Excerpt: ...(a)(2), requires that the plaintiff set forth in the motion the allegations in the previous pleading that are proposed for deletion, and where (by page, paragraph, and line number) the deleted allegations are located. Subdivision (a)(3) requires that the plaintiff set forth in the motion the allegations that are proposed to be added, and where (by page, paragraph, and line number) the additional allegations are located. Plaintiff also did not sub...

Excerpt: ... this litigation was filed plaintiff was reemployed by defendant and as part of that reemployment plaintiff executed an arbitration agreement on December 28, 2018 covering all past, present and future claims arising from employment and waiving all class action claims. Defendant contends: class action waivers are generally valid and enforceable as stated in Epic Systems Corp. v. Lewis (2018) 138 .Ct. 1612, 1632.); plaintiff's individual claims are...

Excerpt: ...nce; (3) concealment; (4) intentional misrepresentation; (5) negligent misrepresentation; and (6) declaratory relief against plaintiff/cross‐defendants Setter Construction Corporation and Patrick Setter. Cross‐ defendants now demur to the Second and Sixth Causes of Action on the basis that these claims fail to state a cause of action, and they also move to strike portions of the ACC. DEMURRER TO AMENDED CROSS‐COMPLAINT 1. Standard of Review...

Excerpt: ...cial meeting was to be held. The special meeting took place on August 7, 2019. Pending is plaintiff's motion to file a First Amended Complaint (filed Oct. 31, 2019). The motion is opposed by the Association. LaTour Hotels and Resorts filed a joinder to the Association's opposition. The motion is denied because it does not “relate back” to the original complaint and appears to be more akin to a supplemental complaint. (See Code of Civ. Proc. �...

Excerpt: ...e to hear this motion. The court set the hearing for December 20, 2019; and directed the following: the motion is to be filed and served by December 12, 2019; opposition papers are to be filed and served by December 17, 2019; and the reply is to be filed and served on December 19, 2019. The proof of service declares that on December 12, 2019 notice of the hearing and the moving papers were served by mail to the interested parties. At the time thi...

Excerpt: ...t on the 2nd amended complaint on the following grounds: defendant correctly calculated the annual changes in the variable interest rate on the loan as provided for by the agreement and charged the proper amount of interest under the terms of the subject agreement, therefore defendant did not breach the agreement; defendant did not charge 5.75% interest in March 2017 as alleged in paragraph 19 of the 2nd amended complaint, because a delinquent ac...

Excerpt: ... Cordonnier; deponent Mr. Cordonnier failed to appear at his scheduled deposition; and defendant incurred attorney fees in the amount of $1,300 representing four hours of attorney time to prepare the motion and costs of $60 for the filing fee. Defendant moves to compel Mr. Cordonnier's deposition and requests an award of monetary sanctions in the amount of $1,360. On October 25, 2019 the court granted plaintiff's counsel's motion to be relieved a...

Excerpt: ...for and then constructing an alternative bridge over the creek that runs over both properties in order to provide the Nygaard property its own access to the home on the Nygaard property without plaintiff having to use the existing bridge and driveway easement. On July 6, 2018 the court granted plaintiff's request for a TRO, which enjoined defendants, their officers, agents, employees and representatives from blocking, restricting, or impeding the...

Excerpt: ...ARD OF REVIEW A demurrer is directed at the face of the pleading and to matters subject to judicial notice. (Code of Civ. Proc. § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [petitioner's] allegations or the accuracy with which he describes the [respondent's] conduct. A demurrer tests only the legal sufficiency of the pleading.” (Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 3...

Excerpt: ...terrogatories are not ambiguous. Ambiguity is a valid objection, but only if the question is wholly unintelligible. An interrogatory must be answered if “the nature of the information sought is apparent.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [149 Cal.Rtpr. 499].) Here, the nature of the information sought is apparent and not wholly unintelligible. Plaintiff states in her supplemental response that she is entitled to actual damages...

Excerpt: ... that some, but not all, of the pages of the passport were produced. In response, defendant states that all pages of the passport have now been produced. In reply, plaintiff does not address whether all pages of the passport have been received. Regardless, what is clear is that defendant still has not provided a verified written response to RP No. 24. Unverified responses to discovery demands are tantamount to no responses at all. (Appleton v. Su...

Excerpt: ...ourt. The court will address each motion separately. Plaintiff's Motion to Deem Admitted Requests for Admission. Plaintiff's counsel declares: on July 25, 2019 requests for admission, set two were served on defendant; and defendant failed to provide any responses to requests for admission, set two. Plaintiff moves to deem admitted requests for admission, set two and further requests an award of monetary sanctions. The proof of service in the cour...

Excerpt: ...n the action .… [¶] … The motion shall be made on the grounds that the plaintiff resides out of the state … and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.…” (Id., subds. (a), (b).) This matter was continued from November 22 in order for plaintiff to file a corrected declaration and to submit documentary evidence in support of her assertion that the motion s...

