Excerpt: ... 2023, seeking a total of $6,825.50 in costs: $1,ff9.50 for trial court costs, and $5,155.90 for appellate costs. Mr. Limon timely filed a Motion to Tax Costs. Circle K claims costs of $4,716.70 under Item No. 6 of the Memorandum of Costs on Appeal for transmitting, filing, and serving of record, briefs, and other papers. See Stiller Declaration, Exhibit B, Memorandum of Costs on Appeal. Mr. Limon is challenging $4,489.20 of these costs as unreco...

Excerpt: ...on v. Mohamad, case No. CV-22-00032. The Court views it as likely that it will DENY the motion and stay the Hodgson case. The Court is somewhat confused in that all of the pleading reference a jury trial. However, demands for specific performance are not entitled to a jury (See: Darbun Enterprises v. San Fernando Community Hospital (2015) 239 cal.App.4± 399.) If Khan is successful, Hodgson would have a right to have the remainder of the case hea...

Excerpt: ...SUSTAINED. The assertions are vague as to the manner in which this was received. Objection 4: The Foundational objection is SUSTAINED. The Court notes that the declaration asserts without evidence that this is a picture prior to the breaking of the dial. Plaintiff has demonstrated Mr. Buske's status as a retained consultant to Plaintiff's counsel prior to the designation of experts in the matter. Therefore, Defendants' right to obtain discovery f...

Excerpt: ...D, and unopposed; sanctions reduced. (a) The Court finds that Defendant entirely failed to respond to the subject discovery and all objections are waived. (Code Civ. Proc. SS 2030.290(a).) Therefore, Plaintiff is entitled to an order compelling Defendant to provide verified responses, without objection, within 30 days. (Code Civ. Proc. SS 2030.290(b).) The Court further finds that Plaintiff is entitled to an award of monetary sanctions in connect...

Excerpt: ... Court is mandated to seriously consider even unreasonably late amendments and to assess the potential prejudice of granting such an amendment. Defendants outline additional discovery that would need to be undertaken but concede that those issues would be resolved with a continuance of the trial date. Given the slight or non-existent prejudice due to the lateness of the filing, the Court believes it is constrained to grant the motion. There is a ...

Excerpt: ...a) The judgment may not be enforced; (b) All enforcement procedures pursuant to the judgment or to a writ or order issued pursuant to the judgment shall cease; and (c) Any lien created by an enforcement procedure pursuant to the judgment is extinguished. As an alternative to filing an application for renewal of judgment, Code Civ. Proc. § 683.050 allows for the bringing of an action on a judgment within the 10-year deadline as specified in Code ...

Excerpt: ...CACI 204 at trial. The use notes of CACI 204 encourage case-specific instructions. This may not have been intentional, but the evidence is likely sufficient for the issue to be analyzed by the jury. The history appears to be as follows: Crash: December 16, 2016. Traffic photos taken by ID tech Lavonne Nicolai: Same day. Traffic collision report provided to Plaintiffs: January 26, 2017. Plaintiff's counsel requested all Nicolai photographs from MP...

Excerpt: ...laimed Checks Non-Reversionary: State Controller's Office, Unclaimed Property Division, in name of each unclaimed payee. This is a wage and hour dispute. A separate case against Defendant had an approved PAGA settlement on July 29, 2022, which appeared to preclude many of Plaintiff's PAGA claims in this case. For good cause shown, the class is certified for settlement purposes only. (Cal. Rules of Ct., rule 3.769(c).) Based on the moving papers, ...

Excerpt: ...e 2020 ICF Report at the time the project was approved. Counsel now asserts this was in error. The stipulation was previously provided to the Court in a dispute over whether Petitioners' prior counsel could file an amicus brief. A party may not offer a fact for one purpose to its advantage, and then later ask the Court to disclaim that fact; if it were one party, it would be a judicial admission, but in this case both parties stipulated to the fa...

Excerpt: ...t is entitled to a greater amount of deposit. What evidence do I have to support either figure? The Court view the hardship on Plaintiff to be substantial and likely outweighs the hardship on Defendants. However, the County asserts in its reply that granting an extension to leave the house until August, 2023 will cause it hardship. What specific construction issues has the County shown that cause this to be unreasonable? The County must prove “...

Excerpt: ...urisdiction to make the finding. If Alvarenga Transport LLC wishes to argue that matter, the Court will hear it despite the lack of filed opposition. The Court finds that the notice of settlement, application for good faith determination and proposed order were timely filed and properly served, with proof of service timely filed, as provided by law. (Code Civ. Proc., § 877.6(a)(2); Cal. Rules of Ct., rule 3.1382.) The time in which any non-settl...

Excerpt: ...2 of the joint stipulation says that “Within thirty (20) [sic] calendar days after preliminary approval,” Defendant shall provide the names of class members to the settlement admistrator. Counsel also stipulates to mailing the Class Notice within 30 days of preliminary approval. I prefer to honor the parties accelerated schedule but I am uncertain as to how to effectuate this. The Court intends to find good cause to certify the class for sett...

