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...

Excerpt: ...ursuant to the terms of the settlement. The statute “was enacted to provide a summary procedure for speciÞcally enforcing a settlement contract without the need for a new lawsuit.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809. Not every settlement agreement is amenable to enforcement by way of this summary proceeding; sometimes, the parties will need to amend the operative pleading or Þle a new lawsuit. See Khavarian...

Excerpt: ...essing ten (10) sets of discovery. Since plaintiff is applying for ten distinct orders, there are ten motions here. See CCP 51003. Pursuant to Govt Code 570617, plaintiff must tender $60 for each motion, even if the motions are heard together. In other words, although commingled memoranda are permissible (and sometimes even preferable), counsel still had to tender ten filing fees. Only two $60 filing fees were tendered, which means only two order...

Excerpt: ...e country have seen similar lawsuits, with mixed results. Plaintiff alleges that he contracted Covid-19 three times: twice while housed at the California Correction Institution ("CCI"); and a third time while housed in dorm 26 at the Sierra Conservation Camp ("SCC"). Plaintiff does not seem to take issue in this litgation with the conditions at CCI, and instead contends that he was extra-susceptible to long-term Covid ailments when he arrived at ...

Excerpt: ...3. In the face of a Demurrer, plaintiff filed a First Amended Complaint. Plaintiff now seeks leave to file a Second Amended Complaint. Procedurally, to amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. CCP S The moving party must specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and include with the moving p...

Excerpt: ...g this moton requires a judicial leap of faith. To preserve the right to recover statutory legal fees as part of a default judgment, the amount sought must be set forth either in the operative pleading or in the Request for Entry of Default. In addition, the party seeking a default judgment must apply for all relief sought, including attorney fees and costs, in the application for entry of default. The court may not award such fees and/or costs i...

Excerpt: ... to the terms of the settlement. The statute "was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit." Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809. Not every settlement agreement is amenable to enforcement by way of this summary proceeding; sometimes, the parties will need to amend the operative pleading or file a new lawsuit. See Khavarian Enterprise...

Excerpt: ...t. The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleading 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, i...

Excerpt: ... opposition on file, nor any First Amended Complaint — even though plaintiff is well-aware of the pending demurrer and previously indicated an intent to oppose or render moot (see Plaintiff's CMC Statement Para. 15 and 19.b.). Since it is not this Court's practice to give a free informative treatise covering the salient issues when one party fails to oppose, the issues raised by the defense are sound. First, a promise to repay a loan via testam...

Excerpt: ...tuated personal service upon the defendant's agent for service of process (CT Corp). Plaintiff made no effort to move this forward. On 04/28/23, co-defendant James Brand filed a Chapter 7 Petition in the United States Bankruptcy Court. One week later, his attorney filed in this Court a Notce of Stay of Proceedings. On 06/22/23, plaintiff's counsel failed to appear at the MSC. The following day, he filed a declaration explaining that he "assumed t...

Excerpt: ...ant, as decedent's personal representative, sought to have plaintiff evicted from the property (see CVL54760). Both actions are awaiting resolution of this civil action. Before the Court today is defendant's motion for summary judgment, which has been on file with this Court since 10/06/23. No opposition was ever filed. However, on 12/11/23, plaintiffs filed what amounts to an ex parte request to continue the hearing on the motion based upon (1) ...

Excerpt: ...rial is supposed to begin on 02/25/24. Before the Court this day is an unopposed ex parte application to continue the current trial date, and all related dates associated therewith (MSC, discovery cut-off, etc.). In civil cases, "continuances of trials are disfavored." CRC 3.1332(c). A trial court "may grant a continuance only on an affirmative showing of good cause requiring the continuance." ld. A request to continue a trial must be supported b...

Excerpt: ...this day is a motion by plaintiff for "terminating sanctions" — though the motion itself is somewhat unclear. Plaintiff makes mention of defendant's repeated shortcomings in this case, but does not tether those to a specific statute permitting some kind of "terminating" sanction, or what that sancton would actually look like (strike her answer?). A historical review of the case is now warranted. Defendant attempted to make a first general appea...

Excerpt: ...s 13100 Hog Mountain Road (hereinafter "Parcel 1"); A 160-acre parcel identified as APN 065-030-002, and commonly referred to as 13130 Hog Mountain Road (hereinafter "Parcel 2"). Despite their magnificence, the topography on Hog Mountain was such that the only place anpne could easily develop the properties was at the "top of the hill." It also just so happened that the "top of the hill" was where the 87-acre Parcel 1 and the 160-acre Parcel 2 ca...