Excerpt: ...nd Eve Lowry, which was filed in 2006 (See PFL20060896.). Defendant Eve Lowry argues: the real and personal property rights raised in the civil action are subject to the jurisdiction of the Family Law Court that first acquired jurisdiction, thereby making the Family Law Court the exclusive jurisdiction for the civil causes of action to be heard. Plaintiff opposes the motion on the following grounds: the conduct of the named defendants occurred af...

Excerpt: ...rds, including email communications between the Planning Division and four email domains, and records concerning a criminal investigation. Respondents answered on August 1, 2019. The parties' briefing is now complete and the matter is set for oral argument on the merits. Petitioner filed an opening brief and declaration (filed Sept. 23, 2019); respondents filed an answering brief and several declarations (filed Oct. 15, 2019); and petitioner file...

Excerpt: ...g Bergstedt Defendants' Good Faith Settlement Tahoe Realty's Motions to Quash Deposition Subpoenas re: DMV & DRE The motions to quash are granted. Tahoe Realty's Motion to Continue Trial, Joined by Nelson Group Good cause appearing, motion to continue trial is granted. The trial date, currently set to commence January 27, 2020, is hereby vacated. The matter is referred to the calendar clerk for setting of a Case Management Conference to select ne...

Excerpt: ...the MSC set for December 4, 2019. Plaintiff would not stipulate. On September 30, 2019 defense counsel received a letter from plaintiff's counsel stating plaintiff did not agree for the examination to take place more than 75 miles from her residence and plaintiff requested a nurse consultant be present at any examination. Defendants move to compel plaintiff to travel hundreds of miles from Hemet, California to Sacramento, California in order for ...

Excerpt: ...akefront Professional Building, LLC, Lainey Richardson, and Bruce Richardson. Now pending is defendants' demurrer to the complaint. 1. STANDARD OF REVIEW A demurrer is directed at the face of the complaint and to matters subject to judicial notice. (Code of Civ. Proc. § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's cond...

Excerpt: ...opposition to Thor Motor Coach, Inc.'s motion for determination of good faith settlement, which discloses the amount of the settlement to support its argument that the settlement amount was not within the ballpark of Thor Motor Coach, Inc.‘s proportionate liability to plaintiffs and that the amount shows collusion between plaintiffs and defendant Thor Motor Coach, Inc. to the detriment of all other defendants in this action. The amount of the s...

Excerpt: ..., California. Another proof of service declares that the follow up mailing of the summons and complaint to that address occurred on April 30, 2008. Default was entered on July 7, 2008. The proof of service of the request for entry of default declares that on July 2, 2008 the request for entry of default was mailed to the address where defendant was served. On July 8, 2008 a default judgment was entered against defendant in the amount of $2,409.40...

Excerpt: ...plaint and granted in part their motion to strike portions of the cross‐complaint with ten days leave to amend. An amended cross‐complaint was not filed and on April 12, 2017 defendants De Vincenzi and De Vincenzi and Associates, Inc. filed their answer to the crosscomplaint. They also filed an amended answer to the cross‐complaint on May 8, 2017. Trial was initially set to commence on April 30, 2018. The trial date was vacated at the manda...

Excerpt: ...ful foreclosure. Defendant MERS, Inc. (MERS) answered the complaint on April 23, 2019 by general denial and assertion of 16 affirmative defenses. Defendant MERS moves for judgment on the pleadings on all six causes of action on the following grounds: plaintiff's assignment based claims fail, because the deed of trust is not void and plaintiff lacks standing to bring a wrongful foreclosure cause of action; plaintiff lacks standing to challenge a v...

Excerpt: ...nancial) demurs to all causes of action of the 1 st amended complaint on various grounds. Plaintiffs oppose the demurrers on various grounds and object to all of defendant's requests for judicial notice, which consist of court records of rulings, judgments, and orders, and recorded documents. Defendant MTC Financial filed a late reply and other late reply documents on July 22, 2019. The reply was required to be filed not later than July 19, 2019,...

Excerpt: ... on July 2, 2018. (Decl. of Robert Hukaby, ¶ 2 & Ex. A.) Responses were never served. (Id., ¶ 3.) Prior to the Mandatory Settlement Conference, he spoke with plaintiff's counsel and advised them that he never received discovery responses. (Id., ¶ 4.) At the MSC on April 26, 2019, he notified the court he would be filing the instant motion. (Id., ¶ 5.) Plaintiff's counsel stated at the MSC that they discovered their error in failing to respond...

Excerpt: ...Ex. A at p. 2, sec. 4.) On July 15, 2019, plaintiff filed a Request for Dismissal with prejudice as to the Cramers. Simpson and D'Aintree are the only remaining defendants. The allegations against Simpson and D'Aintree stem solely from legal services they provided to Michael Cramer with regard to an eviction action against plaintiff. As such, Simpson and D'Aintree were acting as agents of the Cramers, and therefore the release provision of the se...