Excerpt: ...make it easier to seek forgiveness than permission. 3. The Court notes it is tentatively unsympathetic to Defendant's argument as to the depositions of Robertson and Starr, as these appear to have been delayed not through the fault of Plaintiff. I will hear argument as to the objections to these depositions and the others. 4. There is a substantive alteration in the Dunlap declaration as to the hazard of the curve. Should the court consider this?...

Excerpt: ... attorney affidavit of fault and finds counsel's acceptance of blame to be laudatory. That said, as a matter of law, the mandatory provisions of the relief statute only apply, based on the plain meaning of the text, to defaults (including default judgments) or dismissals and their procedural equivalents. (Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321. The Court is sympathetic to counsel's problems, but is puzzled as to two things: 1. The ...

Excerpt: ...settlement includes attorney fees of $93,333.34, costs of $25,000.00, a class representative enhancement of $20,000.00 for the named plaintiff, administrative fees of $7,000.00 and $10,000.00 in PAGA penalty fees of which $7,500.00 goes to the LWDA. The Court has reviewed the declarations in this case and finds the proposed settlement is within the range of reasonableness and deemed to be presumptively valid, subject to any objections that may be...

Excerpt: ...the 9th Circuit case Ngo v. BMW (2022) 23 F.4th 942 without taking judicial notice. The Court sustains the objections to the declaration of Aaron Cohen in their entirety. Further, the Court seriously considered sanctioning Plaintiff's counsel for their efforts to put before this court the unpublished rulings from other trial courts in violation of Rule of Court 8.1115. (See TBG Ins. Service Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 447, ...

Excerpt: ...o be a non‐jury issue to be determined by the Court while monetary issues could be determined by a jury. (See: Darbun Industries v. San Fernando Community Hospital (2015) 239 Cal.App.4th 399.) This case may therefore require separate trials on the jury and non‐jury issues depending on the parties' positions. This reduces the chance of inconsistent verdicts, but nonetheless the equitable portions of this proceeding requires decisions affecting...

Excerpt: ...en questioned the City's counsel in chambers. The city made representations as to what those documents were which were accurate in one case and inaccurate in another. Given the long history of these cases, providing the wrong set of documents to the Court was not best practice. The Court has determined that it needs the transcript of the last hearing. The Court intends to proceed as follows: 1. The Court will review the transcript. 2. The Court w...

Excerpt: ... Instead, the Court elects to reach the merits. On March 5, 2021, Plaintiff filed suit against Hillside Ag Management, LCC and Brian Caetano. On April 14, 2021, the lawsuit was served. In May, 2021, Brian Caetano and Del Valle Farm Labor Services, Inc. President Adrian Cruz signed a settlement agreement calling for Caetano to pay $73,406.95 per year every year from December 31, 2021 to December 31, 2025. Caetano didn't pay the December 31, 2021 i...

Excerpt: ...atthew Herrera and Does 1‐20. As to the issues involving Ali Nowaid, the Court overrules the demurrer. Nowaid is alleged to have acknowledged his ownership interest in the mobile home park to the California Housing and Community Development Agency, and he was also listed as an owner on a citation. These are the sort of specific factual allegations to clear the relatively low hurdle at the pleading stage that Nowaid is an owner‐in‐fact and h...

Excerpt: ... changed the law in response to contrary older cases. The parties agree that the Court can enter an order to enter the settlement agreement. To the extent that the Court needs to interpret the settlement agreement, the Court has authority to do so. Mailloux contends that the Court cannot now enforce the settlement. This is incorrect; he cites cases in which the motion is for entry of judgment, not enforcement of judgment. The Court can enforce se...

Excerpt: ... fees. The 40% requested is inadequately supported, and Plaintiff's submissions to this court caused the Court to consider permitting substantially less than it eventually awarded in fees. FACTS: Defendants operate a retirement community for those age 62 and over. On July 12, 2021, plaintiff filed this PAGA Complaint, alleging that defendants failed to pay overtime and minimum wages, failed to provide compliant meal and rest periods and associate...

Excerpt: ...case involving some of the same issues and potential class members as this case. No classes have been certified in any related case. This case does not have a PAGA action, but the federal case and a related state case do. This is a question of permissive intervention. With regard to permissive intervention “the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been f...

Excerpt: ...6‐ 31) and Defendant's Knowledge of Similar Defects (RFPs 32‐37). Plaintiffs' motion asks for further responses to RFPs 17‐33, 36, and 37, though the motion does not engage in a great deal of differentiation. Plaintiffs leave out crucial details in their motion. First, they contend that on October 12, (all dates are in 2022) “Defendant failed to produce a single responsive document requested,” which appeared to apply to all 37 requests....

Excerpt: ...compliant meal and rest periods and associated premiums, failed to pay timely wages during employment and upon termination of employment, failed to provide complete and accurate itemized wage statements, failed to keep complete and accurate payroll records, and failed to reimburse necessary business‐related expenses and costs. PROCEDURAL POSTURE: On March 29, 2022, the parties participated in a mediation, and the parties ultimately reached a se...

