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: ...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: ...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: ...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: ..., 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: ...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: ...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: ... 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: ...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: ... 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...