Excerpt: ...#39;s demurrer to each cause of action in the Second Amended Complaint is OVERRULED. A. Demurrer for Failure to State a Claim First Cause of Action for Negligence: Plaintiff's negligence claims is based on two theories of liability: (1) Porat owned/controlled/managed the property; and (2) Porat employed Plaintiff. Assuming arguendo that Porat is correct that the grant deed shows he did not own the property at the time of the incident, for pur...

Excerpt: ...with leave to amend Porat's motion to strike the Second Amended Complaint as to the prayer for punitive damages (Compl., ¶ 32 & prayer ¶ 4), and Deny in part as to the Second Amended Complaint as a whole, prayer for attorney fees, and other allegations. Merits of the Motion Entire Second Amended Complaint: The entire Second Amended Complaint should not be dismissed simply because the word "stucco/drywall" is used. The material fact ...

Excerpt: ...ve Order, 04/02/2018 stolo The Court intends to rule as follows: Overrule Defendant Foodservice Operators Training Achievement Program Series, LLC's ("TAP") evidentiary objections to the declaration of Plaintiff Tristan Baer's counsel N. Cory Barari and attached Exhibits. Overrule Plaintiff Baer's objections to Defendant TAP's Opposition Brief. Find that Plaintiff fails to demonstrate that the Stored Communications Act app...

Excerpt: ...pel, 02/21/2018 stolo The Court observes that the parties have done a poor job informing the Court what issues remain in controversy since the April 2, 2018 hearing. The Court understands that the parties have a dispute with respect to request for production 37, 38 and 39. The Court intends to compel further production as to these requests. Requests for Production 37, 38 and 39 As to these RPDs, plaintiff argues that defendant's responses are...

Excerpt: ...t intends to Grant cross‐defendants' request for judicial notice. 2 nd c/a (breach of guaranty): SUSTAIN with leave to amend. To allege a breach of the guaranty against Yacoby, Rancho Oaks must allege an actionable breach by L&B within the first five years of the lease. The only breaches plead with specificity occurred well after this time period. Claims by Richard Winchester: Since Winchester is deceased he is not a proper party. However, ...

Excerpt: ...ends to deny the application for the following reasons: (1) The subject property is misidentified in the Application. Tax‐related documents show that the address of the subject property is 950 Tenth Street, Santa Paula, CA, not 950 Terracina Street, Santa Paula, CA, as identified by Plaintiff Catherine O'Brien in her Application. (2) The Sheriff has not levied on the home. (See CCP § 704.750, providing that an application for an order for ...

Excerpt: ...Other, 03/16/2018 stolo The Court intends to DENY the motion for relief from order granting leave to file a second amended complaint. Defendant was not diligent in bringing this motion, filing it one month after it was aware of the court's ruling. The 2/15/18 order was not entered due to defense counsel's mistake, inadvertence, surprise, or excusable neglect. It was entered after due consideration of the fully‐briefed motion and pursuan...

Excerpt: ...03/15/2018 stolo The Court intends to Deny the motion per CCP § 473(b) as untimely, but grant the motion per CCP § 473.5. Defendants Reprudencia Sonkey and Whitenicious, Inc.'s Motion to Vacate Default and Default Judgment is GRANTED per CCP § 473.5. Initially, the Court notes that the motion is not timely per CCP § 473(b) as the default was entered on 6‐28‐17 and this motion was not filed until 3‐15‐18, beyond the six‐month lim...

Excerpt: ...rule as follows: While Plaintiff's meet and confer efforts concerning VUSD's amended responses was less than robust, the court does not find that additional meet and confer would have been fruitful. Request for Documents ("RFD") 2 – VUSD has agreed to produce all files that relate to Magoon but are not maintained in his name and to produce all non‐privileged documents therein. This goes beyond the scope of the demand which is ...

Excerpt: ... confer regarding an agreed upon definition of "504 ACCOMMODATION PLAN" and "LEARNING DISABILY" and VUSD then to respond without objection to request for admission ("RFA") 3 and 4. VUSD objected to many of the RFAs based upon the definitions that Plaintiff employed in the RFAs. The court agrees that some of the definitions that Plaintiff used made it difficult for VUSD to respond. Plaintiff defined "YOU" and "Y...