Excerpt: ...led for divorce in the Family Law case in April, 2017. A default was taken and set aside, and litigation commenced in earnest in April, 2019. After substantial litigation the parties, their attorneys, and the family law judge signed a stipulation and order which said, in part, as follows: With regard to the real property located at [address], Respondent does not seek any remedies in this action, under the California Family Code, and does not seek...

Excerpt: ...e assertion that on November 15, 2021 the matter was set for a case management conference on May 24, 2022, which is inaccurate. 4. The assertion that “on May 13, 2022, a Request to Continue the Case Management Conference was made, due to [an] ongoing trial.” This appears disingenuous. Counsel is and was aware he did not pay filing fees for that request and it was not clerically processed on those grounds. This does not make the Court optimist...

Excerpt: ...intiff, and administration costs of $25,000.00 to the settlement administrator Simpluris, Inc., thus leaving a net settlement fund of $1,237,209.00. The average estimated individual settlement share is $337.26, and the highest estimated individual settlement share is $9,185.13. Simpluris Declaration, paragraph 10. The settlement approval in class action settlements requires three distinct steps: (1) Preliminary Approval of the proposed settlement...

Excerpt: ...sition to the Motion for Summary Judgment/Adjudication: 1. Lewis declaration, paragraph 25: Sustained, hearsay. 2. Lewis declaration, paragraph 27: Overruled, relevant to the effect on the listener. 3. Price declaration, paragraph 22: Sustained, hearsay. 4. Price declaration, paragraph 24: Overruled, relevant to the effect on the listener. 5. Sustained. 6. Sustained. 7. Overruled. The Court will consider the late‐filed declaration. This case wa...

Excerpt: ...embers so noticed. Based on the Petition and the Declaration of Ron Clark, the Court has weighed all the factors required to grant the relief requested and finds the revised CC&R's to be reasonable and all factors sufficiently met. (Civ. Code, § 4275(c)(1)‐(6)) In Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, the Court found that the predecessor statute to section 4275 was designed to assist homeowners' associat...

Excerpt: ...erplate is one non‐frivolous contention: that the declarations contain insufficient foundational basis for the attached exhibits. However, the declarants aver familiarity with the subjects of the declarations, including how the systems work, which is sufficient. Plaintiff alleges that she would not have entered the arbitration agreement with Lyft had she known, and does not think that she actually did. To the contrary, Lyft provides evidence th...

Excerpt: .... Price declaration, paragraph 22: Sustained, hearsay. 4. Price declaration, paragraph 24: Overruled, relevant to the effect on the listener. 5. Sustained. 6. Sustained. 7. Overruled. The Court will consider the late‐filed declaration. This case was originally filed in Fresno County in November, 2018. A First Amended Complaint was filed on February 26, 2020. In this case, Plaintiffs Lewis and Price allege that they worked for Defendant through ...

Excerpt: ...rt or through deliberate avoidance of service on Defendant's part. Plaintiff's late‐filed opposition contains no admissible evidence that Defendant's address was as asserted. Plaintiff's counsel declares that an investigator did research, but does not identify the investigator or the research. If it did include that information, it would be hearsay. Plaintiff's assertion that unrepresented parties should be treated the same as represented parti...

Excerpt: ...e service payment of $10,000.00. The average payment to participating class members is estimated to be $4,603.25, with the highest payment being $9,830.46. The attorney's fees of $166,666.67 are reasonable. This represents one third of the gross settlement amount, which is a standard benchmark in California for class action settlements. Chavez v. Netflix, Inc. (2008) 162 Cal. App. 4th 43, 66, fn. 11. One‐third of the total settlement amount is ...

Excerpt: ... considered sanctioning Plaintiff's counsel for its efforts to put before this court the unpublished rulings from other trial courts in clear violation of Rule of Court 8.1115. The Court has an affirmative obligation to deter rules violations and will be dismayed if this effort to do so is unheeded. (See TBG Ins. Service Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 447, fn2.) The Court has authority to determine arbitrability. (Sargon Enter...

Excerpt: ...o not apply to page length restrictions, that pages 5‐21 are a one‐page overage. In fact, they are a two‐page overage, as 17 pages is two pages more than 15 pages. I note that simply subtracting the page numbers – like subtracting days or other countable numbers – gives an answer that is one off. I intend the sanction as educational. I would surely have granted additional pages had I been asked to do so. Flouting the Rules of Court is n...

Excerpt: ... GRANTED, and unopposed. Motions (a) – (b): The Court finds that each motion was properly noticed and timely served, that no opposition was filed by Plaintiff and that no responses were timely served by Plaintiff. Accordingly, Plaintiff is ordered to serve complete and verified responses, without objections, within fifteen (15) days of this Order. Motion (c): The Court finds that this motion was properly noticed and timely served, that no oppos...

Excerpt: ...tigate matters which pertain to the underlying Alameda County claims. Specifically, Intervenor cannot have a trial of any sort in this county in order to recover as a state representative under PAGA. This Court cannot – and will not – rule on those claims, or take any action which purports to interfere with Alameda County's jurisdiction. ...

