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