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...

Excerpt: ...iff's proposed second motion for summary adjudication was presented in a timely fashion. Most practitioners consider Thomson Reuters' “Rutter Guides” to be amongst the preeminent treatises for civil practitioners. It has that reputation not just because of its detail and legal breadth, but also because of its helpful nuggets commonly referred to as Practice Pointers. There is one such Practice Pointer hitting this present dispute right on the...

Excerpt: ...ff to strike defendant's answer (filed 09/02/22) because a corporation may not represent itself in a civil action. Initially, and without regard to the merits, to the extent this qualifies as a motion to strike pursuant to CCP §435, no such motion may be heard on the merits without the requisite meet and confer declaration. See CCP §435.5. There is no such declaration accompanying the motion, and based on the answer at issue, it would appear th...

Excerpt: ...preponderance of evidence must produce evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not. CCP § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388. The operative pleading is the original Complaint, which contains a single cause of action for common count. Under California law, “a common count is proper whenever the plaintiff claims a sum o...

Excerpt: ...) for defamation and invasion of privacy. To appreciate the whole of this present litigation, it is necessary to revisit the origin of the hostilities. The saga 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 – who lived at 18910 Horizon Court – took offence to the act, claiming that the practice blocked access both to their residence, and ...

Excerpt: ... demurrer, it is necessary to revisit the dissolution action from whence the FLARPL emanated (FL15529). This was a marital dissolution proceeding, impliedly abated after respondent's untimely death. Pertinent Background Facts In 2009, Brian and Danielle Chung purchased 20732 Willow Springs Drive in Soulsbyville, and took title thereto as “husband and wife as joint tenants.” In 2018, Brian filed for divorce, represented at the time by Brian Ch...

Excerpt: ...led to plead enough facts to support any cause of action. The operative pleading contains very few facts. The only salient averment easily discernable is that in or about July of 2019, defendant J. Cunningham (and Does) caused to be filed a “false” rule violation report, which apparently became a part of plaintiff's custodian record. Plaintiff attached a copy of the report to the operative pleading, and as such is deemed to have incorporated ...

Excerpt: ...avor defendants' Sixth Affirmative Defense (Comparative Fault of Others), and Fifteenth Affirmative Defense (Noneconomic Loss Limitation) contained within defendants' First Amended Answer filed January 19, 2021. In order to knock out an opponent's affirmative defense 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 issue...

Excerpt: ... having it. To fulfill its legal (Public Util. Code, § 8386) obligations, and comply with current oversight requirements, PG&E must aggressively harden as much of its dilapidated electricity delivery system as possible – particularly in the rural and mountainous regions of California prone to trees and wind. Under normal circumstances, a caravan of utility repair service providers coming up the driveway would be viewed by residents as the comi...

Excerpt: ... the room, to wit: no opposition. A proof of service filed herewith indicates that Plaintiff was personally served with the summons, complaint and all writ of possession papers on August 9, 2022. The address used for service is not the same address listed for Defendant on the subject contract, but is the same address as what appears on the pink slip and the Fed‐Ex's Notice of Acceleration and Demand for Surrender. Defendant is aware of Plaintif...

Excerpt: ...ted action (CV63646). In UD actions, the principal issue is the tenant's right to continued possession of the disputed premises, along with incidental damages resulting therefrom. In the usual case, the tenant is estopped from challenging the landlord's legal ownership of the property because (1) the tenant previously agreed to pay the landlord rent; and (2) if some third party has title to the property, the tenant nonetheless has no right to pos...

Excerpt: ...t unknown claimants. According to Plaintiff, the only known adverse claimant was Owens Corning, who was dismissed from the action “with” prejudice after delivering a Quitclaim Deed to Plaintiff. Plaintiff separately claims that any interest once held by Owens Corning lapsed by operation of law pursuant to the modified rule against perpetuities codified at Civil Code, § 885.030(a). Although it would have been helpful to see the actual Quitcla...

Excerpt: ... between a rock and a hard place. To fulfill its legal (Pub. Util. Code §8386) obligations, and comply with current oversight requirements, PG&E must aggressively harden as much of its dilapidated electricity delivery system as possible – particularly in the rural and mountainous regions of California prone to trees and wind. Under normal circumstances, a caravan of utility repair service providers coming up the driveway would be viewed by res...

Excerpt: ...ndant Alexnder Hernandez to set aside this Court's entry of his default entered 11/01/21, on the ground that the default taken against him was the result of mistake or inadvertence. To qualify for discretionary relief under section 473(b), the party seeking relief must show (1) a proper ground for relief, and that (2) the party has raised that ground in a procedurally proper manner, within any applicable time limits. Cruz v. Fagor America, Inc. (...

