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