Excerpt: ...reliminary and permanent injunction, intentional misrepresentation, fraud, and negligent misrepresentation causes of action of the 2 nd amended complaint without prejudice. Defendants Cribbs and the Cribbs Family Trust move for summary judgment on the remaining causes of action of the 2nd amended complaint on the following grounds: plaintiff Marconi lacks standing to maintain the remaining causes of action of the 2nd amended complaint; defendants...

Excerpt: ... and requests for production, set two and produce the documents requested within ten days without objections, and serve a response to defendant Lusk's request for statement of damages within ten days. The proof of service of the notice of ruling filed on May 30, 2019 declares that on May 28, 2019 notice of the ruling was served by mail on plaintiff's counsel and counsel for defendant Yang. Defense Counsel declares there were a series of emails an...

Excerpt: ...he court's file. Absent proof of adequate service on the interested parties, the court can not reach the merits of the motion and will be required to deny the motion without prejudice due to lack of service. Defendant Kohs' Motion to Dismiss Case. On November 15, 2018 plaintiff filed a complaint asserting causes of action against defendants to quiet title, for cancellation of voidable instrument, for declaratory relief, for slander of title, and ...

Excerpt: ...iff broke her left ankle, which required her to seek immediate medical care. Defendants move for entry of summary judgment or summary adjudication on the following grounds: plaintiff can not prove there was a duty owed to her, because plaintiff has been deemed to have admitted defendants were not negligent for the injuries sustained in the incident, and in fact, she is the negligent party responsible for any damages; plaintiff has no evidence to ...

Excerpt: ... some temporary work at the residence pending receipt of the required parts to complete the repair. Defendants Shirey's and Brueck demur to the following causes of action of the complaint: breach of implied warranty of habitability; premises liability; negligence per se; and intentional tort. Plaintiffs' opposition agrees to remove the separate causes of action for breach of the implied warranty of habitability, premises liability, negligence per...

Excerpt: ...dly arise from a transaction wherein plaintiff loaned defendants $175,000 secured by a deed of trust recorded against property located in Cameron Park, California and a personal guaranty allegedly executed by one of the defendants. (1st Amended Complaint, paragraphs 13 and 14.) Plaintiff allegedly was a junior lienholder on the real property and plaintiff's security interest was sold out/eliminated by a senior lienholder's foreclosure sale. (1st ...

Excerpt: ...rn, train, or educate; the constructive fraud cause of action is fatally defective in that it fails to allege with the required specificity the facts related to defendant's alleged knowledge about Doe 1's conduct and the allegedly suppressed and concealed true facts. Plaintiff opposes the demurrers on the following grounds: defendants stood in loco parentis to plaintiff and there was a special relationship alleged such that defendants owed plaint...

Excerpt: ...or vehicle against Bunn. In addition, plaintiff also asserts premises liability against defendant City of South Lake Tahoe for the negligent failure to install and maintain a traffic device and dangerous condition of public property, and premises liability against defendant Tahoe Keys Corporation for negligent failure to trim tree branches. Plaintiff asserts damages in the amount of $796,911.56. (Decl. of Megan E. Nevin, ¶ 12 & Ex. 2.) On May 1,...

Excerpt: ...plaintiff can not enforce the Pull/Call right to elect the sale of plaintiff's interest in defendant Urbana Tahoe TC, LLC, because plaintiff materially breached the operating agreement by failure to close the sale proceedings within 60 days of defendant Timber Cove Holdings, Inc.'s election to purchase plaintiff's interest in Urbana Tahoe TC, LLC; plaintiff's performance of its contractual obligation to select an appraiser and have the entire buy...

Excerpt: ...nary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading.” (Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213 [197 Cal.Rptr. 783].) All properly pleaded allegations of fact in the complaint are accepted as true, but not the contentions, deductions, or conclusions of fac...

Excerpt: ...er three years ago on May 2, 2016. The proof of service declares that on June 18, 2019 the notice of hearing and the moving papers were served on defense counsel by mail. Defendants Flynn and Kubo Hospitality Management, Inc. oppose the motion on the following grounds: defendants will be prejudiced by the amendment, because the matter has been actively litigated for years and the parties have engaged in discovery; the motion has been brought at a...

Excerpt: ...espond to the request for documents and produce documents, without objection, and deem certain facts to be admitted on the basis of Plaintiff's failure to deny the asserted facts. Plaintiff also seeks an award of monetary sanctions. The motion was set for hearing on May 31, 2019. Defendant did not file any opposition to the motion. On May 30, 2019, the court vacated all pending dates, including the hearing on Plaintiff's motion, when Judge McLaug...

Excerpt: ...ny the petition on November 7, 2017. Upon request of the City, the hearing on the petition set for November 16, 2017 was vacated On October 23, 2017 respondent Rawat filed her first motion to disqualify the attorney representing the City in this proceeding. On January 18, 2018 the motion was denied. On July 6, 2018 the court overruled respondent Rawat's demurrer to the petition. A hearing was held on the petition/motion to appoint a receiver on A...