Excerpt: ...ends to deny the application for the following reasons: (1) The subject property is misidentified in the Application. Tax‐related documents show that the address of the subject property is 950 Tenth Street, Santa Paula, CA, not 950 Terracina Street, Santa Paula, CA, as identified by Plaintiff Catherine O'Brien in her Application. (2) The Sheriff has not levied on the home. (See CCP § 704.750, providing that an application for an order for ...

Excerpt: ...o be premature in light of the language in the court's 2/7/18 ruling. In the 2/7/18 ruling, Judge Baio denied Plaintiff's Application for Court Order of Sale, without prejudice, and also stated: "In the event the sale of the house is ordered and the house is sold, the Court will determine if plaintiff's request for the waiver of Sheriff fees for the recording and publication are to be waived." (See minute order dated 2/7/18.) ...

Excerpt: ...cation, 01/11/2018 stolo The Court intends to rule as follows: Sustain Defendant Simi Valley Medical Building Owners Association's ("Association") Objection No. 1. For the purposes of the present motion only, the Court finds that: (i) the Association's Material Facts Nos. 1‐8, 11, and 12 are undisputed and established; (ii) the Association's Material Facts No. 10 is disputed and established; (iii) the Association's Mater...

Excerpt: ...ntends to rule as follows: Grant cross‐defendants' request for judicial notice. 2 nd c/a (breach of guaranty): The Court intends to SUSTAIN with leave to amend. To allege a breach of the guaranty against Yacoby, Rancho Oaks must allege an actionable breach by L&B within the first five years of the lease. The only breaches plead with specificity occurred well after this time period. Claims by Richard Winchester: Since Winchester is deceased ...

Excerpt: ...er is only appropriate where the grounds for objection appear on the face of the complaint or from any matter of which the court is required to or may take judicial notice. CCP § 430.30(a). For the purpose of a demurrer, the court must treat all properly pleaded facts as admitted. Blank v Kirwan (1985) 39 Cal.3d 311, 318. Starbucks argues that cross‐complainants had options available to them to remedy L&B's complaints about traffic congest...

Excerpt: ...o be premature in light of the language in the court's 2/7/18 ruling. In the 2/7/18 ruling, Judge Baio denied Plaintiff's Application for Court Order of Sale, without prejudice, and also stated: "In the event the sale of the house is ordered and the house is sold, the Court will determine if plaintiff's request for the waiver of Sheriff fees for the recording and publication are to be waived." (See minute order dated 2/7/18.) ...

Excerpt: ...r and Morgan Kaczor's Motion to Strike Punitive Damages From Plaintiff's Complaint is DENIED. CCP § 435 et seq. The Complaint alleges facts sufficient to support a finding that defendants engaged in despicable conduct with a willful and conscious disregard of the rights or safety of others. Taylor v Superior Court (1979) 24 Cal.3d 890, 896. Accordingly, the motion is denied. Defendants to answer within 10 days. ...

Excerpt: ...02/28/2018 stolo The Court intends to GRANT Defendant Bank of Sierra's Application to Expunge Lis Pendens. CCP § 405.32. Plaintiffs have not established the probable validity of their claim. Looking the purchase agreement, the escrow instructions and modifications, the Court sees that the purchase agreement provides for wire transfer of funds for the initial deposit, in that the boxes for cashier's check, personal check, or other were no...

Excerpt: ...Deny motions, without prejudice to plaintiff's right to propound new discovery covering the same materials if he so desires. The current motions were filed on February 2, 2018. That same day the court took plaintiff's motion to reopen discovery under submission. On February 5, 2018, the court granted plaintiff's motion to reopen discovery. However, this subsequent reopening of discovery does not cure the defects inherent in the curren...