Excerpt: ...de 58386). Before the Court this day is defendant's second request to continue trial, which is currently set for 12/18/23. Plaintiff has recently added by Doe Amendment a new party to the case (Nate's tree Service), even though defendant was aware of that party some time ago (see LaForge Dec. dated 07/12/22). In civil cases, "continuances of trials are disfavored." CRC 3.1332(c). A trial court "may grant a continuance only on an affirmative showi...

Excerpt: ...rd in his favor. Pursuant to CCP 5128.5, a trial court may sanction a party/attorney for engaging in subjectively bad faith litigation tactics that are (1) totally and completely without merit, (2) solely intended to cause unnecessary delay, or (3) solely intended to harass. See Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal .App.5th 124, 134-135. Pursuant to CCP 5128.7, a trial court may sanction a party/attorney for presenting papers that are...

Excerpt: ...defendant's second request to continue trial, which is currently set for 12/18/23. The moving papers were filed on 11/15/23; however, the papers do not include any proof of service to plaintiff. Since this Court would expect plaintiff to have an opinion hereon, this Court must treat the motion as an ex parte application, demanding a certain degree of exigency to proceed on the merits. Since counsel subbed in more than two months ago, the exigency...

Excerpt: ...st and passed to their daughter Patricia and their three grandchildren in equal 25% shares. All four held their interests in their own trust as tenants in common. Patricia died in 21W6, leaving her share (25%) to her three children (Lee, Deniece, Price) in equal shares (33.33%) but with the following restrictions: • Price "continue using" the Calf Pasture, Rushing Mountain, Pipeline Field, Bull Field, and the property in the mountains "as curre...

Excerpt: ...defendant filed with this Court a copy of his first set of special interrogatories. While there is no proof of service on that filing, the presumption is that defendant intended to initiate fact-finding pursuant to the Civil Discovery Act. On 08/30/23, defendant filed a motion to compel responses to Special Interrogatories. The Notice accompanying the motion indicated that it was set for hearing on 10/20/23 (although that differs from the court r...

Excerpt: ... case (CRF56188) and is presently appealing that judgment (F082996). Before the Court this day is a motion by Attorney Brian Chavez-Ochoa (hereinafter "Attorney") to withdraw from his joint representation of both AC and June Carrillo ("JC"), and to leave them both to proceed in pro per. Since JC has already voluntarily substituted Attorney out (see 08/11/23 filing), this motion is limited to whether Attorney can cease representing AC (who remains...

Excerpt: ...ent the impropriety of such commingled motions, the issues raised therein are fairly rudimentary. What complicates the matter is not the substance of the motion or the original discovery responses; instead, is the fact that in the interim between filing and hearing date, cross-defendant served supplemental responses. Ordinarily, the service of supplemental responses would render any motion to compel moot, and the parties would have to start with ...

Excerpt: ...aintiff moving for summary judgment on its own claim has the burden to produce admissible evidence on each element of a cause of action entitling him or her to judgment. This means that plaintiffs who bear the burden of proof at trial by a preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. At that point, the burden shifts to defendant "to show th...

Excerpt: ...two fronts: first, permission to substitute in a new party-plaintiff after plaintiff Munoz died; and second, permission to add a new cause of action for wrongful death. On 08/17/23, counsel for both sides lodged a stipulation and order to contnue the trial date. On 09/06/23, counsel for plaintiff filed an ex parte application for permission to substitute in a new party-plaintiff, and to continue the trial. Both matters were heard in Department 5 ...

Excerpt: ... of ac
Ÿon is not adequately pled. The viability of a civil ac
Ÿon to resolve post-mortem community property rights turns en
Ÿrely on whether the court handling the dissolu
Ÿon ac
Ÿon entered a summary judgment, has joined interested par
Ÿes, and retained jurisdic
Ÿon to resolve disputed ownership interests. See In re Marriage of Hilke (1992) 4 Cal.4th 215, 220; Frederick v. Superior Court (2014) 223 Cal.App.4th 988, 993; In re Marriage of...

