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: ...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: ..., 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: ...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: ... 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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ..., ¶ 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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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...