Excerpt: ... defendant owes plaintiff $26,898.10 for the personal loan to defendant on an open book account and account stated; inability to pay is not a defense; and the answer that was filed fails to state facts sufficient to constitute a defense. The proof of service declares that on March 28, 2019 the notice of motion and moving papers were served by mail on defendant to his address of record. There is no opposition to the motion in the court's file. “...

Excerpt: ...rs to all causes of action of the 1st amended complaint on the following grounds: plaintiffs failed to allege sufficient facts to establish that defendant breached the agreement; plaintiffs failed to adequately allege damages for breach of contract; plaintiffs failed to allege sufficiently specific facts to establish the elements of the fraud and negligent misrepresentation causes of action; the promissory fraud and rescission causes of action ar...

Excerpt: ...n filing and motion fees on the ground that none of costs are court filing fees and they are unrecoverable courier fees; $575.80 out of the amount of $887.61 claimed as deposition costs can not be recovered, because transcription costs associated with subpoenas duces tecum are not deposition transcription costs by a court reporter; and mileage costs for depositions is limited to $10.21 representing the travel between defense counsel's office and ...

Excerpt: ...very propounded from defendant Ronald Sheckler. Attached to counsel's declaration is a copy of requests for production, set one and the proof of service, which declares the requests for production were served by mail to defendant Ronald Sheckler's then counsel of record on January 8, 2019. The moving papers were filed on April 30, 2019. Plaintiff moves to compel production of documents without objections and further requests an award of monetary ...

Excerpt: ...al marijuana dispensary in the City. On November 30, 2018 the Third District deemed the petition for writ of supersedeas as a request for issuance of a stay of the Superior Court judgment during the pendency of the appeal and granted the stay. In March 2019 the parties apparently reached a settlement of the case. Petitioner agreed not to oppose a motion to approve the agreement under Government Code, § 1091(b)(15) and further agreed to dismiss t...

Excerpt: ...form interrogatories—general (set one). 1. BACKGROUND In May 2018 TKPOA moved to compel responses from TK Marina to these same discovery demands, in addition to a motion to deem matters admitted. On June 15, 2018, the court granted TKPOA's motion in its entirety and ordered TK Marina to pay $1,000 as a sanction under the Discovery Act. In August 2018 TKPOA moved for terminating sanctions, monetary sanctions, and contempt sanctions for TK Marina...

Excerpt: ..., ¶ 2.) On March 26, 2019, when no discovery responses had been served, plaintiff's attorney contacted defendant's attorney in an attempt to meet and confer about the issue. (Id., ¶ 3.) On April 23, 2019, the attorneys discussed the overdue discovery. (Id., ¶ 4.) Defendant's attorney promised that responses would be served within two weeks of their conversation. (Ibid.) As of May 17, 2019, plaintiff's counsel had not received any responses. (I...

Excerpt: ...aintiff's claimed salary, and waiting time penalties. Plaintiff moves to disqualify the law firm of Lewis, Brisbois, Bisgaard and Smith, which represents defendants in this action, on the following grounds: disqualification is mandated, because the law firm undertook to represent an “adverse party” without securing informed written consent of their client, the plaintiff; the law firm owes a continuing duty of confidentiality and loyalty to pl...

Excerpt: ...iff's motion for summary judgment or, alternatively, summary adjudication, against defendant Simms. 1. STANDARD OF REVIEW “A plaintiff … has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff … has met that burden, the burden shifts to the defendant … to show that a triable iss...

Excerpt: ...iff Tousely was driving his motorhome on the freeway. Arden High Tech Auto Repair, Inc. (Arden) was named as defendant Doe 9 on September 27, 2018. Defendant Arden moves for entry of summary judgment against plaintiffs on the following grounds: plaintiffs can not establish that defendant Arden breached a duty of due care related to the subject propane tank that exploded and cannot prove defendant Arden was a substantial factor in causing plaintif...

Excerpt: ...f's property, preventing defendants from obstructing or interfering in any manner with use of the alleged driveway, preventing defendants from creating any obstructions or erecting encroachments on plaintiff's property, and preventing defendants from trespassing and vandalizing plaintiff's property. Plaintiffs argue: they have a long‐existing right to the driveway acquired through prescriptive use and defendants can not unreasonably interfere w...

Excerpt: ...icia alleges that Mark violated two provisions of the Agreement: (1) he did not make the Shroud of Turin casting available to Alicia to take photographs and to make copies of available documents, and he has not coordinated its sale; and (2) he did not honor her irrevocable right of first refusal to purchase, at 92% of market price or third party offer, with at least 4 months' notice when Mark or Jonathan decided to sell the residence at 1230 Marg...

Excerpt: ...auses of action on the following grounds: plaintiff failed to adequately allege two elements of a trademark infringement cause of action – that the purported trademark is protectable and there was a likelihood of confusion between plaintiff's purported trademark and defendant's registered trademark; plaintiff's trademark is generic and not protectable; if the trademark is descriptive, plaintiff has not adequately alleged the trademark has secon...