Excerpt: ...nt was unwilling to permit access without some protections in place. Before the Court this day is defendant's request to contnue trial, which is currently set for 09/25/23. In civil cases, "continuances of trials are disfavored." CRC 3.1332(c). As a result, a trial court "may grant a continuance only on an affirmative showing of good cause requiring the continuance." ld. A motion for contnuance is addressed to the sound discretion of the trial co...

Excerpt: ...ee trimming services at a residence in Soulsbyville. Myers recalled that Nate's agreed to perform the service on 07/16/20 (when Myers would be present), but for reasons unknown Nate's actually arrived on 07/15/20. Only Konigsreiter was home, and he let the tree trimmers in through a locked gate. According to Myers, the "surprise" of this early visit, coupled with some confused "verbal abuse" by the tree trimmers, caused Konigsreiter to "forget to...

Excerpt: ..., and born with gastroschisis — a serious birth defect in which the child's intestines develop outside the due to a hole in the abdominal wall. Despite multple complex surgeries at UCSF, the child had continuing medical ailments and died before reaching his first birthday. As it pertains to Dr. Tupy, he was the child's treating physician in the local (Adventist) emergency room, and made arrangements for a medical flight from Adventist back to U...

Excerpt: ... for plaintiff's 2022 Ram 351W). According to plaintiff, his $70ßW vehicle is basically "worthless" due to said "defect," though the time gap between acquisition (Oct. 2022) and filing (Apr. 2023) suggests that failed repair efforts is not the issue. Before the Court this day is a defense motion by the dealership (only) to compel this dispute to mandatory arbitration pursuant to the standard arbitration clause contained in the all-too-familiar R...

Excerpt: ...s denied without prejudice. Service by publication is generally considered to be an option of last resort. If plaintiff has a lead on an address for defendant, efforts to serve at that address must be exhausted before resorting to publication. Watts v. Crawford (1995) 10 Cal.4th 743, 749 n.5; Transamerica Title Ins. Co. v. Hendrix (1995) 34 Cal.App.4th 740, 745. Before resorting to service by publication, "a number of honest attempts to learn def...

Excerpt: ...intiff and court/public records: o Plaintiff lived at the subject residence for the better part of 20 years (it appears she may have purchased the property for $106,CM on 05/07/01). Eventually plaintiff and her husband Rodney made friends with a neighbor, Aiden Tinney ("Tinney"). o In early 2019, plaintff confided in Tinney that she was experiencing financial stressors due to an unpaid tax bill. Being a good friend/neighbor, Tinney offered to loa...

Excerpt: ...and born with gastroschisis — a serious birth defect in which the child's intestines develop outside the body due to a hole in the abdominal wall. Despite multiple complex surgeries at UCSF, the child had continuing medical ailments and died before reaching his first birthday. As it pertains to Dr. Tupy, he was the child's treating physician in the local (Adventist) emergency room and made the arrangements for a medical flight from Adventist ba...

Excerpt: ... passing, the property was transferred to the brothers as tenants in common (see deed recorded 11/20/09). On or about 07/04/18, Darryl reportedly ejected Richard Z. and assumed sole occupation of the property. Richard's use of the property was reportedly adverse to Darryl, despite their co-equal ownership. On 05/25/21, Richard Z. made a gratuitous transfer of his 50% interest in the property to his daughter (Lauren) and son-in-law (Brandon) as ac...

Excerpt: ...ition 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 S 473(a)(1). Pursuant to CRC 3.1324, the moving party must: (a) specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and (b) include with the moving papers a copy of the proposed amended pleading and a declaration specifying (1) the e...

Excerpt: ...d a commingled motion to compel responses to form interrogatories and a request for production (SS 2030.290(b); 2031.300(b)). Some confusion was created by plaintiff's inclusion of a separate statement, as no such requirement exists when there has been a wholesale failure to respond to the discovery at all. CRC 3.1345(b)(1). Nevertheless, the motions are fairly straight forward. The three discovery sets at issue herein were served on plaintiff vi...

Excerpt: ...st-arbitration status conference for March 20, 2024 at 8:30 a.m. Moving party to provide notice and to file proof of such notice within five court days after the date of this order. FACTUAL BACKGROUND Petitioner UNITE HERE Local 11 (the “Union”), and Respondent 360 N. Rodeo Drive Limited Partnership d/b/a/ Luxe Hotel Rodeo Drive (“Luxe Rodeo”) are parties to a Collective Bargaining Agreement (“CBA”), regarding the terms and conditions...