Excerpt: ...a predatory relationship between Amy Santos Emerald (hereinafter “ASE”) and plaintiff for several years, even though that relationship continued after plaintiff reached the age of majority and graduated from high school. Before the Court this day is a demurrer and motion to strike, directed at the operative Second Amended Complaint and specified claims/averments therein. Since the filing of the briefs, the California Supreme Court issued its ...

Excerpt: ...ee Services caused to be served upon plaintiffs' counsel via electronic delivery the following sets of discovery: Form Interrogatories to Plaintiff Gary; Form Interrogatories to Plaintiff Judy; Special Interrogatories to Plaintiff Gary; Requests for Documents to Plaintiff Gary; and Requests for Admission to Plaintiff Gary. Plaintiffs did not respond. On 06/01/22, defense counsel sent plaintiffs' counsel a courtesy letter inquiring of the status o...

Excerpt: ...§36(a), a party to the action who is over 70 years of age is generally entitled to trial date set within 120 days if the party has a substantial interest in the action and the health of that party is such that preference is necessary to prevent prejudicing that party's interest therein. Maiya is 78 years of age, and has recently lost a spouse. Her “substantial interest” in the action is obvious given that she is the plaintiff herein, whose p...

Excerpt: ...tition, including statements made before a judicial proceeding, are subject to a special motion to strike. CCP §425.16. The statute does not immunize defendants from lawsuits arising out of such practices, but instead provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of a special motion to strike involves two steps: First, the defendant must establish that the challenged claim a...

Excerpt: ...various employment agreements/understandings. The operative pleading is the Second Amended Complaint, which includes a single cause of action for breach of an oral or implied‐in‐ fact contract. Before the Court this day is defendants' unopposed motion for summary judgment. Although the absence of opposition goes a long way toward justifying a grant of the motion, defendants must still demonstrate a prima facie basis for relief. See CCP §437c...

Excerpt: ...the absence of a triable issue of fact; the trial court must independently determine the motions.” Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457. To set the proper stage, it is important to note that each side has different burdens they need to overcome on this motion. A defendant moving for summary adjudication may prevail on the motion in one of three ways: (1) by affirmatively negating at least one of plaintiff's essential...

Excerpt: ...eft turn and made a “wide” right turn, causing the impact. J.W. was recently released from the case pursuant to a good faith settlement. Before the Court this day is a motion by “the Davis defendants” to compel plaintiff's cooperation with a Psych IME that was noticed by J.W. before he settled out of the case. The Davis defendants have also filed a separate motion for leave to secure their own Psych IME, set to be heard on 09/19/22. Trial...

Excerpt: ...ngly habitual failure to comply with discovery obligations. At the last hearing, counsel for plaintiff expressed remorse and a desire to do better. This Court gave him until 07/22/22 to prove it. Because there is nothing on file indicating whether plaintiff met that new deadline or not, a hearing is required. On 10/06/21, co‐ defendant Adventist caused to be served upon plaintiff via electronic mail form interrogatories, special interrogatories...

Excerpt: ...heel and/or defendant's home. Before the Court this day is a defense demurrer to the operative Complaint. Before reaching the merits, this Court notes two glaring procedural deficiencies with the motion. First, CCP §430.41(a) requires that a demurring party “meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would re...

Excerpt: ...ding in essence that decedent simply liked him better. Before the Court this day is a defense motion for what appears to be an actual substantive ruling on the ultimate question in this case, to wit: decedent's mental competency on 11/01/21 when he executed estate documents. Although defendant suggests that the statutory predicate for this motion is Evidence Code §403(b), it appears from the myriad of miscellaneous code sections cited throughout...

Excerpt: ...t's motion to dismiss the action based upon plaintiff's failure to timely file an amended complaint. On 01/06/22, this Court sustained a defense demurrer to the complaint, and granted plaintiff 30 days leave to amend even though plaintiff never requested leave to amend, and elected not to oppose – or appear at the hearing on – the demurrer. As it turns out, this Court is not convinced that plaintiff received notice of the demurrer in the firs...

Excerpt: ...a box truck northbound on S. Washington and, according to some, got into the left turn and made an unsafe “wide” right turn into the parking lot of Sonora Trading Post (intending to pull up to the loading dock). Plaintiff did not sue Weidler, but he was brought into the case by virtue of Davis' cross‐complaint. Before the Court this day is a motion by Weidler to deem the settlement he reached with plaintiff to be in good faith – thereby a...