Excerpt: ... (HOA) on behalf of all current and past owners of property within the HOA during the period of 2006‐ 2018, except defendant Serrano Associates, LLC, who overpaid assessments as a result of the HOA's alleged overcharging developed property owners above the amount allowed by the C,C,&Rs. (Third Amended Complaint, paragraph 37 and Exhibit 4.) Plaintiff also seeks to include in the class all persons who owned developed property in cost centers 2 a...

Excerpt: ...reliminary and permanent injunction, intentional misrepresentation, fraud, and negligent misrepresentation causes of action of the 2 nd amended complaint without prejudice. Defendants Cribbs and the Cribbs Family Trust move for summary judgment on the remaining causes of action of the 2nd amended complaint on the following grounds: plaintiff Marconi lacks standing to maintain the remaining causes of action of the 2nd amended complaint; defendants...

Excerpt: ...furnish and maintain copies of accurate wage statements. Defendants now move for summary judgment or, alternatively, summary adjudication. 1. BACKGROUND Plaintiff was employed as an hourly, nonexempt restaurant server at Jimmy's Restaurant located inside The Landing Resort and Spa in South Lake Tahoe from August 2016 to July 2017. (Pl.'s Separate Stmt. of Disputed Material Facts (“DMF”), ¶ 1.) On August 7, 2017, plaintiff submitted letters t...

Excerpt: ... forth in Code of Civil Procedure, § 1021.5. Defendants Carter and Tenth Hall, Inc. argue: the claim arises out of contract; plaintiffs attempt to create a claim for punitive damages for a simple breach of contract action against the sellers in a real property transaction arising from a well report received during the transaction; the allegations of fact do not support a claim for punitive damages against the seller's agent; there are no facts a...

Excerpt: ...d costs were reasonably incurred and reasonable in amount; the additional attorney fees and costs were incurred, because defendant delayed payment and impeded collection efforts; and the amount of fees sought are justified under the lodestar method of determining reasonable attorney fees. Defendant opposes the motion on the following grounds: the fees and costs were unreasonable and unnecessarily incurred; the court should deny all costs and fees...

Excerpt: ...ary 6, 2019 plaintiff filed a motion for an award of sanctions against both defendants and their attorneys pursuant to Code of Civil Procedure, § 128.7. Plaintiff moves for sanctions against defendants and their counsels in an undisclosed amount on the following grounds: the petitions to vacate the arbitration award contain false statements of fact related to the scope of the arbitration, the personal claims against defendant Furia, the arbitrat...

Excerpt: ...t Amended Verified Complaint that the parties entered into a written agreement in 2012, which provided that it had an interest in Defendant, and the property of Defendant. In its moving papers, Defendant admitted that Plaintiff and Defendant formed a company “to own and operate” the Hotel Property (Motion, page 10, line 16). Defendant further admits that it “exercised its contractual right in December 2017 to purchase” Plaintiff's interes...

Excerpt: ...omplaint. Default was entered on October 29, 2018. The proof of service of the request for entry of default declares that on October 29, 2018 the request was served on defendants B.A.D., LLC and Robinson by mail to the address where the summons and complaint were served. On January 25, 2019 a default judgment was entered against defendants in the amount of $16,151.50. On April 11, 2019 defendant filed the motion to set aside the default and defau...

Excerpt: ...hlin was denied on May 7, 2019. As such, there is no basis to stay any matters pending resolution of that motion. Additionally, Code of Civil Procedure § 404.5 pertains to the coordination of cases, which is not applicable here. Defendant's Motion to Expunge Lis Pendens Pending is a motion to expunge lis pendens by defendant California Department of Veteran Affairs. The motion is opposed. 1. LEGAL PRINCIPLES RE: LIS PENDENS A lis pendens is a re...

Excerpt: ...manufacturing and designing the subject motorhome, which allegedly resulted in an explosion and flames coming up the side of the motorhome while plaintiff Tousely was driving his motorhome on the freeway. Manchester Tank and Equipment Co. (Manchester) was named as defendant Doe 3 on May 20, 2018. On January 17, 2019 defendant/cross‐complainant Arden High Tech Auto Repair, Inc. filed a cross‐ complaint against defendant/cross‐defendant Manch...

Excerpt: ... defendants' conduct after Ms. Crowley admittedly defaulted on the loan payments at the beginning of 2016 as a result of her household income being drastically reduced when she was laid off from her employment. (See Complaint in Case Number PC‐20180623, paragraph 12.) Defendants allegedly failed to discuss alternatives to foreclosure, failed to assess her financial situation, failed to advise her of a right to request a meeting with defendants ...