Excerpt: ...Chowdhury, which outlines a rule for out‐of‐ commission stoplights. In this case, there was a power outage whose breadth is disputed, but there is no means. Plaintiff has the burden to identify new facts that would cure the defect. The Opposition alleges that the only traffic signals that were inoperable were at the subject intersection but power was working for the other lights in the neighborhood and houses. Regardless of the accuracy of th...

Excerpt: ...eacted negatively because he has had difficult experiences with people who represent themselves. Petitioner goes to great lengths to disparage counsel both in his reply brief and in e‐mails. None of this assists. The Court does not have jurisdiction in this case to stop a party from being represented by the attorney of its choice. Petitioner is strongly advised in the future to make an administrative complaint about an attorney or not rather th...

Excerpt: ...ndants and each of them failed to verbally discuss the risks of the left eye surgery with Plaintiff, or otherwise clearly communicate and/or ensure that Plaintiff understood the associated risks, benefits, and alternatives.” Plaintiff suggests this is sufficient, but it does not follow that Plaintiff was not given a clear written waiver which Plaintiff understood and agreed to. Plaintiff avers that he did not understand what was occurring, but ...

Excerpt: ...purposes of ruling. Given that there is no evidence, the Court cannot entertain a Motion for Reconsideration. The Represented Defendants allege that they have information indicating the subject emails were available to Plaintiff prior to the last hearing, and that they are in an exhibit. The Court does not have the exhibit. The Court notes that the declaration and motion are legally and factually frivolous, and appear to be done for the purposes ...

Excerpt: ...nce that a valid arbitration agreement exists. The arbitration agreement was signed electronically on November 5, 2020. Ms. Brummell's Declaration indicates it was signed when Gloria Kelley was admitted to the facility. However, the Complaint and Gilliam declaration indicate the admission was actually on October 29, 2020. Michael Kelley denies signing the document. Assuming the document was signed by Michael Kelley and that Ms. Brummell's declara...

Excerpt: ... but want to delay a permanent injunction based on attempts at compliance. At this stage, whether the attempts at compliance are in good faith or not, they simply have not complied with a court order that they stipulated to. Notably, Defendants refused inspections, did not file timely applications, and did not meet all of the conditions of the order. Defendants' refusal to allow inspections was a direct violation of the order. For example, after ...

Excerpt: ...ntrols. Defendant suggests the Family Law Court executed a void order. As Kerns notes, I have no authority to reach the issue. The order in place is absolutely binding on me, and I cannot reach a contrary conclusion. If jurisdiction were only by stipulation, I would be free to make determinations, but in this case jurisdiction has been conferred by court order. The Court continues the case to give Defendant the opportunity to pursue whatever reme...

Excerpt: ...0, 21, 23, and 26 are OVERRULED. Objections 7, 8, 9, 15, 16, 18, 19, 22, 24, 25, 27, 28, 29, 30, and 31 are SUSTAINED. Notably, Defendant's objections to the attempt to bootstrap this case and the Wright case are granted. The Court will not consider the Trial Brief in the Wright matter, as does not meet the requirements for a judicial admission. A statement made to gain an advantage in a prior case cannot be walked back later; here Defendant made...

Excerpt: ...r's Request for Judicial Notice of a 2012 declaration is DENIED. First of all, the Court orders the parties to stop the ad hominem attacks. Intervenor wants the Court to take judicial notice of a press release critical of Plaintiff's firm. Plaintiff notes, entirely correctly, that this is grossly inappropriate, and follow up by asking for judicial notice of a 2012 declaration which may well be critical of Intervenor's lawyers but which the Court ...

Excerpt: ...isqualify Attorney Thomas E Lewis; d) Defendant Stanislaus Regional Housing Authority, Barbara S Kauss, Bernadette Reynolds and Mildred C Collings' Demurrer and Motion to Strike to Plaintiffs' Second Amended Complaint for Damages – a) STRICKEN. The purported removal was void. The Court sets aside the clerical designation of removal; it was void ab initio. b) As no good cause has been shown, Plaintiff Magdaleno is held in contempt for violation ...

Excerpt: ...s unhelpful to the Court reaching a decision on the merits of the issues. In this case, the parties appear to agree that the Court must engage in a weighing test to make determinations on what should be released. Defendants' procedural objections as to a meet and confer and separate statement requirement are incorrect. As to the meet and confer effort, Code Civ. Proc. 1985.6(f)(1) relating to a motion to quash does not include any such requiremen...

Excerpt: ... appellate courts reaching different conclusions. Those cases, Turrieta v. Lyft and Moniz v. Adecco USA Inc., both appear carefully considered. For background, PAGA actions are a dispute between the state and the employer, with the aggrieved employee effectively deputized to pursue the case on behalf of the state. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4 th 348.) Turrieta v. Lyft (2021) 69 Cal. App. 5 th 955 (review grant...

