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: ...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: ...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: ...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: ... 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: ...'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...