Excerpt: ...from defendants' conduct after Ms. Crowley admittedly defaulted on loan payments at the beginning of 2016 as a result of her household income being drastically reduced when she was laid off from her employment. (See Complaint in Case Number PC‐20180623, paragraph 12.) Defendants allegedly failed to discuss alternatives to foreclosure, failed to assess her financial situation, failed to advise her of a right to request a meeting with defendants ...

Excerpt: ...nd the common counts causes of action of open book account and account stated. The proofs of service declare that notice of the hearing was served by mail to defense counsel on January 7, 2019 and the moving papers were served on January 2, 2019 by overnight delivery to defense counsel. There is no opposition to the motion in the court's file. “For purposes of motions for summary judgment and summary adjudication: ¶ (1) A plaintiff or cross‐...

Excerpt: ...int with ten days leave to amend and denied the motion as it sought to strike the prayer for attorney fees and certain costs. Defendant/Cross‐Complainant Altoonian did not amend the cross‐complaint. On January 14, 2018 defendant/cross‐complainant Altoonian filed a motion for leave to file a 1st amended cross‐complaint to add allegations and prayers for an award of attorney fees and costs under the legal theories set forth in Code of Civil...

Excerpt: ...sts for admission, to provide further responses to form interrogatories, to provide a privilege log related to documents sought to be produced that defendant claims are privileged, and to provide further responses and production of those documents requested to be produced, with the exception of those documents identified in the privilege log; defendant was also ordered to provide the further responses and production within ten days and pay moneta...

Excerpt: .... (B) Realogy's Demurrer to Second Amended Complaint Visiting Judge David DeVore continued the May 3 hearing on Realogy's demurrer to May 17. Appearances are required for oral argument regarding the May 3 tentative ruling sustaining the demurrer without leave to amend. (C) Tahoe Realty Group's Demurrer to Second Amended Complaint Plaintiff Jeanne Kysar‐Carey's Second Amended Complaint (“SAC”) asserts 19 causes of action against a host of de...

Excerpt: ...laintiff and Castaway Properties, a dissolved California LLC. (Compl., ¶¶ 14–15; Mot., Ex. 1, p. 8, ¶ 22.) Castaway Defendants cannot compel the other parties in this litigation to mediate and/or arbitrate based upon a Purchase Agreement to which they were not parties. Additionally, the statutes cited by Castaway Defendants in support of the motion, Code of Civil Procedure §§ 1281.2 and 1281.4, pertain to arbitration, not mediation. Additi...

Excerpt: ...suant to Code of Civil Procedure, § 36(b) on the following grounds: minor plaintiff Dylan B. is four years old and has a substantial interest in the action. Notice of the March 14, 2019 hearing on the motion for preference and the moving papers were served by mail to defendant Select Property Management, Inc. There was no opposition to the motion in the court's file and the motion was granted. Therefore, trial must be set to commence within 120 ...

Excerpt: ...ased upon new facts or, alternatively, for relief under Code of Civil Procedure § 473 based upon excusable mistake. Plaintiff's motion for reconsideration is granted. Upon reconsideration, the court will vacate its prior decision and enter a new order denying Nationstar's motion for order finding no right to a jury trial. California's constitutional history reflects a steadfast commitment regarding litigants' right to a civil jury trial, with li...

Excerpt: ... is a fatal defect as a misjoinder of parties within the meaning of Code of Civil Procedure, 430.10(d); the fraud based causes of action are fatally defective, because plaintiffs have failed to allege damages as a result of the alleged fraudulent conduct; the fraud based causes of action are vague, ambiguous, and uncertain in that they fail to plead facts with the required specificity to establish each of the elements of those causes of action; t...

Excerpt: ...ited to, insect and rodent infestation, mold, fungus, and asbestos. Pending is defendant Realogy Holdings' (“Realogy”) demurrer to the fourth, fifth, sixth, eleventh, and twelfth causes of action. 1. Standard of Review A demurrer is directed at the face of the complaint and to matters subject to judicial notice. (Code of Civ. Proc. § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the plaintiff's all...

Excerpt: ...led a verified complaint for (1) summary order under Corporations Code § 7511, subdivision (c); and (2) declaratory relief. Pending is defendant Tahoe Beach and Ski Club Owners Association's (“the Association”) demurrer to the entire complaint. 1. STANDARD OF REVIEW A demurrer is directed at the face of the complaint and to matters subject to judicial notice. (Code of Civ. Proc. § 430.30, subd. (a).) “It is not the ordinary function of a ...

Excerpt: ...UCC filings to send acknowledgments to the Angela Kim Carleton Trust and Deryl C. Zeleny. Default was entered against the respondents on February 26, 2019. On March 28, 2019 the court granted a default judgment striking and releasing the UCC liens and awarding petitioners attorney fees and costs in the amount of $12,835.50. Respondent Zeleny filed a motion to vacate and dismiss the complaint for fraud upon the court on behalf of both respondent Z...