Excerpt: ...ty as to the order of trials unhelpful. The U.S. Constitutional right to a jury trial and the California Constitutional right to a jury trial have been applied and interpreted differently. In California, there is a “preference for the trial of equitable issues before legal issues” which often produces a bench resolution that forecloses any legal claims. (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 156‐157; see also, Raedeke v. Gibraltar Sav...

Excerpt: ... pay‐by date. b) GRANTED, as modified, in the total amount of $75,000. Plaintiff seeks base fees of $91,548.50 plus costs of $1,449.27 for costs and fees incurred through February 28, 2022, plus anticipated fees and costs through the date of the instant hearing. The Civ. Proc. §998 Offer, however, limited the costs and fees through the date of the Offer, which was June 11, 2021. The Motion to Enforce is not opposed by the Defendants. Defendant...

Excerpt: ...e Court notes that even if this were not a wrongful death case, the allegations that Ms. Morgan drove “with a measurable amount of alcohol” in her system are insufficent. A measurable amount of alcohol could be 0.01%, which would not constitute the sort of behavior that merits punitive damages. ...

Excerpt: ...or negligence, fail to state facts sufficient to state a cause of action. Undue influence requires: i) the existence of a confidential or fiduciary relationship between the testator and the person alleged to have exerted undue influence; ii) active participation by such person in preparation or execution of the testamentary instrument; and iii) an undue benefit to such person or another person under the testamentary instrument thus procured. (Est...

Excerpt: ...ital, so how could the allegations have merit? But an MSJ may be granted on legal or factual findings that a reasonable party might contest. Further, in this case, much of Plaintiff's evidence was stricken for lack of authentication; it is not clear from the record before the Court that the case was plainly frivolous or completely without merit. If the motion to tax were reached, the Court has substantial concerns that the claims for some of thes...

Excerpt: ... that the green sludge was actually present; and 2. The maintenance of the property was, as a matter of law, adequate. While Defendant raises doubts about these allegations, they do not amount to a successful summary judgment claim. Preliminarily, Defendant's argument that there was no mud or muddy substance either on the ground or on the Plaintiff is contested sufficiently to defeat summary judgment. Defendant does not dispute that witness Navar...

Excerpt: ...cations since 2006 of Revenue and Taxation Code section 5151 are minor. Thus, the arguably conflicting language (The Revenue and Taxation Code's language says it should be used for money “refunded to a taxpayer for any reason whatsoever,” while the Civil Code discusses “a tax or fee claim against a public entity that results in a judgment,”) is resolved in favor of the Civil Code. Further, the specific language “that results in a judgme...

Excerpt: ...iance or cause any damages. The escrow agent reviewed the transaction and confirmed there was no error and escrow closed in February 2020. (Bldg. Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400: fraud without damage is not actionable.) Cross‐Defendant Sayedzada is not a party to any contract and therefore, specific performance is not a viable theory. Specific performance requires a breach of contract. (Real Est. Analytics, LLC v. ...

Excerpt: ...with Plaintiff's Second Amended Complaint, but unfortunately, the parties came to an impasse.” Mr. Holland's declaration says there was a single, non‐substantive e ‐mail from Mr. Brar to which Mr. Holland responded he would confer. These allegations do not appear consistent. The Court requires either receiving a copy of the email or to have it read in Court. The Court cannot overrule or grant the demurrer based on failure to confer (Code Ci...

Excerpt: ... The reply brief starts, “Plaintiff's opposition to defendant's motion […] appears to be speaking to a complaint other than the one that was actually filed.” The reply brief is correct. The complaint alleges that they knew or should have known of the condition. It does not allege that Defendant actually knew of it. There are no specific facts provided that indicate any specific individual person was aware of the issues. The conclusions of t...

Excerpt: ...to obtain counsel, Defendant was not represented by counsel until recently. Demurrers should be filed within 30 days with an extension of 30 days available (Code Civ. Proc. Section 430.40). The Court may still hear it if there is good cause to overlook the late filing (Jackson v. Doe (2011) 192 Cal.App.4th 742), but this filing is about 18 months late and the fault of the defense. Defendant is ordered to file an answer within 10 days or be subjec...

Excerpt: ...otor vehicle accident on October 19, 2016 at a round‐about in Escalon. Plaintiff Kim Worcester was sleeping as a passenger in a 2003 Chevrolet Silverado truck. Defendant Tisa Conner's son, Nathan Conner, was driving a 2002 Chevrolet Tahoe. Defendant Tisa Conner owned and insured the 2002 Tahoe driven by Mr. Conner. (Undisputed Material Fact [hereinafter, “UMF”] # 4; Declaration of Tisa Conner [hereinafter, “Conner Decl.”] at ¶ 2.) Mr. ...

Excerpt: ...uses of Action for slander of title and quiet title require that the plaintiff own or have an interest in the property but the foreclosure has already occurred. These defects cannot be cured, and therefore, the Demurrer is SUSTAINED, without leave to amend, as to the Third, Fifth, Seventh, and Eighth Causes of Action. The First Cause of Action (Fraud), Second Cause of Action (Unconscionable Contract), Fourth Cause of Action (Wrongful Foreclosure)...

