust instrument which disinherited Petitioner here the Second Amendment to the Trust. If the trust amendment pursuant to which the benefic...

Excerpt: ...12/29/23 at 8:30 am in Department 22 is ADVANCED and CONTINUED to 1/12/24 at 8:30 am in Department 22, to be heard concurrently with the motion to award costs. MOTION FOR NEW TRIAL: The Court will hear arguments on the following issues: 2. Special Verdict Form Responses re Vicarious Liability: The Court notes that Plaintiff failed to address this argument in his opposition. The Court would like to hear from the parties on this Issue. Damages Awar...

Excerpt: ...Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1153-1154.) The Court finds that Plaintiff has failed to demonstrate that the agreement should not be enforced herein. Specifically, Plaintiff has demonstrated only a slight degree of procedural unconscionability in connection with the adhesive nature of the agreement, and that alone is insufficient to render the agreement unenforceable. Plaintiffs arguments ...

Excerpt: ...bode" means the place defendant holds out as his or her principal residence and where he or she is most likely to receive actual notice. Zirbes u Stratton (1986) 187 cal.App.3d 1407, 1415-1417. In Zirbes v. Stratton the plaintiff left copies of the summons and complaint against Wife (i) at the restaurant she owned with estranged Husband (but she did not work there); and (ii) at her mother's home (listed as her residence on her drivers license). T...

Excerpt: ... or usual place of abode" means the place defendant holds out as his or her principal residence and where he or she is most likely to receive actual notice. Zirbes u Stratton (1986) 187 cal.App.3d 1407, 1415-1417. In Zirbes v. Stratton the plaintiff left copies of the summons and complaint against Wife (i) at the restaurant she owned with estranged Husband (but she did not work there); and (ii) at her mother's home (listed as her residence on her...

Excerpt: ...convenient Forum — a, b and c- DENIED. California favors contractual forum selection clauses so long as they are entered into freely and voluntarily, and their enforcement would not be unreasonable. (Smith, Valentino & Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 496.) However, a forum selection clause will not be enforced if doing so would bring about a result contrary to the public policy of this state. (Smith, supra, at pp. 496-497; C...

Excerpt: ...y in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts." The issues as stated in the notce of motion and moton do not duplicate the issues set forth in the separate statement. Because they are different, Defendants did not have fair notice of which issues to address, and the Court is unclear on what issues it should be deciding. Assuming the issues as set forth in the separate statement are the...

Excerpt: ...the statutory limits placed on motions for summary adjudication in this instance. Additionally, Plaintiff's previous motion for summary adjudication was denied on the merits— thus she is not entitled to a second bite at the apple. In determining the previous motion, the Court properly applied the statutory limits set forth in Section 437c and found that the issue on which the Plaintiff was attempting to secure summary adjudication would not com...

Excerpt: ...ight to li
Ÿgate this ma
©er to the extent of Defendant Gary Lee Cooksey dba Cooksey Construc
Ÿon's “available” insurance proceeds – the Court Þnds that the ques
Ÿon of “availability” is not fully and fairly resolved such that the Court can approve the se
©lement as it currently stands. Here, the non-se
©ling party is arguably en
Ÿtled to conduct discovery in order to fully answer the ques
Ÿon of what insurance proceeds are “...

Excerpt: ...ood faith meet and confer herein. As set forth in Plaintiffs' counsel's reply in support of the motions, Defendant has served supplemental responses to the Plaintiffs' Requests for Production of Documents, Set One, and Plaintiffs anticipate "meeting and conferring on these issues." Counsel are encouraged to engage in substantive meet and confer efforts prior to the next hearing date and are reminded that civil discovery is intended to be self-exe...

Excerpt: ...ration is that Plaintiff is worried about Defendants' financial stabil-ty. There is no indication that Defendant is in a precarious financial situation or has refused without explanation to pay a disputed claim. To support a writ of attachment Plaintiff needs to allege more than that Defendant owes it money and hasn't paid Plaintiff should submit evidence of Defendant's "past dishonesty, failure to meet obligations, or concealment of assets." Wes...