Excerpt: ...rious employment agreements/understandings. The operative pleading is the Second Amended Complaint, which includes a single cause of action for breach of an oral or implied‐infact contract. Before the Court this day is defendants' unopposed motion for summary judgment. Although the absence of opposition goes a long way toward justifying a grant of the motion, defendants must still demonstrate a prima facie basis for relief. See CCP §437c(b)(3)...

Excerpt: ...nd despite knowing of their claimed interests, sold it to the mobile home park where it sat (co‐defendant Rawhide Mobile Home Park). Rawhide then moved to evict the plaintiffs from the mobile home. (The UD action remains stayed. See CVL63541.) Before the Court this day is a demurrer to the operative Second Amended Complaint, which no longer includes plaintiff John Brimage (having been the subject of a dismissal entered pursuant to CCP §581(f)(...

Excerpt: ...riorated, damages and/or dilapidated property fence. Defendant filed a crosscomplaint against the railway company for allegedly damaging said fence during routine service work on railway tracks traversing defendant's property. Before the Court this day is a demurrer by Sierra Northern Railway to all four causes of action asserting within the operative First Amended Cross‐Complaint, to wit: general negligence; total implied indemnity; equitable ...

Excerpt: ...wo different issues. The petition cannot be heard at this time, and must be continued. The POS on file here indicates that the petition was personally served on someone named “Michelle” who was reportedly an authorized agent for Quincy Yaley, the Director of Community Development. Pursuant to CCP §1073, “the writ must be served in the same manner as a summons in civil action, except when otherwise expressly directed by the Court.” Althou...

Excerpt: ... stipulation. This is a personal injury action involving injuries from a horseback riding incident. Before the Court this day is plaintiff's specially‐set motion for leave to file a Second Amended Complaint. 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 CRC 3.1324, the moving party must: a) Specify in the moving papers by page, paragraph...

Excerpt: ...ght represented by a judgment by delivering a written assignment of the judgment. However, the assignee is not entitled to enforce that judgment in a court of law until the assignee has filed a proper acknowledgment of assignment or is deemed by a court to be an assignee of record. To be a proper acknowledgement, the details of the debt must be included, as well as an “acknowledged by the judgment creditor” and “documentation sufficient to ...

Excerpt: ... this Court has under submission a referee's recommendation regarding numerous discovery motions referred for initial consideration. The majority of discovery disputes between the parties involve this central question: does an injured plaintiff with liability insurance in effect on the day of an accident “establish financial responsibility as required by the financial responsibility laws of this state” (Civil Code §3333.4(a)(3)) for purposes...

Excerpt: ... which is currently scheduled as a “short cause” bench trial on 06/24/22. Although trial continuance motions are addressed to the sound discretion of the trial court, continuances are generally disfavored unless the denial will result in substantial injustice. Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468; Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 766. Thus, “an affirmative showing of good cause�...

Excerpt: ...to accept for filing a complaint that may fall short of some of the Rules of Court relating to formatting. The acceptance and filing of papers is considering ministerial – meaning no independent judgment is to be applied by the court clerk. See, e.g., People v. Financial Casualty & Surety, Inc. (2017) 14 Cal.App.5th 308, 315. For example, anything on a Judicial Council form, or local court form, must be accepted and filed, even if doctored, inc...

Excerpt: ...n Calendar 1:30 p.m. If you wish to appear for oral argument, you must so notify the Court and all other parties by 4:00 p.m. one court day before the hearing (Friday), pursuant to California Rules of Court, rule 3.1308. The phone number for Department 2 is (209) 588‐2382. The tentative ruling will become the ruling of the Court if the Court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given...

Excerpt: ...en 8:45 and 9:00 a.m. Please arrive at the courtroomnolater than 8:30 a.m. to check in. If the door to Courtroom 43 is locked, please call Judge Coats's secretary, Hellmi ("Amy") McIntyre, at 805‐ 289‐8791 to gain entry. While public health orders related to COVID‐19 are in place, the Court strongly prefers that appearancesbemade by CourtCall. If appearing by CourtCall, please call in before 8:30 a.m. If you intend to appear by CourtCall, y...

Excerpt: ... a comprehensive nine‐ page order. Although plaintiff was denied monetary relief, he was granted a declaration affirming his ownership of the Morris and Stewart claims, and voiding defendant's Josephine claim to the extent it overlay the Morris and Stewart claims. The Court ordered equitable partition, with the “costs of the partition as set forth in CCP §874.010” borne 2/3 to defendant, and 1/3 to plaintiff. The final Judgment included in...

