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...

Excerpt: ...laint alleges a single cause of action, described as “civil debt for administrative penalties.” It arises out of administrative penalties imposed by a “Final Abatement Order and Demand for Payment” dated July 17, 2018, that was issued by the Tuolumne County Board of Supervisors for illegal cultivation of cannabis and related violations of the Tuolumne County Ordinance Code. (Complaint at exhibit F.) Defendants are alleged to owe a debt of...