Excerpt: ...WITH LEAVE TO AMEND Defendant's demurrer for failure to state a claim to the first cause of action. CCP section 340.5 applies to this claim. The complaint discloses that Plaintiff knew of should have discovered her injury and wrongful cause by August 2, 2016, thereby triggering the shorter 1‐year statute of limitations. (See CCP, § 340.5, subd. (a).) Plaintiff does not allege facts to support delayed discovery or tolling under CCP section ...

Excerpt: ... The Court intends to Deny the motion for clarification as to status of government claim. Plaintiff has cited no statutory or case law authority by which the court is to "clarify" the status of his tort claims. Plaintiff seeks alternative relief under Gov't Code §946.6. However, Plaintiff has filed a complaint and a first amended complaint in this action, thus Plaintiff has already availed himself of the relief that he would be entit...

Excerpt: ...th leave to amend. In the First Amended Complaint, Plaintiff asserts one cause of action: Health and Safety Code §1278.5. To state a cause of action for §1278.5, a plaintiff must show that he: (1) engaged in protected activity under the statute; (2) he was thereafter subjected to an adverse employment action; and (3) a causal link between the two. Mendiondo v. Centinela Hospital Center, (9th Cir. 2008) 521 F3rd 1097, 1105. Plaintiff alleges tha...

Excerpt: ...on for Judgment Not Withstanding the Verdict, 02/01/2018 stolo The Court intends to DENY the motion for judgment notwithstanding the verdict. The motion was not timely made. The notice of motion was served on plaintiffs' counsel more than 15 days after notice of entry of judgment was served on moving parties. Regardless, the motion cannot be granted as to defendant MOGA because that party is a corporation which must be represented by an attor...

Excerpt: ...intends to Deny the motion to stay. The moving party has not made a compelling argument that a stay is warranted. A stay of proceedings is an equitable remedy, the issuance of which rests in the Court's discretion. (See, e.g., Webster v. Sup. Ct. (1988) 46 Cal.3d 338, 345.) "Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency." (Freiberg v. City of Mission V...

Excerpt: ...her, 02/02/2018 stolo Petitioner appears to meet the definition of a newspaper of general circulation. However, a few things have technically deviated from the statutory requirements. First, technically the court should not have set the hearing on the petition until after proof of publication was submitted to the court. Gov. Code §6022. [This seems a little odd since publication is normally meant to give notice of the hearing and it also seems i...

Excerpt: ...o The Court intends to rule on the motion to compel further responses to requests for production as follows: RFP 3: GRANT in part. Plaintiff's response is defective. However, the response refers to a witness statement taken by his investigator and that is entitled to at least qualified privilege. It was defendant's burden to show that denial of its request will unfairly prejudice it or will result in an injustice. Since defendant did not ...

Excerpt: ...t aside default. The motion is, in essence, a renewal motion to an identical motion heard on 12/29/17 and denied. The present motion does not comply with CCP 1008. It is not made under Section 1008, and accordingly, there is no affidavit showing 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. Defendant also does not provide...

Excerpt: ...to rule as follows: The Court intends to Grant the motion to compel answers to deposition questions, in part. Initially, the Court notes that the motion is untimely per CCP § 2025.480. However, a timely opposition has been filed which does not address this issue. As such, this motion will be considered on the merits. Plaintiffs' Motion for Order Compelling Answers to Deposition Questions is GRANTED IN PART. CCP § 2025.480. The burden is on ...

Excerpt: ...llegations that defendants failed to advise her to consult with independent counsel and her requests for punitive damages. The Court intends to DENY the remainder of the motion to strike. Defendants' reliance on Loube v. Loube (1998) 64 Cal.App.4th 421, is misplaced. Here, plaintiff is not seeking damages that exceed the actual damages she incurred. Plaintiff and Edward entered into a stipulated judgment whereby plaintiff was to receive the b...

Excerpt: ...to the joinder by Defendant Mueller, the Court intends to Overrule the motion for joinder. Mueller had no legal argument in his support of joinder. He does not stand in the same position as the moving Defendants who are prior owner/employers of Mueller and Cortez. Mueller and Cortez were still employees of the new owners when the incident occurred. As to the demurrer, the Court intends to sustain the demurrer of the moving Defendants to the third...