Excerpt: ...erty. What remains of the dispute are unpaid fines, penalties and interest. The Court first notes a concern about service and notice to defendant. Plaintiff indicates that defendant was personally served with the summons at 1900 State Highway 120, Groveland, CA, but there is nothing connecting this address to defendant in the court file. Plaintiff used this same address for service of its CMC statement. However, the Request for Entry of Default w...

Excerpt: ...ading was a Judicial Council form Complaint, containing a single cause of action, relating to a motor vehicle accident occurring on July 18, 2018, involving one Susan Gallardo (with reference to Joseph Gallardo owning the vehicle). Attached to the three‐page Judicial Council form complaint (one of the pages is missing) was fifty‐five pages of what can best be politely described as a wandering manifesto of deep conspiracy theories unrelated in...

Excerpt: ...pies of defendant's personal notes utilized during the first deposition. The motion is DENIED. Pursuant to Evidence Code §771, “if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced … the adverse party may, if he chooses, inspect the writing, cross‐examine the witness concerning it, and introduce in evidence such portio...

Excerpt: ...ot object to the procedure employed, and as such that is how this Court will proceed. CCP §1008(a) requires that any motion for reconsideration be supported by an affidavit from the moving party setting forth “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” The crux of such a motion is that something new or different ...

Excerpt: ...i's only remedy was to foreclose on the note, not pursue collection civilly). Before the Court this day is defendant's motion to expunge plaintiff's Notice of Pendency of Action (aka lis pendens) recorded in the County of Contra Costa on 09/27/19 as Document No. 2019‐0162043‐00, which reportedly appears in the chain of title for APN 433‐401‐014, commonly known as 5144 Rain Cloud Drive, Richmond California 94803. Despite some met and confe...

Excerpt: ...nd “beat down” by defendant. The incident was captured by a video recording device. Police were summoned, and took a report. Defendant pled out to a felony charge of battery, and received a five‐year “no contact” order. Defendant was also ordered to pay restitution in the amount of $11,194.76. On 09/24/19, plaintiff filed a civil suit. Named therein were defendant Yowell, his wife, and their two cleaning businesses (as well as Joanna Ha...

Excerpt: ...cause "reasonable" conduct is typically a contested issue of fact, and one which cannot be resolved on affidavits. Here, defendant sustains its initial burden with the declaration of Robert Griswold who states that "industry standards" allow for a parking bumper to be located between two parking slots. Plaintiff, however, rebuts this with the declarationof its expert, Mark Burns, who offers ASTM standard 1367‐10, section 9.4 stating that the bu...

Excerpt: ...gs are encouraged to appear viaCourt Call. You may contact Court Call as follows: www.courtcall.com or call 888‐882‐6878. You must check in by 8:20AM for the 8:30 AM calendar. To submit on a tentative decision, e‐mail the Court at [email protected] or by fax to Judge McKaig'ssecretary, Isabel Alarcon, at 805‐477‐8790. If a party submits on the tentative decision without appearing, but another party appears, the hearing w...

Excerpt: ...gs are encouraged to appear viaCourt Call. You may contact Court Call as follows: www.courtcall.com or call 888‐882‐6878. You must check in by 8:20AM for the 8:30 AM calendar. To submit on a tentative decision, e‐mail the Court at [email protected] or by fax to Judge McKaig'ssecretary, Isabel Alarcon, at 805‐477‐8790. If a party submits on the tentative decision without appearing, but another party appears, the hearing w...

Excerpt: ...ey Fees, 04/20/2021 Cases, including ex parte matters, will be called at 9 a.m., or earlier, if the Parties are ready. Please check in withthecourtroom clerk by 8:45 a.m. If appearing by Court Call, please call in between 8:35 and 8:45 a.m. If you wish to submit on the court's tentative decision, please send an email to the court at:[email protected]. Absent waiver of notice and in the event an order is not signed at the hearing, ...

Excerpt: ...ey Fees, 04/20/2021 Cases, including ex parte matters, will be called at 9 a.m., or earlier, if the Parties are ready. Please check in withthecourtroom clerk by 8:45 a.m. If appearing by Court Call, please call in between 8:35 and 8:45 a.m. If you wish to submit on the court's tentative decision, please send an email to the court at:[email protected]. Absent waiver of notice and in the event an order is not signed at the hearing, ...

Excerpt: ...ey Fees, 04/20/2021 Cases, including ex parte matters, will be called at 9 a.m., or earlier, if the Parties are ready. Please check in withthecourtroom clerk by 8:45 a.m. If appearing by Court Call, please call in between 8:35 and 8:45 a.m. If you wish to submit on the court's tentative decision, please send an email to the court at:[email protected]. Absent waiver of notice and in the event an order is not signed at the hearing, ...