Excerpt: ...nt would not release the vehicle to him without payment of an undisclosed amount by cashier's check. On April 5, 2019 the court reviewed plaintiffs' ex parte application for a temporary restraining order and preliminary injunction to prevent defendant Orchid Management from selling the vehicle to obtain payment for the purported disputed debt and to prevent the defendant DMV from transferring title pursuant to any such sale. The court granted the...

Excerpt: ...r 2016 the parties agreed to the following: the Oregon litigation between the parties would be dismissed without prejudice; plaintiff would refile the case in El Dorado County; defendants would appear and accept jurisdiction in El Dorado County; the parties will mediate the dispute; and if mediation fails, the parties will promptly submit to an arbitration of the dispute, which will be binding and not appealable. On February 14, 2018 the court gr...

Excerpt: ...ge in certain activities related to the subject real property. On August 27, 2018 respondent Rawat filed a notice of appeal from that order, which remains pending in the Third District Court of Appel. The filing of the appeal does not automatically stay the order appointing the receiver. “The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from appoints a receiver,...

Excerpt: ...ty against defendant Milgard. Plaintiffs argue that they should be granted leave to amend for the following reasons: the facts or evidence that will support the causes of action for negligence and strict liability will be the same or similar to those facts used to support the claim for breach of express warranty against defendant Milgard; there is no surprise or prejudice to defendant by permitting the amendment; and depositions have not yet been...

Excerpt: ...ficient particularity a cause of action for dangerous condition of public property, because plaintiff failed to allege that the cause of action was premised upon Government Code, § 835. Plaintiff opposes the demurrers on the following grounds: the allegations of the general negligence cause of action sufficiently state a cause of action for a dangerous condition of public property; the facts alleged in the premises liability cause of action are ...

Excerpt: ...possession on March 15, 2019, the court denied the claim. Bankruptcy Stay The court was informed on January 30, 2019 that the motion to stay and motion for relief from the automatic stay were set for hearing before the bankruptcy court on February 12, 2019. At the hearing on January 30, 2019 the court referred to Lee v. Baca (1999) 73 Cal.App.4th 1116, 1119‐1122 for the proposition that a bankruptcy petition filed after entry of judgment does n...

Excerpt: ...ffs move to advance the trial date to be set within 120 days of May 24, 2019. Plaintiffs contend that there exists good cause to advance the trial date, because plaintiffs are suffering emotional distress and financial hardship from the litigation due to two last minute trial continuances. Defendants DeVincenzi and DeVincenzi and Associates, Inc. (DeVincenzi) oppose the motion on the following grounds: the interest of justice is not served by gra...

Excerpt: ..., 2018 order compelling the deposition. Plaintiffs also seek an award of $5,400 in monetary sanctions against defendant. Defendant Seymour West, LLC opposes the motion on the following grounds: plaintiffs failed to comply with the procedural requirements to maintain an action for civil contempt in that they failed to apply for issuance of an OSC Re: Contempt; defendant Seymour West, LLC is not in contempt, because the facts establish defendant ha...

Excerpt: ...egations of the complaint and asserted two affirmative defenses that plaintiff had not complied with CEQA or NEPA requirements by failure to adequately consider and mitigate effects of the public project on defendant's property with respect to ingress and egress of vehicles onto the widened public highway. On February 8, 2019 defendant MHS Ponderosa Limited Partners filed a motion for leave to file an amended answer and a cross‐complaint. Defen...

Excerpt: ...overning practice in civil actions generally apply to [partition] actions under this title except where they are inconsistent with the provisions of this title.” (Code of Civ. Proc. § 872.030.) The party moving for summary judgment bears the initial burden of making a prima facie showing of the nonexistence of a triable issue of material fact, and only if the moving party carries the initial burden does the burden shift to the opposing party t...

Excerpt: ...nment Code, § 815, because promissory estoppel is a common law claim and there is no specific statutory authority alleged in the complaint that declares governmental entities are liable for promissory estoppel; defendant County is immune from liability for the alleged misrepresentation related to leave coverage under Government Code, § 818.8; the failure to accommodate cause of action is fatally defective in that plaintiff admits her doctor adv...

Excerpt: ...e motion, ordered that venue be changed to the Los Angele County Superior Court, and ordered plaintiff to pay defendant $2,490 in attorney fees and costs incurred to pursue this motion. On January 9, 2019 plaintiff filed this motion to vacate the order pursuant to the provisions of Code of Civil Procedure, § 473(b). Plaintiff contends the order granting the motion was due to mistake, inadvertence, surprise, or excusable neglect due to the follow...

Excerpt: ... of the Board as mandated by Public Resources Code, § 21167.6(a) and Code of Civil Procedure, § 416.50. Respondent County also moves to dismiss the action with prejudice on the grounds that petitioner failed to properly serve respondent County within ten days of filing the petition as required by Public Resources Code, § 21167.6(a); and/or the action is barred by the applicable statute of limitations as it was not timely filed. Petitioner oppo...