Excerpt: ... Grant Plaintiff's Motion for Relief from Jury Payment Deadline. CCP §631(g). Both parties' actions throughout the litigation establish that they proceeded with the understanding that the case would be heard by a jury. Defendant has failed to show prejudice. The Court intends to Deny Plaintiff's Motion for Leave to File Second Amended Complaint. Plaintiff's counsel's actions are extraordinarily untimely. Plaintiff's couns...

Excerpt: ...he Court intends to rule as follows: Sustain Defendants CarMax Auto Superstores West Coast, Inc.'s ("CarMax Auto West Coast") and CarMax Business Services, LLC's ("CBS") evidentiary objections to Plaintiff Ariana Mora's evidence submitted in opposition to Defendants' motion as to Objection No. 1. Overrule Defendants' remaining Objections to Plaintiff's evidence. Find, for the purposes of this motion only, t...

Excerpt: .../2018 stolo The Court intends to Sustain Without Leave to Amend the Demurrer to causes of action 3 ‐ Breach of contract, 4 ‐ Declaratory relief & 5 ‐ Breach of contract and bad faith. Plaintiff has plead insufficient facts to state a cause of action and pursuant to Moradi‐Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287, 308, Plaintiffs cannot state facts sufficient to state any cause of action. Contrary to Plaintiffs'...

Excerpt: ... quash service of summons CAUSAL DOCUMENT/DATE FILED: Motion to Set Aside, 11/28/2017 stolo The Court intends to Deny the motion to set aside based upon Code of Civil Procedure §473(d). The Court intends set aside the default based upon Code of Civil Procedure §473(b). The Court intends to Deny the request to quash the service of summons. The evidence establishes that there was a defect with the substituted service. Joseph Janik could reasonabl...

Excerpt: ...D Schwetz' motion to vacate 'tentative' decision. D's claim that the decision was not consistent with the undisputed evidence submitted at trial was not substantiated as D presented no evidence that reflects what was or was not 'undisputed'. D's claim that P didn't establish the elements to support causes of action 1‐3 is an insufficient evidence argument, not a CCP 663 argument. D's argument about the Court ...

Excerpt: ...uest for judicial notice is GRANTED. Porat's demurrer for uncertainty is OVERRULED. Porat's demurrer for failure to state a claim to each cause of action in the FAXC is SUSTAINED WITH LEAVE TO AMEND. Cross‐Complainants cannot state a claim against Porat based on his alleged ownership or status of a buyer of the property because the grant deed shows that the allegation is false. The courts will not close their eyes to situations where th...

Excerpt: ...ntends to Grant RJN of moving party. (Ev. Code § 452.) The Court intends to Grant the motion of defendant Carmax Auto Superstores West Coast, Inc. to strike plaintiff Ariana Mora's Amendment to Complaint – Incorrect Name in its entirety as irrelevant, improper, false and contrary to law. (CCP §§ 435, 436.) CCP 474 provides: § 474. Defendant designated by fictitious name; amendment; requirements for default judgment; notice to person ser...

Excerpt: ...ther, 01/17/2018 stolo The Court intends to Grant the motion to conduct discovery of defendant's assets. Initially, the court notes that the evidentiary objections filed by Defendant are overruled in their entirety. Plaintiffs have established a 'substantial probability' of prevailing on a claim for punitive damages. The disclosure of the financial condition is limited to Plaintiffs' attorney only. "Even if discovery is ordere...

Excerpt: ...by the statute of limitations at CCP § 340.5 and plaintiff has not plead around the bar. The Court intends to Deny leave to amend unless plaintiffs can demonstrate how she can amend. Discussion: Demurrer is only appropriate where the grounds for objection appear on the face of the complaint or from any matter of which the court is required to or may take judicial notice. CCP § 430.30(a). For the purpose of a demurrer, the court must treat all p...

Excerpt: ...Grant Defendant's motion to set aside default and default judgment. The Court intends to order the Defendant to file and serve his answer. Discussion: CCP Section 473.5: When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgmen...