Excerpt: ...red document is irrelevant to the Court's determination of the instant motion. (People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6.) Defendant's motion for summary adjudication as to issues 1‐3 is DENIED. (Code Civ. Proc., § 437c, subd. (p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c...

Excerpt: ...ary District to prepare proposed judgment. Demurrer to Plaintiff's Fourth Amended Complaint This is a civil action for reliance damages resulting from a report issued in 2014 allegedly overestimating the number of new customer hook‐up options into defendant's sewer system. The operative pleading has gone through a number of iterations, landing now at the Fourth Amended Complaint. Before the Court this day is a demurrer filed by both Jamestown S...

Excerpt: ...n…” (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787 [“Platypus”].) However, “a trial court must be wary about freely granting a party the right to file an anti‐SLAPP motion past the 60–day deadline.” (Ibid.) “In exercising its discretion in considering a party's request to file an anti‐SLAPP motion after the 60–day period, a trial court must carefully consider whether allowing such a filing is consistent wit...

Excerpt: ...0 p.m. If you wish to appear for oral argument, you must so notify the Court and all other parties by 4:00 p.m. one court day before the hearing, pursuant to California Rules of Court, rule 3.1308. The phone number for Department 2 is (209) 533‐6555. The tentative ruling will become the ruling of the Court if the Court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given. Page 3 of 3 This is a...

Excerpt: ...ican Textile (and sold at Walmart). Before the Court this day is a defense motion to bifurcate liability from damages. The defense concern is two‐fold: first, with liability being the main thrust in contention, having a trial on just this issue will avoid the cost associated with a damages phase; and second, by keeping liability separate from damages, there is less chance the jury will be improperly guided by sympathy in deciding the liability ...

Excerpt: ...g hit in the head by a falling pine tree – cut down by defendant. The dispute was submitted to a jury, which returned a verdict favorable to plaintiff in the amount of $37,085.00. Before the Court this day is a defense motion to tax costs and enter an amended judgment consistent with CCP §998. On 07/20/21, defendants caused to be served upon plaintiff a joint statutory offer to compromise in the amount of $40,000.00. On 08/04/21, trial commenc...

Excerpt: ... decision by the State Water Resources Control Board regarding clean water discharge from the Don Pedro and La Grange Projects along the Tuolumne Rover. Before the Court this day is a motion by the State Water Resources Control Board to transfer venue from here to “a neutral county” or to “an out‐of‐county judge” assigned to hear the matter here. Initially, this Court rejects the contention that the motion to transfer is time‐barred...

Excerpt: ...f the individual defendants. The demurrer is sustained with 30 days leave to amend. First, public entities are no longer liable for “general negligence,” and can only be held accountable pursuant to statute. See Gov. Code §815; Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 803‐ 804. A viable claim must be expressly tethered to a precise statute, and none of plaintiff's three causes of action identify any such statute...

Excerpt: ...ge” assigned to hear the matter here. Initially, this Court rejects the contention that the motion to transfer is time‐ barred in any way. Although both sides agree that motions to transfer should occur as promptly as possible, it made sense to await consolidation of the actions before presenting the motion to change venue. Otherwise, there would need to be two separate venue motions. On to the merits … Venue rules designate a particular co...

Excerpt: ...or oral argument, you must so notify the Court and all other parties by 4:00 p.m. one court day before the hearing, pursuant to California Rules of Court, rule 3.1308. The phone number for Department 2 is (209) 588‐2382. The tentative ruling will become the ruling of the Court if the Court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given. Page 2 of 4 This is a personal injury action, arisi...

Excerpt: ...poenas for Plaintiff's Health Insurance Records, etc. Moving Party: Plaintiff Motion filed: October 1, 2021 Tentative ruling: Motions are continued to December 2, 2021, at 1:30 p.m., in Dept. 1, at 12855 Justice Center Drive, Sonora, CA. Parties are ordered to meet and confer with genuine attempt at resolving the discovery issues before them. The parties shall file at least 10 calendar days prior to Dec. 2, 2021, a joint statement – not to exce...

Excerpt: ...gainst it. Plaintiff contends that a section of Chicken Ranch Road just west of Nelson Road is a dangerous condition of public property because (1) there are no roadway markings prohibiting cars from passing one another and (2) overgrown foliage adjacent to a bend in the road makes the risk of injury while passing other vehicles substantial due to a limited line of sight (aka “blind curve”). Defendant counters that the absence of roadway mark...

Excerpt: ...unfulfilled expectations for use of land acquired for development. Before the Court this day is a demurrer by both defendants, directed at the operative Third Amended Complaint. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleadin...