Excerpt: ...days of the Court's order. The responses shall conÞrm that Pe
Ÿ
Ÿoner will produce all non-privileged documents responsive to Respondent's demands that are in his possession, custody, or control. Pe
Ÿ
Ÿoner shall also produce all non-privileged documents responsive to Respondent's Demand for Produc
Ÿon of Documents Nos. 1-25 and 27-46 that are in his possession, custody, or control within ten (10) days of the Court's order. Pe
Ÿ
Ÿoner sha...

Excerpt: ...When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notce of entry of the order and based upon new or different facts, circumstances, or law make application to the same judge or court that made the order, to reconsider the matter and modify, amend, re...

Excerpt: ...e to Mr. Broderick-villa's supplemental declaration on August 4, 2023. The Court has decided to consider Mr. Broderick-villa's supplemental declaration because Mr. Eighmey has had time to file a responsive pleading on the merits and because the Court wishes to rule on the merits. Ms. Vega claims that Strategic Legal Group's fees are being paid by adverse party Miguel Duran Jr., which constitutes a violation of California Rule of Professional Cond...

Excerpt: ...1, 2022, or January 1, 2023, and the action was filed on January 11, 2023. Defendant is mistaken as to the time when the action was filed. The Complaint, naming only Doe's, was filed on December 19, 2022, which was within the three-year statutory revival period as set forth in 340.1(q). Ten days later, on December 29, 2022, the Certificate of Merit required by Code Civ. Proc. section 340.1(g)(3) was filed, which was well within the 50 days allowe...

Excerpt: ...ication for an order has been made to a judge, or to a court, and granted ...any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The Motion does not comply with Code Civ. Proc. secton...

Excerpt: ... newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. Defendant claims that since the first motion for summary judgment was filed, new facts have emerged which show that Mr. Amin did not exercise control over phases of the construction of the building, and the Court of Appeal has established a new standard for constructive notice of dangerous defects. However, the "newly disco...

Excerpt: ...rties to the marriage, and the Family Code does not address real property disputes involving third parties, as does this dispute. Therefore, a declaratory relief cause of achon involving not only the parties to the marriage but also a third party is properly before this Court. The Fourth Cause of Action for Breach of Fiduciary Duty This cause of action is asserted against Adam Vanderpool, but not Diane Neufeld. Family Code section 1101(a) provide...

Excerpt: ...rs, including, but not limited to, appointment notices, diagnoses, doctor's notes, bills, and correspondence, for pur physical, mental damage or emotional distress, since January 1, 2012. RFP No. 43 — For the health care practitioners identified in Interrogatory No. 5, a fully executed HIPAA Authorization for Release of Medical, Psychiatric, and/or Psychological Records, by you for all medical and associated billing records for visits and treat...

Excerpt: ...he status of the arbitration. Plaintiff Entered Into the Arbitration Agreement, and the Agreement Covers the Dispute A valid and enforceable agreement requiring the resolution of employment-related disputes through arbitration precludes the employee's right to pursue claims in the judicial context. Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 123. The only prerequisite for a court to order arbitration is a determination that the partie...

Excerpt: ...shall state the specific ground upon which the objection is taken and, if the objection is taken by answer, the specific facts upon which the objection is based. An objection may be taken on more than one ground, and the grounds be inconsistent. Defendant has not stated specific facts in support of any of its affirmative defenses. The defendant makes factually unsupported allegations, such as the County has not established a right to take the Pro...

Excerpt: ...fails to survive the statute of frauds, because the FAC is based on an alleged oral contract to purchase real property, which under Civil Code secton 1524(a)(3) is required to be in writing. However, an exception to the statute of frauds is the doctrine of partial performance, pursuant to which an oral agreement for the transfer of an interest in real property is enforceable when the buyer has taken possession of the property, and either makes a ...

Excerpt: ... by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The Motion does not comply with Code Civ. Proc. secton 1008(a), because plaintiff has not shown any new or different facts, circumstances or law. Pla...