Excerpt: ...tion for these projects, and (2) including unauthorized conditions. Before the Court this day is petitioners' motion for reconsideration of this Court's Order issued on 05/19/23 resolving all "Phase 1" issues. Petitioners' primary grievance is this: in the Tentative Ruling posted in advance of the 04/21/23 hearing (hereinafter "04/21/23 TR"), this Court stopped just short of defining the phrase "appropriate requirements of state law" to exclude p...

Excerpt: ...negligence. Sierra filed a cross- complaint against Vito, claiming that Vito was partially liable because plaintiff was not following industry safety protocols when he was run over. Sierra also claims that Vito failed to honor contractual obligations to protect Sierra in the case of a lawsuit like this. On 12/05/22, this Court sustained Vito's demurrer to four of the five causes of action contained within Sierra's original Cross-complaint, giving...

Excerpt: ...hedule tree trimming services at a residence in Soulsbyville. Myers recalled that Nate's agreed to perform the service on 07/16/20 (when Myers would be present), but for reasons unknown Nate's actually arrived on 07/15/20. Only Konigsreiter was home. According to Myers, the "surprise" of this early visit, coupled with some confused "verbal abuse" by the tree trimmers, caused Konigsreiter to "forget to turn off a silent engine heater under [his vi...

Excerpt: ... motion as required by Probate Code SS 2105(c)(1) and 2105.5. She has since done so.) Pursuant to CCP S372(a)(3), the GAL of an incompetent or disabled individual "shall have power, with the approval of the court in which the achon or proceeding is pending, to compromise the same [and] release or discharge any claim of the conservatee pursuant to that compromise." Court approval is required for the compromise or settlement of such a claim. Probat...

Excerpt: ...ore the Court this day is plaintiff's motion to compel production of two unredacted emails and/or a privilege log for any redactions remaining. At the core of the present dispute is the identity of the parents who wrote those emails to the school, complaining about the basketball coach. Although it appears that those emails may not pertain directly to plaintiff, or provide direct evidence of notice to the school of contemporaneous wrongdoing, but...

Excerpt: ... (only) to vacate said judgment. Procedural Anomaly Pursuant to CCP 51710.40(b), debtor has 30 days from service of notice of entry of judgment to make a moton to vacate. Debtor was personally served with notice of entry on 04/07/23, giving him 30 days from that date to make his motion. On 05/05/23, debtor timely filed his motion to vacate. Therein, he averred a lack of proper service in Iowa, a lack of service here, and a lack of finality in Iow...

Excerpt: ...rs as tenants in common (see deed recorded 11/20/09). On or about 07/04/18, Darryl ejected Richard Z. and assumed sole occupation of the property. On 05/25/21, Richard Z. made a gratuitous transfer of his 50% interest in the property to his daughter (Lauren) and son-in-law (Brandon) as acting trustees for the LBG Living Trust. Shortly thereafter, Lauren and Brandon — as trustees — sent a "demand" to Darryl to partition the property, and an "o...

Excerpt: ...ompeting but unsigned contract (CCA) nullifying the arbitration agreement when two of the employer's agents signed what amounts to an attendance sheet with extremely fine print incorporating by reference that unsigned nullifying contract? There is also the related question of what to do about plaintiff's expressed belief that the answer to the above question is "no" (that plaintiff was still bound by the PSA) and his cooperation with bind-ng arbi...

Excerpt: ...� a serious birth defect in which the child's intestines develop outside the body due to a hole in the abdominal wall. Despite multiple complex surgeries at UCSF, the child had continuing medical ailments and died before reaching his first birthday. As it pertains to Dr. Tupy, he was the child's treating physician in the local (Adventist) emergency room, and made arrangements for a medical flightfrom Adventist back to UCSF when the child went int...

Excerpt: ...trial are applicable. See Penal Code 51102 and M.B. v. Superior Court 103 Cal.App.4th 1384, 1393-1394. On 04/14/23, the grand jury— through the Office of the District Attorney—caused to be served at the offce of the custodian of records for the County of Tuolumne a civil subpoena for her personal appearance and the production of specific performance and tenure-related documents within a specific former employee's personnel file. The was issue...