Excerpt: ... file a First Amended Complaint. The original complaint was filed 12/31/20, and contains what appeared to be two causes of action: one for property damage, and one for contempt. Plaintiffs request leave to add a new cause of action for quiet title over the ongoing boundary dispute, as well as a revised identification of the proper defendant party. Plaintiffs' first motion for leave was denied without prejudice due to a myriad of procedural defect...

Excerpt: ...hospitality industry. The operative pleading is the First Amended Complaint, which contains seven (7) causes of action and a single proposed class as follows: “all persons employed by Defendant First Light Resorts, LLC in a non‐exempt position at Rush Creek Lodge in Groveland, California, between 12/11/16 and 03/16/21.” The operative pleading was first filed on 06/09/21, which predates the pending motion by three weeks. Before the Court thi...

Excerpt: ...represented individual on 01/22/20. He seeks recovery in the pecuniary amount of $10M. Before the Court this day is a defense demurrer to the operative pleading, which is the First Amended Complaint filed 03/23/20. The pleading is on a Judicial Council form, and includes two causes of action: one for negligence, and another for “intentional tort.” The FAC fails to designate defendant capacities, which is complicated by the fact that plaintiff...

Excerpt: ...sis for the motion more closely resembles a plea in abatement under CCP §430.10(c) than a true motion to strike, for the reasons which follow, the motion for relief is MOOT. Procedural Background On January 5, 2021, plaintiff Stanley Redick III (hereinafter “plaintiff”) commenced a civil action for damages against Lowe's, relating to the referenced 2018 incident. That filing was assigned case number CV63539. This case has since been removed ...

Excerpt: ...t interest set forth in the Judicial Council form complaint at Paragraph 11.g. For the reasons which follow, the motion is denied. Before reaching the merits, it is important to point out that defense counsel failed to faithfully discharge his statutory obligation to meet and confer prior to filing the motion to strike. Pursuant to CCP §435.5(a), “before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer...

Excerpt: ...osition has been filed. For the reasons which follow, the demurrer to the 2nd cause of action for intentional tort is SUSTAINED without leave to amend, but without prejudice to later motion for leave to amend if the facts discovered so warrant. Defendants to answer in 10 days. Legal Analysis by Demurrer of the Cause of Action for Intentional Tort A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the com...

Excerpt: ...unty of San Francisco (CV63828), which is set for a hearing on 08/17/21. Based on a review of the operative pleadings, is does appear that the two cases involve the same controversy and are likely to require substantial duplication if resolved separately. A Notice of Related Case has been filed, and the time to Tentative Rulings: Department 2 Tuesday, June 29, 2021 Civil Law and Motion Calendar 8:30 a.m. If you wish to appear for oral argument, y...

Excerpt: ...According to proofs of service filed herein, each of the four named defendants was personally served with the summons and complaint as follows:  Avalon Care Center – Sonora (04/12/21)  Avalon Health Care Management (04/12/21)  Avalon of California, LLC (04/12/21)  Genesis Leininger (04/19/21) Since a trial court gains personal jurisdiction over a putative defendant upon service of the summons, and there being no facial defect in the...

Excerpt: ...d of reasons, the default/judgment were void ab initio and must be set aside. The motion is GRANTED. Procedural Background On 01/19/21, plaintiff Stanley Redick III (hereinafter “plaintiff”) commenced the pending civil action for damages, naming “Tuolumne County Jail” as a defendant therein. Plaintiff described Tuolumne County Jail as (1) “a business organization, form unknown,” (2) “a public entity,” and (3) “a corporation or u...

Excerpt: ...ction of business records. Discovery demanded from a nonparty will generally be more limited, and consequently less subject to lengthy dispute, than discovery demanded from a party. See CCP §§ 1987(a), 2020.220(a), 2020.430; Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1030‐1032; Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130. Here, there are two non‐party subpoenas at issue, both issued by the d...

Excerpt: ...amend is DENIED. The motion is post‐trial and is not brought for the purpose of conforming to proof at trial. The motion is also DENIED because it does not contain a proposed amended complaint, nor does it contain a declaration indicating: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was...

Excerpt: ...ve been accepted for filing by the Court Clerk's office. 2. Code of Civil Procedure section 430.10(c) provides that a party against whom a Complaint has been filed may object by Demurrer to the pleading on the ground that there is another action pending between the same parties on the same cause of action. Plaintiff's other lawsuit filed in this Court, Case No. CV63593 against the Tuolumne County District Attorney's Office appears to arise from t...

