Excerpt: ...isputes when the writing was prepared and signed; (2) the writing drafted/signed was done in waste and under undue pressure from this Court to have a settlement inked by the following morning or be forced to go to trial; (3) defendants were relying upon oral repr esentations regarding additional terms to be added, but which never were; (4) defendants signed only the detached signature page, without the benefit of seeing the incomplete agreement ...

Excerpt: ...3.1332(c). As such, continuances are to be granted “only on an affirmative showing of good cause requiring the continuance.” Id. A motion for continuance is addressed to the sound discretion of the trial court. However, the trial judge must exercise this discreti on with due regard to all interests involved, “in an atmosphere of substantial justice.” Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395; in accord, Freeman v...

Excerpt: ...amount of law and motion: temporary restraining order, permanent injunction, RFA admissions (x2), compelling discovery (x4), summary judgment (x2), summary adjudication (x2), trial continuances (x2), demurrer (x3), and motion to strike (x4). Before the Court today is yet another demurrer and motion to strike by the HOA, directed at Trakhter's cross - complaint. The newest demurrer (filed 06/17/24) is virtually identical to the demurrer filed by...

Excerpt: ...“deposit, ” and certain nonparties to the action would sign off on a release agreement. By 11/01/23, it would appear that a complete, fully -executed release agreement was furnished. However, something about the two non- party signatures on the release agreement lef t defendants uneasy. In fact, they were so concerned they hired a Board -Certified Forensic Document Examiner (Ms. Patricia Fisher) to opine that the signatures on the release ag...

Excerpt: ...8. Def endant did not appear here either, resulting in the entry of that arbitration award as a Judgment on 10/27/23. It was only after that Judgment was entered that Defendant decided he would like to participate. On 02/05/24, Defendant filed a motion to set as ide the arbitration award on the singular basis that this Court “lacked subject matter jurisdiction” because jurisdiction had previously been reserved in the family law case. This Co...

Excerpt: ...this day is plaintiff demurrer and motion to strike, directed at the whole of the cross- complaint and six of the seven causes of action contained therein. There is no opposition filed to either the demurrer or the motion to strike. Demurrer A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126. The challenge is limited to the “four cor...

Excerpt: ...ion filed to the motion. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. CCP §473(a)(1). Pursuant to California Rules of Court, Rule 3.1324, the moving party must (a) specify in the movin g papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and (b) include with the moving papers a declaration specifying the effect of the a...

Excerpt: ...id litt le heed to a nondescript reference in the preliminary title report to “mobile home or manufactured housing unit and appurtenances, if any, located on said land.” o Sometime after closing, plaintiff discovered that the residence thereon was in fact a double -wide 1,056 sq ft mobile home with 1,644 sq ft of “unpermitted” improvements thereto. More critically, plaintiff discovered that the 1,056 sq ft mobile home was not actually own...

Excerpt: ...ould pay the HOA $10,000 within 60 days; would sign a nondisclosure agreement; would establish her ownership rights, and would abide by the CC&Rs going forward. Counsel for the HOA present undisputed evidence that defendant has failed to honor any of her existing obligations under the terms of the settlement agreement. Defendant does not dispute making the settlement, and only implies an inability to comply. Pursuant to CCP §664.6, if parties to...

Excerpt: ...r court is only au thorized to affirm final arbitration awards, as contrasted with interim awards of the nature described herein. See CCP §1283.4; Taska v. RealReal, Inc. (2022) 85 Cal.App.5th 1, 9. Although class action suits require a two -step process for affirming settl ements in general, neither party has explained how that process reestablishes interim jurisdiction for a superior court. Second, a superior court may only affirm an “award...

Excerpt: ...ners who openly reject the very CC&Rs (and governing documents) they are bound to comply with pose an understandable risk not only to the HOA, but to every abiding resident in the community. All suffer when one goes rogue, which is why uniform comp liance with these governing documents is so fundamental to the ordinary operation of planned communities. People make choices to live in planned communities, or not. Defendant has been provided a numbe...

Excerpt: ...this day is plaintiff demurrer and motion to strike, directed at the whole of the cross -complaint and six of the seven causes of action contained therein. There is no opposition filed to either the demurrer or the motion to strike. Demurrer A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126. The challenge is limited to the “four cor...

Excerpt: ...ndant”) a 1974 F ord Bronco for $119,997.00. According to plaintiff, he made the sizable acquisition based entirely on defendant's express representations made online (via Ebay Motors) regarding the refurbished condition thereof. There is no indication of there having be en any pre- purchase inspection or caveat emptor. On 06/17/22, plaintiff filed suit in Los Angeles County for damages resulting from alleged misrepresentations associated with...