Excerpt: ..." to accept the court's explanation for its ruling. (Murray dec., ¶ 3). At the hearing, the court "inquired of Mr. Maciejewski if he had any evidence or could make any other allegations that would provide the Court with a reason to give him leave to amend. [], he admitted he could not." (Murray dec., ¶ 6). Leave to amend was denied on 8/31/17. It appears that plaintiffs' law firm gave the file to another attorney, Sheri Kane...

Excerpt: ...t intend to Deny the motion for summary judgment. The Court intends to Deny summary adjudication of issue (1) "There is no triable issue of material fact on the 1 st or 2 nd causes of action of plaintiff's complaint for premises liability and negligence, as plaintiff's exclusive remedy is recovery through the workers' compensation scheme pursuant to Labor Code section 3602." In undisputed material facts nos. 3‐8, movant MGR ...

Excerpt: ...: Motion to Set Aside Default, 01/12/2018 stolo The Court intends to Grant the motion to set aside the default. There are no "gotchas" and no cheap judgments. Plaintiff indeed filed the request for default at the first moment after the 30 days ran ‐‐ the 1 st court day after Christmas. This all but tripping over the threshold to enter such a default, while allowed by the code is unssemly. 1. Landscape: CCP 473(b) provides a court is e...

Excerpt: ... intends to Deny the motion for leave to file a second amended complaint. The proof of service attached to the motion has not been signed. Regardless, the motion was not timely filed and/or served. CCP § 1005(b). In order to be timely, the motion had to be filed by 1‐18‐18 and mail served by 1‐13‐18. The motion was filed late on 1‐25‐18 and mail served late on 1‐20‐18. Further, the moving papers do not comply with California Rule...

Excerpt: .../05/2018 stolo The Court intends to rule as follows: Compel as to 5, 8, 18, 19, 20, 26, 31, 32, 33. As a general matter, Plaintiff must produce documents even if he believes that Ralphs or its insurance carrier has the documents (5, 18). Defendant is entitled to notes, memoranda regarding the incident (8), correspondence that Plaintiff had with Defendant's representatives (31), correspondence that Plaintiff had with the manufacturer of the ce...

Excerpt: ...r, 01/09/2018 stolo The Court intends to Deny the Motion. CCP §916. The Motion necessarily embraces and would be affected by Plaintiff's appeal from the Court's 1/11/18 Orders. Under section 916 the trial court is divested of subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal. The effect of the appeal is to remove the subject matter of the order from the jurisdiction of th...

Excerpt: ...ts requested by Defendant Melgar, Nos 1 – 3, 7‐11. The Court intends to: 1. SUSTAIN, with leave to amend, Defendant's demurrer to the 2d Cause of Action: Violation of California High Mortgage Law. Plaintiff pleads that the kumquat property was rented to a tenant, taking the property out of the definition of "covered property" for purposes of this law. 2. In all other respects, the demurrer is overruled. CCP § 430.10 (e), (f). ...

Excerpt: ...hiring and supervision because the plaintiff has alleged insufficient facts. While Plaintiff alleges that Moving Party was negligent in hiring Defendant Aguilar, Plaintiff does not allege that Aguilar was working at the time he hit Plaintiff or that driving a truck is part of his job. Plaintiff's counsel to clean up the typographical errors, that includes sticking in the names of entities that are not parties to this action. 2nd amended compl...

Excerpt: .../2017 stolo The Court intends to Deny Respondents Scott and Hillary Lipsig's petition to vacate the January 19, 2017 Arbitration Award, on the ground that the request to vacate the Award is time‐barred because it was (i) not filed within 100 days of service of the Award on Respondents (see Code of Civil Procedure §1288); and (ii) not filed within 10 days of Petitioner K.O. Remodeling, Inc.'s service on Respondents of its petition to co...

Excerpt: ...e motion was not timely mail served per CCP § 1005(b), the Court intends to consider the motion on it's merits as a timely opposition and reply have been filed/served. The Court intends to Deny Defendants' motion to compel further responses to depositions. CCP § 2025.480. The Court intends to Grant Plaintiffs' request for sanctions. CCP § 2025.480(j). The Court intends to award sanctions against defense counsel Jennie Hendrickson i...