Excerpt: ...nt conference (scheduled for 07/07/23) and the trial (scheduled for 08/14/23) for several months so that the parties may contnue working toward a global resolution. In civil cases, "continuances of trials are disfavored." CRC 3.1332(c). As a result, a trial court "may grant a continuance only on an affirmative showing of good cause requiring the continuance." ld. A motion for continuance is addressed to the sound discretion of the trial court. Ho...

Excerpt: ...the approval of the court in which the achon or proceeding is pending, to compromise the same [and) release or discharge any claim of the conservatee pursuant to that compromise." Court approval is required for the compromise or settlement of such a claim. Probate Code 52504. The petition for approval of the settlement must be verified, and presented using the Judicial Council form. The petition must be signed by an attorney of record, and must i...

Excerpt: ...urpose discovery referee to hear the follow-ng motions: plaintiffs' Motion to Compel PMQ Depositions (1-6); plaintiffs' Mohon to Compel Production of Documents at Deposition; plaintiffs' Motion to Compel Further Responses to RPD (2-7); plaintiffs' Motion to Compel Further Responses to Special Interrogatories (11-87); plaintiffs' Motion to Deem Matters (8-21) Admitted; plaintiffs' Motion to Compel Responses to Form Interrogatories; and defendants'...

Excerpt: ...nt's intent to follow through with the agreement, to date that compliance has been elusive. See Ward Declaration, Paragraphs 5-6. Before the Court this day is plaintiff's moton to enforce the settlement by way of a judgment. Pursuant to CCP 5664.6, if parties to pending litigation agree to settle in a writing signed by the parties or their attorneys of record, the court may enter judgment pursuant to the terms of that settlement. This statute was...

Excerpt: ...e judgment debtor, on written notice to the judgment creditor, may make a motion to vacate the judgment under this section." The requirement that debtor give creditor notice includes two related obligations: first, delivery of a copy of the moving and supporting papers to the opposing side's attorney at least 16 court days prior to the date set for hearing (CCP SS 1015); and second, a sworn statement filed with the court showing that the aforemen...

Excerpt: ...o includes with this demurrer a request for sanctions pursuant to CCP 5128.5. Pertinent Background Facts On 03/10/17, plaintiff (in his corporate capacity) and defendant entered into a Professional Services Agreement. In pertinent part, it was agreed between the parties that: 1) plaintiff would work for defendant as an independent contractor rather than as an employee (see PSA SS 5.1-5.9); 2) either side could terminate their business dealings wi...

Excerpt: ...rty, leaving just Darryl to occupy the property as he saw fit. In 2021, Richard made a gratuitous transfer of his 50% interest in the property to his daughter (Lauren) and son-in-law (Brandon) as acting trustees for the LBG Living Trust. They then sent a "demand" to Darryl to partition the property, and an "offer" to Darryl to buy his share. Sometme (not stated), Darryl alleges that he loaned Richard $115,000, and was repaid only $10,000. Accordi...

Excerpt: ...husband with some backyard training exercises when Ryker bit her.l Before the Court this day is defendant's statutory moton for judgment on the complaint. A statutory MJOP is similar to a demurrer, except that a MJOP (1) can be made at any tme 30 days prior to the initial trial date, but (2) only after defendant has answered and (3) only on the grounds of subject-matter jurisdiction or failure to state a cause of action. CCP The rules governing p...

Excerpt: ...ly exhaust the statutory meet and confer requirement. Although counsel indicates having sent a letter to plaintiff inviting a response (see Nagle Decl Para 3), without seeing the letter itself, it is impossible to conclude that it qualified as a faith effort to secure a meeting in person or by telephone. CCP 5430.41. Moreover, since counsel has a phone number for plaintiff, she was obligated to at least try it once. Nevertheless, plaintiff's fail...

Excerpt: ...eposition; o Plaintiffs' Motion to Compel Further Responses to RPD (2-7); o Plaintiffs' Motion to Compel Further Responses to Special Interrogatories (11-87); o Plaintiffs' Motion to Deem Matters (8-21) Admitted; o Plaintiffs' Motion to Compel Responses to Form Interrogatories; o Defendants' Motion to Appoint a Discovery Referee; o Defendants' Motion for Protectve Order. The parties were previously ordered to meet and confer, and to file a joint ...

Excerpt: ...on that the Seller- Defendants manipulated the financial books by inflating values and omitting debts. Plaintiff(s) also claimed that the Seller-Defendants failed to keep up the properties, to give access to software or to satisfy wage concerns. On 10/23/20, this Court entered an order granting the Seller-Defendants' motion for summary adjudication as to each of the five remaining causes of acton. Judgment for Seller-Defendants was entered that s...