Excerpt: ...haracterizing as a “paradigmatic case” for granting an irrevocable license one in which a landowner allows his neighbor the right to use a right‐of‐way over his property, knowing the neighbor needs that right to develop his property, but then seeks to revoke the neighbor's permissive usage after the neighbor has built a house in reliance on the landowner's acquiescence]; Cooke v. Ramponi (1952) 38 Cal.2d 282 [plaintiffs were granted an ir...

Excerpt: ... for the parties to meet and confer as required by statute. If resolution of the issues raised in the demurrer was achieved through the meet‐and‐confer process, Defendant's counsel was ordered to promptly inform the Court and request that the demurrer be dropped from calendar. If resolution was not so achieved, Defendant's counsel was ordered, no later than two weeks prior to the next hearing (i.e., March 30, 2021), to file a declaration that...

Excerpt: ...the parties and to stay these proceedings. Plaintiffs contend that the contract between the parties violates the requirements of Business & Professions Code section 7159, which sets forth the terms that a licensed contractor must include in this type of construction contract. Plaintiffs claim that since the contract does not satisfy this code section, the contract is invalid. While the contract may arguably be voidable since Plaintiffs are the on...

Excerpt: ...into a walking path. (3/2/21 O'Connor decl. ¶¶ 3‐4.) While Defendant asserts the wheel stop was not “concealed” (Fact 11), Defendant's own photographic evidence of the wheel stop tends to support aspects of Plaintiff's description of blending into the surrounding environment due to its composition and the light conditions (12/30/20 Mendoza decl. & exhibits). Based on this evidence, the Court cannot make a determination that no reasonable ...

Excerpt: ...cates its tentative ruling on the renewed MSJ. A hearing has been set for February 9, 2021, at 8:30 a.m. should Winn and/or Plaintiffs request oral argument. The Court concludes that Winn failed to meet its initial burden of showing that the causes of action alleged against it have no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) In undertaking its analysis, the Court has considered the moving papers from all of the dates set forth above, as w...

Excerpt: ...�and‐ confer process prior to the filing of the demurrer. Plaintiff is granted 20 days leave to amend the FAC to resolve those two errors. Given the centrality of the exhibits to all three of Plaintiff's causes of action and the uncertainty—at best—and impossibility—at worst—of evaluating the attacks on and defenses of the sufficiency of the allegations of the FAC without those exhibits, the demurrer is overruled without prejudice as to...

Excerpt: ...s attempted application of Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211 to the instant case. The Lowry opinion does not discuss whether a new cause of action added to an existing complaint after the rejection of a government claim is barred by the Government Claims Act, and the Court does not understand that issue to have been one raised by the facts of Lowry. In the instant case, Plaintiff amended his complaint to add the FPB...

Excerpt: ...prior to the hearing date and should not be construed as a tentative ruling: On or around January 11, 2021, the Court received from Plaintiff, proceeding in pro per, a paper titled “Motion to Dismiss without Prejudice,” which reflected her request to “dismiss all causes of action in the complaint without prejudice.” Plaintiff appears to have intended to cite section 581 of the Code of Civil Procedure in support of her “motion.” This r...

Excerpt: ...papers prior to the hearing date and should not be construed as a tentative ruling: The Court intends to deny the motion on the basis of inadequate evidence of improper service of the summons and complaint. The parties are not expected to notify the Court or each other of an intention to appear on December 8, 2020. ...

Excerpt: ...action for fraud in his verified first amended cross-complaint The court's file for this action indicates that proper notice of this motion was given to all parties. There has been no response to this motion. This is an action for financial elder abuse and rescission/restitution brought by plaintiff and cross- defendant Daniel Flores. Defendant and cross-complainant Shane Headrick pleads causes of action for breach of contract and fraud. The subj...

Excerpt: ... a final compliance review hearing for January 5, 2021 at 8:30 a.m. in Department 7. If a sufficient declaration showing full compliance with the terms of the settlement is filed prior to the hearing, it will go off calendar. The court reviews the motion and Settlement Agreement for support that the settlement is fundamentally fair, reasonable, and adequate with reference to the public policies underlying PAGA. (O'Connor v. Uber Technols., Inc. (...

Excerpt: ...xcluding Plaintiff from Claiming Mental Distress Damages Moving party: Defendant Big Oak Flat‐Groveland Unified School District Motion filed: September 25 and 28, 2020 Tentative ruling: Reportedly due to various errors on the part of a service the District hired to file its moving papers, the moving papers were not filed on September 8, 2020, when the District intended, and instead were filed on September 25, 2020 (memorandum of points and auth...

