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Excerpt: ...ense at the summary adjudication stage, plaintiff must first make a prima facie showing sufficient to support his position (aka, burden of production) that: (1) there are no triable issues of material fact relating to the affirmative defense, and (2) the affirmative defense fails either because the affirmative defense cannot be established or because the affirmative defense has no bearing on the claims asserted. If plaintiff meets that burden of ...

Excerpt: ...endant from making unauthorized alterations and Dept. 1 Civil Law and Motion Tentative Rulings for Friday, March 3, 2023 at 8:30 a.m. If you wish to appear for oral argument, you must so notify the Court at (209) 533-6633, and all other parties by 3:00 p.m. on the court day preceding the hearing, consistent with CRC 3.1308. The tentative ruling will become the ruling of the Court if notice for oral argument has not been provided. Page 6 of 7 impr...

Excerpt: ...lement of a cause of action of such quantum and degree as would require a reasonable trier of fact to find more likely than not. Although plaintiff no longer needs to also negate affirmative defenses as party of its initial burden, if defendant relies on affirmative defenses in opposing the motion, plaintiff cannot prevail on the motion without addressing the defense as well. CCP § 437c(p)(1); Advent, Inc. v. National Union Fire Ins. Co. of Pitt...

Excerpt: ...is necessary to revisit the origin of the hostilities. Pertinent Background Facts The dispute seemingly began on 02/21/09 when the Bucksens – who live at 18900 Horizon Court in Tuolumne – parked a vehicle in the center of the cul-de-sac. The Veras asked the Bucksens to reposition the vehicle to the curb. When cooperation was not forthcoming, the Veras called the police. Over the next few months, there were seven (7) calls to the Sheriff's Dep...

Excerpt: ...nt property loss to both. Before the Court this day is a demurrer by PG&E to the operative pleading, which contains a single cause of action for breach of contract (no claim for negligence). The matter cannot proceed this day for two reasons. First, pursuant to CCP §430.41, defense counsel was required to conduct a good faith meet and confer with both plaintiffs prior to filing the demurrer, and the declaration accompanying the demurrer only ref...

Excerpt: ...the residence used by defendant was in fact his. The decision was issued in the form of a Court Judgment on 11/22/22, and served on the parties by the court clerk. For the parties' edification, the original Court Judgment was never entered. Both parties appear to be in agreement that the Court Judgment must be construed as a tentative statement of decision pursuant to CCP §632 and CRC 3.1590. Yes and no. Although trial courts are not required to...

Excerpt: ...ereinafter “defendant”) secured a loan in the amount of $25,000 from plaintiff Goldman Sachs Bank USA. The Loan Agreement, which purports to carry defendant's electronic signature, provides that the loan is subject to an APR of 13.99%, and was to be repaid over the course of four years (at $683.03/month for 48 months). According to plaintiff, defendant made most of the monthly payments for close to three years, but then unceremoniously stoppe...

Excerpt: ... case has some relation to CV64812, CV64813, and CV64908. Although the writ petition herein was previously set for hearing, the substantive merits of this special proceeding will have to wait. On 10/31/22, respondents filed a motion to have petitioner declared a vexatious litigant. Once such a motion is filed, “the entirety of the litigation is stayed” until 10 days after the vexatious litigant motion is resolved. See CCP §391.6; Hanna v. Li...

Excerpt: ...renced civil harassment restraining order cases without first ruling on petitioner's motions to quash, and without ever effectively securing petitioner's consent to proceed as a temporary judge. A commissioner is empowered only to perform subordinate judicial duties, which do not include issuing civil restraining orders. See Cal. Const., art. VI, § 22; CCP §259; Foosadas v. Superior Court (2005) 130 Cal.App.4th 649, 654. However, the parties ca...

Excerpt: ...emedy designed to preserve the existing status quo until the dispute between the parties can be finally resolved on the merits. The status quo is defined as to the last actual peaceable, uncontested status which preceded the pending controversy. Daly v. San Bernardino County Bd. of Supervisors (2021) 11 Cal.5th 1030, 1052; People v. iMERGENT, Inc. (2009) 170 Cal.App.4th 333, 343. Preliminary injunctions are generally available to avoid waste (CCP...

Excerpt: ... original complaint filed 03/16/22. Defendant's motion to expunge must be GRANTED for a variety of reasons. First, as defendant notes, a Notice of Lis Pendens cannot be recorded by a self‐represented non‐lawyer without first securing court approval (CCP §405.21) – which plaintiff failed to secure. Second, a Notice of Lis Pendens cannot be recorded before it has been properly served on all interested persons (CCP §§ 405.22, 405.23) – an...

Excerpt: ...estment Company, Inc. and Century Land, LLC. On 06/14/20, plaintiff and defendant Dara Investment Company, Inc. (only) entered into a settled Payment Agreement in which defendant acknowledged a bona fide debt owing to plaintiff in the present amount of $29,139.00, and agreed to repay the debt over time as follows:  initial payment the next day of $4,358.00;  monthly payments of $1,878.00 through June of 2022;  final payment of remaining ...