Excerpt: ...8. Defe ndant did not appear here either, resulting in the entry of that arbitration award as a Judgment. It was only after that Judgment was entered (on 11/08/23) that Defendant decided he would like to participate in the proceedings. On 02/05/24, Defendant filed a motion to set aside the arbitration award on the singular basis that this Court “lacked subject matter jurisdiction” b ecause jurisdiction had previously been reserved in the fam...

Excerpt: ... initial responses. The Special Interrogatories at issues are:  No. 16: identify the beneficial expenditures made with the Umpqua $180,378.60  No. 17: identify all other expenditures made with the Umpqua $180,378.60 The purpose of these interrogatories is akin to an accounting from defendant of the money spent following the 03/03/21 withdrawal of funds from the Umpqua Bank account held by Elsie Smith. Defendant's initial response to both w...

Excerpt: ...damage prayer based on malice or oppression. While there must be clear and convincing evidence to support an award of punitive damages, the same is not true at the pleading stage. On a motion to strike, courts do not look at evidence, just the complaint. Thus, plaintiffs are required only to plead specific facts which if true would permit a probability of satisfying the clear and convincing standard of proof at trial. See, e.g., Collins v. Water...

Excerpt: ...s Court su stained defendant's demurrer to the original pleading, with 30 days leave to amend. Plaintiff did not, thereafter, file an amended pleading, but instead relied upon the unauthorized FAC she had filed the day prior. (Although defense counsel requested tha t the Minute Order specify adoption of the earlier FAC, defendant was ordered to give notice and failed to do so.) On 01/30/24, defendant filed a motion to strike the third cause of...

Excerpt: ...n the 5 - day p leading deadline, a defendant in an unlawful detainer action may file a motion to quash – which can be used to challenge any defect (procedural or substantive) which goes to the heart of the trial court's authority to exercise personal jurisdiction over th e defendant. See CCP §1167.410; CRC 3.1327; Stancil v. Superior Court (2021) 11 Cal.5th 381, 400- 401; Saberi v. Bakhtiari (1985) 169 Cal.App.3d 509, 517. Because of the...

Excerpt: ...ich require adva nce determination. No such stipulation having been filed; the hearing is evidently moot. Nevertheless, this Court notes for the benefit of the parties that different kinds of motions in limine call for different kinds of treatment. There are two types of motions in limine: evidentiary, and dispositive. For the former, the purpose is to preclude the presentation of evidence deemed inadmissible and/or prejudicial without having t...

Excerpt: ...agreed to purchase APN 034 -031047 – a reasonably modern 2,000 sq ft home on a 13 -acre parcel near Flume Road. The details are imprecise, but apparently plaintiff agreed to be personally responsible for the commissions due to the listing agent, and agreed to giv e that agent a secured note against the property for a portion of that commission. On 11/16/23, the defendant caused to be served upon plaintiff a set of RFAs. She failed to serve resp...

Excerpt: ...is of the contract and the burdens of proof is required. On a motion to compel arbitration under CCP §1281 et seq, the moving party has the initial burden of demonstrating by a preponderance of the evidence that the parties have indeed agreed to resolve the pending dispute by way of arbitration. The existence of such an agreement is determined under standard rules of contract interpretation. See Engalla v. Permanente Medical Group, Inc. (1997) 1...

Excerpt: ...te in the property (in this case a mobile home in Jamestown). The property was inventoried as decedent's primary intestate asset (PR12032). Defendant is the decedent's son, and personal representative of her estate. Defendant sought to have plaintiffs evicted from the property (see CVL64760) so that the property could be sold to cover decedent's sizable debts. Both the Probate and the Unlawful Detainer actions are awaiting resolution of this civi...

Excerpt: ... of it s first cause of action for partition; 2) Monetary sanctions by LBG Trust regarding certain affirmative defenses set forth in Darryl's verified answer filed 08/29/23; 3) Summary adjudication by LBG Trust in favor of Darryl's fourth cause of action in his c ross-complaint; 4) Summary adjudication by Richard for adjudication on Darryl's cross -complaint. The salient facts are as follows:   Richard Sr. had done well for himself in li...

Excerpt: ...otion for provisional relief in the form of a writ of possession. Plaintiff has effectuated service of the summons upon Roger, and alleges to have subserved Regina (albeit in the WalMart parking lot), but has yet to secure any kind of service upon Bryce Bamber. Th e motion for a writ of attachment does not include a completed proof of service (see CCP §512.020), so as far as this Court can tell Bamber has no notice of this lawsuit (let alone of ...

Excerpt: ...e subject- matter jurisdiction, it must appear from the veriÞed pleading that petitioner is entitled to “a declaration of his or her rights or duties with respect to another … including a determination of any question of construction or validity arising” thereunder. CCP §1060. Petitioner here contends that he has a dispute with the Italian Consulate General regarding his application for Italian citizenship, and that he seeks an order “t...