Excerpt: ...at (1) the complaint states facts suffic:ient 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 5438(c); see Templo v. State of california (2018) 24 cal.App.5th 730, 735; aezirdjian v. O'Reilly (2010) 183 cal.App.4th 316, 321. The grounds for the motion must appear on face of pleadings (the complaint and the answer), or from facts ju...

Excerpt: ...ording to plaintiff and court/public records: o Plaintiff lived at the subject residence for the better part of 20 years (it appears she may have purchased the property for $106,000 on 06/07/01). Eventually plaintiff and her husband Rodney made friends with a neighbor, Aiden Tinney. o In early 2019, plaintiff confided in Aiden that she was experiencing financial stressors due to an unpaid tax bill. Being a good friend/neighbor, Aiden offered to l...

Excerpt: ...10,000, but instead of signing the papers to transfer the mobile home to plaintiffs, Foust (in ate 2020) sold the mobile home to co-defendant Rawhide Mobile Home Park in Jamestown, where the mobile home was situated. Rawhide then moved to evict plaintiffs from the home (see CVL63541). That CID action was stayed, and eventually "consolidated for all purposes" with the pending civil action (see Minute Order dated 09/19/22). Plaintiff John was dismi...

Excerpt: ...n, hereinafter "FERC"). See 16 USC 5817(1). As part of that process, the applicant must present to FERC "a certification from the State in which the discharge originates [certifying) that any such discharge will comply" with applicable effluent limitations, i.e., restrictions on the quantity, rate, and/or concentration of pollutants discharged from point sources into navigable waters. 33 USC SS 1341(a)(1), 1362(11); 40 C.F.R. S 122.44(k). The Sta...

Excerpt: ...t (PR12032). Defendant, as decedent's personal representative, sought to have plaintiff evicted from the property (see CVL64760). 80th actions are awaiting resolution of this civil action. Before the Court this day is a motion by defendant to strike the First Amended Complaint filed 12/21/22 because it was filed without first securing leave of court. See CCP SS 472(a), 473(a)(1), 576. The filing of an unauthorized pleading may be addressed by way...

Excerpt: ...The goal thereof is to add a new cause of action for abuse of process and a "cause of action" called alter ego. Regardless of when the motion is heard (it is presently set to be heard several weeks after trial has commenced), a review of the court file in anticipation of foreseeable issues with the abuse of process cause of action reveals a concern. This action was commenced on 12/13/17. There is nothing in the ROA suggesting a CCP 5583.340 calcu...

Excerpt: ...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 for the injuries he sustained. Sierra, in turn, filed a cross-complaint against plaintiff's employer Vito, claiming that Vito was partially liable for "allowing" plaintiff to be under Scott's tires. Sierra also claims that Vito owes Sierra a defense and indemnity pursuant to their written Interstate Tr...

Excerpt: .../21. Trial is currently set to commence on 09/11/23 — which is not far from the outside fast-track boundary. See Government Code S 68607; Standards of Judicial Administration S 2.2; and TCSC Local Rule 2.05.0. Despite the impending trial date, plaintiff brings forth at this time a motion for leave to file a First Amended Complaint. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noti...

Excerpt: ...f issues that plaintiffs wish to drill down into. Second, there is defendants' ex parte application for the appointment of a discovery referee. This is based largely on plaintiffs' request for of detailed ESI documents pertaining to corporate entities not directly tasked with decedent's care. Looking ahead, on 04/28/23, there is plaintiffs' consolidated motion to compel further responses to RPDs, RFAs, and interrogatories (form and special). Link...

Excerpt: ... making unauthorized alterations and improvements to his property during the pendency of this case, as well as using a neighbor's driveway to "dump" asphalt and soil onto common areas. A preliminary injunction is an equitable remedy 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 th...

Excerpt: ...l motion to strike (SLAPP) directed at the vexatious litigant motion; (3) a 222-page "request for judicial notice" ostensibly directed to the DCA; (4) a 54-page "objection" to the posted tentative ruling; and (5) various filings seeking to disqualify bench officers. Despite the impropriety of such filings, and contrary to suggestion, this Court did indeed review all of these filings. None of them provided substantive grounds in opposition to the ...

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: ...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: ...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: ... 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...