Excerpt: ... 893, 938.) A complaint must be read as a whole. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for failing to state facts sufficient to constitute a cause of action must be to the entire cause of action, not specific factual allegations. (Code of Civ. Proc. §430.10(e).) The eight allegations identified in the demurrer as supporting the nuisance claim, when read as a whole, sufficiently state the elements for a private nuisance claim. (...

Excerpt: ...r applied for a late claim or that the Board ever took action of Petitioner's application for late claim, and therefore the jurisdictional requirement for this Petition has not been met. (Gov't. Code 946.6(b); Nguyen v. Los Angeles Cty. Harbor/UCLA Medical Ctr. (1992) 8 Cal.App.4th 729, 732.) However, an application to file a late claim would relate back to the original claim and deadlines commensurate therewith. (Gov't. Claim 910.6(a); Sofranek ...

Excerpt: ...ourt will issue sanctions under Code Civ. Proc. section 177.5 for failing to follow the Court's direct orders. If it was filed, the Court anticipates a clear explanation of how this motion was permissible given that a ruling had already been made. The Court is likely to issue a case management order requiring leave of court to file any further section 128.7 motions by either side, and will accept argument on whether it should do so. Some backgrou...

Excerpt: ...'s First Amended Cross‐Complaint – DENIED, in part; GRANTED, without leave to amend, in part. a) A complaint may allege multiple theories and the same facts can support different causes of action. (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501.) The Demurrer is OVERRULED as to the Second and Third Causes of Action being duplicative of the First Cause of Action. (See, e.g., Carma Devs. (Cal.), Inc. v. Marathon Dev. California,...

Excerpt: ....) A complaint must be read as a whole. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer for failing to state facts sufficient to constitute a cause of action must be to the entire cause of action, not specific factual allegations. (Code of Civ. Proc. §430.10(e).) The eight allegations identified in the demurrer as supporting the nuisance claim, when read as a whole, sufficiently state the elements for a private nuisance claim. (San Diego...

Excerpt: ...n part. a) The Motion to Amend was filed December 22, 2021, which is untimely for not being filed/served at least 16 court days before the hearing date in violation of Code of Civ. Proc. Section 1005(b). b) Preliminarily, Plaintiff's objections to counsel representing the individual employees is not supported by evidence and a separate motion would be required to recuse the attorney. The first ten causes of action merely identify parties and fact...

Excerpt: ...laim, given the timing of various discussions. Thus, we reach the merits. Pub. Res. Code section 21167.6(e)(7) and (10) provide: (e) The record of proceedings shall include, but is not limited to, all of the following items: (7) All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project. (10) Any other written materials relevan...

Excerpt: ...e allegations of the Complaint to create a triable issue of fact. College Hospital, Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 720, fn.7. 2. Exhibit D – various objections – OVERRULED. Exhibit D was provided as a response to Form Interrogatory 201.1 and as such is admissible under Code Civ. Pro. section 437c. 3. and 4. Exhibits F and H—lacks foundation/authentication—SUSTAINED. The attorney cannot provide the foundation for the documents. Cod...

Excerpt: ... already at issue in this case, and do not open up a wide range of other issues. Whether the allegations can ultimately be proven is not a relevant inquiry for whether the amendment is proper. The Court will sign the proposed order submitted with the moving papers. b) The moving party must establish good cause for the delay in filing. The moving parties previously attempted to file this motion but it was not timely served. It is not clear from th...

Excerpt: ... issue of standing for this purpose. In fact, the word “standing” does not appear in La Jolla Grp. II. This is unhelpful to the Court. Furthermore, even if Defendant's assertion that Plaintiff requires ownership or possessory interest is correct, the Complaint suggests, at a minimum, that Plaintiff has possessory interest. Therefore, the Motion for Judgment on the Pleadings as to the First Cause of Action on the issue of standing is DENIED. T...

Excerpt: ... the trustee's sale is final, but subsequent case Melendrez v. D&I Investment Inc. (2017) 127 Cal.App.4 th 1238 clarifies that the borrowers' challenge was not always precluded – the fundamental issue of whether the buyer was a bona fide purchaser is subject to litigation with an eviction case even after a trustee's sale which appears on its face to be valid. But, in this case, there is no allegation that E5 is not a bona fide purchaser. While ...

Excerpt: ...n because she was late. People v. Gutierrez was originally set in Department 23 at 9 a.m. on August 2, 2021. The Court reassigned Gutierrez to itself as the later‐filed related case under California Rule of Court 3.300(h). Because it was set for 9 a.m., the court retained that time but moved the case from Department 23 to Department 21. The Court wanted to keep the cases together. DDA Cramton filed a declaration to the OSC re: sanctions regardi...

Excerpt: ... constitute a defense to the complaint. (Ibid; Compl., ¶¶ CC‐1, CC‐2.) Based upon defendant Martha Q. Baeza's admission in her answer, the Court also finds that the defect cannot be cured by amendment, and defendant has not met her burden of showing otherwise. (Pang v. Beverly Hosp., Inc. (2000) 79 Cal.App.4th 986, 989–990; Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636; see Blank, supra, 39 Cal.3d at p. 318; Answer, ¶ 3(b).) The no...