Excerpt: ... be used at trial in the instant case “if the deponents are unable to be served (outside the state) and/or found for trial subpoenas and/or their use in trial for past recollection recorded and/or impeachment [sic].” (Memorandum of points and authorities [MPA] at 3:21‐23.) Plaintiffs list 14 deponents in their moving papers. (Id. at 5:16‐18.) Plaintiffs cite Code of Civil Procedure section 2025.620, subdivision (g) (hereafter section 2025...

Excerpt: ...at, at the time of its review of the file on September 21, 2020, there was no proof that a copy of the September 1, 2020, minute order had been served on Plaintiff.) The September 1, 2020, minute order also reflects the Court's intention to dismiss the case if the complaint is not served by the review hearing set for November 3, 2020. On June 23, 2020, Plaintiff filed what he titled a “Motion to Dismiss Action without Prejudice.” That “moti...

Excerpt: ...rties: Defendants WinnCompanies, LLC; Roxanne Cowee; and Erin Daniels (hereafter Winn Defendants) Joinder filed: July 23, 2020 Tentative ruling: The hearing will be CONTINUED to August 18, 2020, at 8:30 a.m., as set forth below. Analysis On July 20, 2020, while their motion for summary judgment was pending, Seller Defendants filed the instant motion. The instant motion requests an order striking Plaintiffs' expert disclosure pursuant to Code of C...

Excerpt: ...ivision (p)(2) by citing what it asserts are “factually devoid” responses to discovery requests (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 170‐ 172), the instant motion is denied as to each cause of action in CSAA's complaint, as well as to the cross‐complaint of Gilroy Auto Outlet, Inc., dba Modesto Subaru (hereafter Modesto Subaru), because there are triabl...

Excerpt: ... this motion. Plaintiff is awarded $2,000 as a monetary sanction (reduced from the $6,172.50 sought) against Ross and its counsel. (Code Civ. Proc., § 2033.290, subd. (d).) The monetary sanction shall be paid within 20 days of service on Ross and its counsel of a copy of the order on this motion. Analysis On January 3, 2020, Plaintiffs requested an informal discovery conference regarding responses from Defendant Ross Dress for Less, Inc. (hereaf...

Excerpt: ... the Delores M. Delaney Living Trust. The complaint alleges causes of action for breach of contract, unjust enrichment/quantum meruit, constructive trust, injunctive relief, and declaratory relief. Delores Delaney filed an answer on May 28, 2019, in her individual capacity and in her capacity as trustee. Shea Garrett filed an answer on June 17, 2019, in his capacity as trustee of the same trust. Plaintiff filed a petition pursuant to Probate Code...

Excerpt: ...e to the exhibit, title, page, and line numbers.” Defendant failed to include the exhibit number of the evidence cited in support of most of its 157 undisputed material facts. Where exhibit numbers were included, Defendant failed to include the title (or description) of the evidence and, where applicable, page numbers for multiple‐page exhibits. One of the reasons for this rule is to facilitate the Court's efficient location of the evidence c...

Excerpt: ...ors, L.L.C. Motions filed: March 26, 2019 (hearings continued from May 10, 2019) Motion #3: Motion that Truth of Matters Be Deemed Admitted and for Payment of Sanctions Moving parties: Defendants 80 Oak Hills Apartments, L.P.; 80 Columbia Village Townhomes, L.P.; and 60 Forest View Senior Housing, L.P. Motion filed: March 26, 2019 (hearing continued from May 10, 2019) Tentative rulings: No tentative rulings are available regarding the above three...

Excerpt: ...eement containing the arbitration provision was entered into in the context of severance of employment. It was not an agreement for employment. Labor Code section 925 has no application in this context. Comment According to the caption thereof, Attorney Charles Stoner filed the opposition to the instant motion on behalf of Bryan Gerdau, Jennifer Gerdau, Jeffery Wagner, Charles “Stern,” and Kristin “Stern.” However, at the time of the Cour...

Excerpt: ...s Plaintiff appears to have understood the instant motion to target the first amended complaint (FAC) filed on March 15, 2019, the Court has analyzed the motion as applied to the FAC. The motion targets all four causes of action in the FAC for failure to state a cause of action. As a general matter, the Court has disregarded all purported statements of fact that appear in Defendant's moving and reply papers that go beyond or are different from th...

Excerpt: ...y 13, 2016. (Motion at 7:11‐12.) However, it asserts that service was “ineffective” because Defendant Leslie Allen, who is the sole owner of RPM LLC (4/24/19 Allen decl. ¶ 2), “never received the summons/complaint from this action from Mr. Willis.” (Motion at 7:13‐16.) For this proposition, RPM LLC cites National Equipment Rental, Limited v. Szukhent (1964) 375 Tentative Rulings: Department 4 Tuesday, July 2, 2019 Civil Law and Motio...