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: ...#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: ...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: ...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: ...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: ...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: ... 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: .../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: ...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 ...