Excerpt: ... and prevailing rate in the community. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132; Horsford v. Bd. of Trustees of California State Univ. (2005) 132 Cal.App.4th 359, 394; Serrano v. Unruh (1982) 32 Cal.3d 621, 643; Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal. App. 4th 140, 154.) The declarations in this case were detailed and demonstrate the hours claimed were reasonably incurred and substantially contributed to the ultimate result. T...

Excerpt: ...upport of the Reply only support $504.13 in jury fees and $2,772.60 in deposition costs. There is also a duplicate charge of $248.00 for deposition costs. Therefore, $14.81 is taxed as to the Jury Fees and $566.15 is taxed as to the Deposition Costs. The Motion is GRANTED as to the expert witness fees. The Cal. Civ. Pro. 998‐offer was jointly made to both plaintiffs without any apportionment and required both plaintiffs to accept. Therefore, it...

Excerpt: ...icting factual allegations in a challenged pleading. (Alameda County Waste Mangement Authority v. Waste Connections US, Inc. (2021) 67 Cal.App.5 th 1162.) Dismissal is mandatory unless a statutory exception applies, but such exceptions are strictly construed against the plaintiff. (Cal. Civ. Pro. 583.240; Inversiones Papaluchi S.A.S. v. Sup. Ct. (2018) 20 Cal.App.5th 1055, 1062.) In this case, Plaintiff did not exercise due diligence. This case w...

Excerpt: ...nt of the court's tentative ruling. The court may adopt, modify or reject the tentative ruling after considering the parties' oral arguments. The tentative ruling will have no legal effect unless adopted by the court. No notice of intent to appear is required. If you wish to submit on the tentative decision, you may send a telefax to Judge Borrell's secretary, Hellmi McIntyre, at 805‐477‐ 5894, stating that you submit on the tentative. A copy...

Excerpt: ...ng Code Civ. Proc. section 1005. Further, moving parties failed to comply with the safe harbor provisions and failed to timely file and serve the Motion. CCP 128.7(c)(1) describes the 21‐day safe harbor as precluding the filing of the motion until at least 21 days has passed since service of the motion. Therefore, the October 8, 2021 correspondence threatening a motion does not constitute service of the motion and did not trigger the 21‐day s...

Excerpt: ...s have sent emails back and forth, the efforts lack the sort of efforts at a good faith resolution called for by Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1439. “[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id.) Reaching the merits of the issues: Interrogatories 9‐11: These interrogatories seek the identity of employees that sought and/or received reimbursement for t...

Excerpt: ...ar to be in that exhibit. The Court notes that it is bound by Judge Sandhu's prior rulings. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4 th 368). On February 23, 2021, the Court granted the anti‐SLAPP Motion as to the conspiracy claim and, because a First Amended Cross‐Complaint had already been filed, denied the general Motion to Strike as moot. Because the facts proposed in a Second Amended Cross‐Compalint, while more detailed, essential...

Excerpt: ...rbitration clause complies with the requirements of Health and Safety Code section 1363.1. The arbitration clause binds the enrollees and their heirs to the arbitration clause as long as the arbitration clause was disseminated to enrollees and prospective enrollees. (Medeiros v. Sup. Ct. (2007) 146 Cal.App.4th 1008, 1017; Kuntz v. Kaiser Found. Hosp. (2021) 62 Cal.App.5th 1135, 277 Cal.Rptr.3d 271, 281‐282; Ruiz v. Podolosky (2010) 50 Cal.4th 8...

Excerpt: ...same as previously deposed because a PMK is not a deposition of the same person, but rather, a deposition of the non‐natural person. (Cal. Civ. Pro. 2025.230.) Regardless of how long the depositions of the individuals took, there is no time limit on a PMK deposition. (Cal. Civ. Pro. 2025.290(b)(5).) Additionally, even though the same documents were requested and produced during written discovery, they are authorized to be re‐requested under t...

Excerpt: ...similar pain for at least two years but he presented on May 27, 2018 because the pain was different and severe. (UMF #3.) Dr. Kanu performed a physical exam and ordered an ultrasound. (UMF ## 4‐6.) There was decreased but not absent vascularity and the radiologist noted it was “concerning for testicular torsion.” (UMF ##8‐9.) Dr. Kanu's report notes he considered epididymitis but his overall clinical impression was a right testicular tors...

Excerpt: ... Plaintiff wishes to continue this hearing, the Court will grant such a request. Unlike most discovery disputes, the Court cannot ignore evidence supporting privileges related to the attorney‐client relationship. The Court has received five separate exhibits under seal. The Court finds that Exhibit E is privileged as it appears responsive to attorney input. The July 24, 2018 text message chain between Cortnie Carmack, Mercedes Carter, and JB Ma...