Excerpt: ...rt to order the parties to the agreement to arbitrate a dispute. The court shall order arbitration, unless it determines that the right to compel arbitration has been waived by petitioner, that grounds exist for rescission of the agreement, or that a party to the agreement is also a party to a pending court action or special proceeding with a third party. “Such a petition essentially seeks specific performance of the arbitration agreement. [Cit...

Excerpt: ...y function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading.” (Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213 [197 Cal.Rptr. 783].) All properly pleaded allegations of fact in the complaint are accepted as true, but not the contentions, deductions, or conclusions of fact o...

Excerpt: ... Trustees of the Michael S. and Lori W. McKeen Family Trust; and John Cefalu and Judy Cefalu, individually and as Trustees of the Cefalu Family Revocable Trust. PRELIMINARY MATTERS Plaintiff raises two procedural objections to the demurrer. First, plaintiff argues the demurrer is defective because defendants did not file the actual demurrer. That objection is well taken. At a minimum, the papers filed in support of a demurrer must include the dem...

Excerpt: ...sponses to plaintiff's form interrogatories and request for production of documents. (Id., Ex. 2.) She objected to disclosure of the subject report on the basis of attorney‐client privilege and work‐ product doctrine, and declined to produce the report. (Ibid.) In a letter to defendant's attorney dated October 12, 2017, plaintiff's attorney raised the issue of the report, arguing that he believed he was legally entitled to it and that any pri...

Excerpt: ...rict. Now pending is the Resort Defendants' demurrer to plaintiffs' First Cause of Action for Negligence/Premises Liability/Failure to Warn. The demurrer is made on the basis that the First Cause of Action fails to state facts sufficient to constitute a valid cause of action because: (1) the Resort Defendants did not owe any legal duty to warn of or protect plaintiffs from alleged dangers on adjacent property that the Resort Defendants did not ow...

Excerpt: ...cluding “Errors and Omissions, negligence, etc.” (Def.'s Mot. at 6:16–23.) Defendant states that Alling “refused to provide the insurance information.” (Id. at 6:24–25.) The discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well‐established causes for denial.” (Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 377 [15 Cal.Rptr. 90].) The test of discovera...

Excerpt: ...ion for order granting leave to file a first amendment to the answer. Defendant contends that as a result of a ruling made by the Probate Court in December 2018 regarding decedent's estate, additional meritorious affirmative defenses have arisen. Plaintiffs are opposed on the basis that the motion does not comply with rule 3.1324, subdivision (b), of the California Rules of Court. “The court may, in furtherance of justice, and on any terms as m...

Excerpt: ... removing or damaging the rock wall and/or otherwise interfering with Mr. Sebring's use of the Road Easement.” (CrossCompl. at 5:17–19.) 1. BACKGROUND Sebring and Bernstein own property in the Diablo Hills subdivision, El Dorado Hills, California. Sebring is the owner of Parcel B and Bernstein is the owner of Parcel A, as shown on the Parcel Map filed in the Office of the County Recorder, El Dorado County, in 1978. (Cross‐Compl., ¶ 1; Decl...

Excerpt: ...ant was served with the moving papers by mail on September 25, 2018. The hearing on the motion was set for October 26, 2018. On October 22, 2018, plaintiff's attorney filed a declaration stating that on September 24, 2018, her office received from defendant the responses to plaintiff's requests for admissions. Also on October 22, the court received a letter from defendant requesting that the October 26 hearing be vacated because he had served his...

Excerpt: ...ement.” (CrossCompl. at 5:17–19.) 1. BACKGROUND Sebring and Bernstein own property in the Diablo Hills subdivision, El Dorado Hills, California. Sebring is the owner of Parcel B and Bernstein is the owner of Parcel A, as shown on the Parcel Map filed in the Office of the County Recorder, El Dorado County, in 1978. (Cross‐Compl., ¶ 1; Decl. of Michael W. Thomas, Ex. A.) There is a 50' wide nonexclusive road and public utilities easement tha...

Excerpt: ...rida. “Article IV, section 1 of the United States Constitution provides that ‘[f]ull Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.' ‘It has long been the law that “the judgment of a state court should have the same credit, validity, and effect in every other court in the United States, which it had in the state where it was pronounced.” [Citations.]' [Citation.] ...

Excerpt: ...s Second Amended Complaint (“SAC”), filed November 5, 2018, asserts 10 causes of action against defendants Clear Recon Corp. and Ditech Financial (“Ditech”). Pending is Ditech's demurrer to the SAC. 1. STANDARD OF REVIEW A demurrer is directed at the face of the complaint and to matters subject to judicial notice. (Code of Civ. Proc. § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the plaintiff...

Excerpt: ...iff alleges the defendants intentionally concealed, did not detect, or withheld knowledge regarding extensive problems with the home, including, but not limited to, insect and rodent infestation, mold, fungus, and asbestos. Pending are demurrers from two groups of defendants, as well as a motion to strike portions of the FAC. For simplicity's sake, the court will refer to these groups as the Nelson Group1 and the Tahoe Realty Group2. A. NELSON GR...