Excerpt: ...ferred the three parcels to his daughters, and petitioner has not shown that Arnaldo did not have the authority to do so. As a result of Arnaldo recording the Affidavit of Surviving Spouse, the daughters' parcels were arguably Mr. Avila's separate property as a matter of law pursuant to Probate Code section 13540 (the property shall be free of the rights of the state of the deceased spouse or of the devisees or creditors of the deceased spouse to...

Excerpt: ...that interest accrues at the rate of 10% per year through December 31, 2022, and thereafter interest accrues at the rate of 5% per year. Thus, the judgment only accrued interest at the rate of 5% per year between January 1, 2023, and March 22, 2023. Therefore, the total interest is $7,831.46, not $7,861.41, and the total renewed judgment is $15,819.58, not $15,834.53. Plaintiff asks that the Court use a 10% interest rate through the date of the r...

Excerpt: ...f Tree Guys, would cut and/or trim some palm trees on certain real property in lieu of a cash payment so Tree Guys could store some tree cutting equipment at a yard owned by defendant Eagle Valley Investment. Declaration of Larry Buehner, paragraphs 2 and 3. Thus, it cannot be determined as a matter of law that Tree Guys did not owe a duty to plaintiff Brandon Garcia. Allis-Chalmers Corp. v. Superior Court (1985) 168 Cal. App. 3d 1155, dæs not m...

Excerpt: ...inistrator reports that all the distributions under the Settlement are complete and, if needed, an Amended Judgment is submitted to address distribution of any unclaimed funds in compliance with Code Civ. Proc. section 384. The settlement terms are as follows: (1) The settlement class is composed of all persons who are or were employed in California by defendant as non-exempt employees at any tme from March 5, 2017 through September 30, 2022 (app...

Excerpt: ...s not considered plaintiff's unauthorized Supplemental Reply filed on June 22, 2023. Code Civ. Proc. section 1048(a) provides for the consolidation of actions: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to...

Excerpt: ...conference for Thursday, August 24, 2023, at 8:30 a.m. in Department 22. Clerk to give notice of the Court's ruling. Due to the amount of time which has elapsed since the entry of default judgment, the Court cannot grant relief pursuant to Code Civ. Proc. section 473(b), Code Civ. Proc. section 473.5, or Civil Code secton 1788.61. However, Civil Code section 1788.61(e) prov-des that 1788.61 shall not limit the equitable authority of the court or ...

Excerpt: ...hursday, July 13, 2023. a) Ms. Vega filed a Reply at 5:22 p.m. on Friday, June 16, 2023. According to the proof of service attached to the Reply, it was served by electronic mail and regular mail on June 15, 2023. On June 20, 2023, Ms. Yciano filed an objection to the Court considering the Reply because it was filed and served three days after the final day to file and serve as set by the Court on May 12, 2023. The Court was very clear at the hea...

Excerpt: ...e Buyers' Final Settlement Statement; and The Final Settlement Statement. See Supplemental Declaration of Robert Clancy, paragraph 3, and Exhibit 10 (Declaration of the custodian of records for North American Title, and copies of the above documents). The Court has considered the above documents because there is really no dispute that the documents are genuine: they were just not properly authenticated by attorney Clancy in the original moving pa...

Excerpt: ... Buyers' Final Settlement Statement; and The Final Settlement Statement. See Supplemental Declaration of Robert Clancy, paragraph 3, and Exhibit 10 (Declaration of the custodian of records for North American Title, and copies of the above documents). The Court has considered the above documents because there is really no dispute that the documents are genuine: they were just not pro#rly authenticated by attorney Clancy in the original moving pa#r...

Excerpt: ...uest for Sanctions in the amount of $2,280.00 a) GRANTED IN PART. Defendant Winco Holdings, Inc. is ordered to serve a verified further response by no later than June 30, 2023, limited to FEHA-based actions filed in the last ten years involving disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, retaliation and wrongful termination in violation of public policy. Discl...