Excerpt: ...was unaware of the motion. The POS accompanying the motion reflected mail‐service at a P.O. Box. Since defendant had yet to make a general appearance declaring a preferred address, delivery of motion papers must have been to her residence, which appears to be the same location where she was served personally served with the summons and mail‐served with this Court's OSC dtd 09/28/21. See CCP §§ 1011(b), 1014; CRC 1.21; in accord, Sweeting v....

Excerpt: ...ing on plaintiff's second MSA, presently set for 12/29/22. The ex parte application is based on the overarching claim that there is evidence essential to the motion which defendants are unable to timely secure due to no fault of their own. See CCP §437c(h). The application will be GRANTED. If it appears from the evidence submitted in opposition to a motion for summary judgment “that facts essential to justify opposition may exist but cannot, f...

Excerpt: ...led to establish any right to additional piece rate compensation (see 8:8‐9); 3. was not entitled to monetize unused sick time (see 9:6‐7); 4. was not owed additional unused vacation time (and was in fact overpaid, see 10:1‐3); 5. was entitled to $80 in work expenses, plus $10.10 in accrued interest (see 10:8‐16). Pursuant to Labor Code §98.2(a), within 10 days after service of notice of a Labor Commission award, either the employee or t...

Excerpt: ...y drove over plaintiff's foot. Scott did not see plaintiff, who was in the course and scope of his employment with Vito, kneeling down in the street to check the tire pressure on one of Vito's trucks. Plaintiff sued Brown and Sierra. Sierra, in turn, filed a cross‐complaint against plaintiff's employer Vito, claiming that Vito was partially liable for “allowing” plaintiff to be crouched down in dark clothes (a safety violation). Sierra also...

Excerpt: ...ior surgery was not resolving the pain, and (4) failed to timely diagnose/treat plaintiff's ongoing ailments (lumbar disc bulge and rotator cuff tear). Before the Court this day is a defense motion for summary judgment, directed at the whole of the First Amended Complaint filed 02/02/21. That pleading presently includes one cause of action for general negligence against defendant Smith, and another cause of action for general negligence against d...

Excerpt: ...which are judicially noticeable. The complaint is read as a whole. Material facts properly pleaded are assumed true, but contentions, deductions or conclusions of fact/law are not. In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim. CCP §§ 425.10(a), 459; in acc...

Excerpt: ...e hydroelectric projects went too far in imposing burdensome conditions. Before the Court this is day is the hearing on what the parties refer to as Phase 1. Water Certification Backdrop To lawfully operate a hydroelectric facility which either occupies federal land or is likely to discharge into waters suitable for interstate commerce, the operator of said facility must secure a license from federal authorities (which at present is the Federal E...

Excerpt: ...ond (wrongful death), Third (assault) and Fourth (battery) causes of action contained in the First Amended Cross‐Complaint, filed 06/22/22. The demurrer is supported by the required meet and confer effort. CCP §431.40. Russell first demurs to the Second (wrongful death), Third (assault) and Fourth (battery) causes of action contained in the First Amended Cross‐Complaint on the ground that the averments made “on information and belief” ar...

Excerpt: ...iffs were planning to file a First Amended Complaint, but the time to do so as a matter of right has expired. CCP §472. In order to state a viable cause of action for quiet title, a complaint must be verified and include: (a) a description of the property that is the subject of the action; (b) the title of the plaintiff as to which a determination under this chapter is sought and the basis of the title; (c) the adverse claims to the title of the...

Excerpt: ...ardino County. Although defendant may be correct that most of the witnesses are in Southern California, defendant did not frame a motion for transfer based on the convenience of witnesses. The Notice of Motion specifically provided that the motion was being made “on the ground that [Tuolumne] is not the proper court” for this case, ie CCP §397(a), not CCP §397(c). See 1:25‐26. The notice of motion must state with precision the nature of t...

Excerpt: ...judgment on the pleadings must demonstrate that (1) the complaint states facts sufficient to constitute a viable cause of action against the defendant and (2) the answer does not state facts sufficient to constitute a defense to that cause of action. CCP §438(c); see Templo v. State of California (2018) 24 Cal.App.5th 730, 735; Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321. The grounds for the motion must appear on face of pleadings (th...

Excerpt: ... – a Vito employee – experienced his right foot being driven over by Sierra's employee Scott Brown. Plaintiff sued Brown and Sierra. Sierra, in turn, filed a cross‐complaint against plaintiff's employer Vito, claiming that Vito was partially liable for “allowing” plaintiff to be crouched down in dark clothes (a safety violation). Sierra also claims that Vito owes Sierra (but apparently not Brown) a defense and indemnity pursuant to thei...