Excerpt: ...r on May 15, 2020. (FAC at ¶¶ 6, 42.) Within one month of the purchase, it started to have “major powertrain defects” which led to a transmission replacement. (FAC at ¶¶ 8, 43.) The vehicle continued to have problems and by February 2021, it had been out of service for more than 30 days. While the First Amended Complaint also refers to a separate service and repair agreement, it alleges that these defects, replacement, and failure to repa...

Excerpt: ...ng benefits from the decedent. After the decedent suffered a stroke and was hospitalized, Defendant allegedly took property as husband and wife with a right of survivorship. (First Amended Complaint at Paragraphs 40 and 44.) Defendant allegedly caused real property in an irrevocable trust to be sold and then allegedly appropriated the funds. (First Amended Complaint at Paragraph 49.) The First Amended Complaint also alleges that Defendant benefit...

Excerpt: ...here was a settlement agreement in place and it was being completed. The current motion and sworn declaration claim that Defendant was in breach of the contract and that the $2,000 paid on June 7, 2021 – one day before the declaration – was correctly applied to the full amount due. These assertions seem to be at odds with each other. The Court anticipates asking clarifying questions and requires counsel appearing for Plaintiff to be able to a...

Excerpt: ...ity. The Court is unable to replicate Plaintiff's calculations as to the taxable amount claimed in total matching the taxable amount claimed in the individual claims. Defendant's zeal in pointing the amount unchallenged leads the Court to suspect it also could not replicate the math. In their opposition, Defendant filed a prior motion to tax costs in another case filed by Plaintiff's Counsel. The Court strikes this portion of the pleading. It may...

Excerpt: ...enter [“Emanuel”] in Turlock for a complaint of right testicular pain. (Undisputed Material Fact [“UMF”] #2.) Plaintiff reported intermittent similar pain for at least two years but he presented on May 27, 2018 because the pain was different and severe. (UMF #3.) Dr. Kanu performed a physical exam and ordered an ultrasound. (UMF ## 4‐6.) There was decreased but not absent vascularity and the radiologist noted it was “concerning for te...

Excerpt: ...tters properly pleaded as true. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) The allegations are liberally construed and taken as a whole. (Cal. Civ. Pro. §452; Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 98.) The demurrer, then, tests the sufficiency of the allegations as a matter of law. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) Turning to the operative allegations, the First Amended Complaint identifies Defendant Greff as De...

Excerpt: ...ts made representative claims supporting an agency relationship after service. b) DENIED, without prejudice. The declaration has now been resubmitted with an appropriate signature block (a well‐established requirement), but the source of the underlying facts leading to belief is not provided. Complaints based on information and belief are permitted when the basis of the information and belief is clearly provided. (See Gomes v. Countrywide Home ...

Excerpt: ...opinions of counsel? 3. Does the deposition transcript of Cortnie Carmack establish whether some or all of her emails are privileged or not privileged? 4. Do lawyers review all of the items that are alleged to be prepared for the legal department? The Court may have follow‐up questions. To the extent that the privilege log and further filings do not adequately clarify the facts, the court lacks authority to order production. (See Catalina Islan...

Excerpt: ...) 162 Cal.App.4th 343, 364.) Since the existence of the verified complaint and cross‐complaint in the consolidated action is irrelevant to the demurrer to the First Amended Complaint, the Court declines to take judicial notice. The Court finds that while the First Amended Complaint alleges various medical and debilitating conditions, it fails to sufficiently allege facts that Defendant Credit Union knew or should have known of those medical or ...

Excerpt: ...to provide the contracted insurance coverage. (First Amended Cross‐Complaint [“FACC”] at ¶¶ 40, 48.) While Cross‐Complainants paid all premiums as they became due (FACC at ¶ 49), they were actually issued a “Ghost Policy,” which Cross‐Complainants define as “a term used to describe a sham insurance policy that is not backed by reserve funds as required by law.” (FACC at ¶ 39, 11:6‐7.) Cross‐Complainants allege it contrac...

Excerpt: ... Oppose Cross‐Defendants' Motion for Summary Judgment/Adjudication on the Cross‐Complaint There are several claims in the briefing as to why Plaintiff should have standing. Doctor's Medical Center of Modesto, Inc. (DMC) argues: 1. The language of the statute permits intervention of this sort generally; and 2. Plaintiff's rights will be impaired if he is not allowed to oppose the MSJ. Plaintiff does not make the statutory construction argument...

Excerpt: ...ed by the incomplete effort to meet and confer. Plaintiff is correct that this need not be dispositive, but the failure to engage in the process in a meaningful way does not comport with best practice. The Court anticipates that the parties will discuss and resolve or narrow the issues prior to any re‐filing. 2. DENIED as untimely. A party has 45 days to bring a Motion to Compel Further Responses, unless an extension has been agreed upon by the...

Excerpt: ...e extent the facts alleged in the complaint conflict with the facts contained in the exhibits attached to the complaint, the facts contained within the exhibits control. (Plastering v. Richmond Am. Homes (2007) 153 Cal.App.4th 659, 665.) The facts alleged in the First Amended Complaint do not contradict those identified in Exhibit D. For example, it is not expressly stated that the permanent structures alleged in Paragraph 19 are limited to the a...