Excerpt: ...in Tahoma, California, in July 2017. Plaintiff's First Amended Complaint (“FAC”) asserts causes of action (“C/A”) for (1) breach of contract, (2) breach of fiduciary duty, (3) breach of implied covenant of good faith and fair dealing, (4) intentional misrepresentation, (5) fraud, (6) negligence, (7) negligence of notary public and sureties, (8) conspiracy, (9) personal injury, and (10) vicarious liability against Old Republic Title Holdin...

Excerpt: ...o quash or modify document request numbers 1–3 served on Broadstone Land, LLC (“Broadstone” or “landlord”), which is the landlord for FWB Palladio. On August 14, 2020, plaintiff served a business record subpoena on Broadstone. (Ibid.) Defendant's landlord is not a party in this action and has no connection to defendant FWB. (Id., ¶ 4.) The subpoena seeks FWB Palladio's application to lease property; any documents Broadstone reviewed in...

Excerpt: ...y's fees based on actual time expended pursuant to Civil Code § 1794(d) as stipulated by the parties or, if the parties cannot agree, upon motion to the court having jurisdiction over this action.” Civil Code § 1794 provides in part: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's...

Excerpt: ...dure §§ 435– 437. The motion is made on the basis that the complaint is improper and violates the provisions of Civil Code § 47(b) regarding privileged publications or broadcast in a judicial proceeding. A motion to strike is generally used to address defects appearing on the face of a pleading that are not subject to demurrer. (Pierson v. Sharp Mem. Hosp. (1989) 216 Cal.App.3d 340, 342.) Relevant here, a complaint that alleges facts amounti...

Excerpt: ...e, shoulder, and hip. Physical therapy is ongoing for knee, hip, and back. PTSD may require additional/ongoing treatment.” (Decl. of David Streza in Support of Defendants' Motion, Ex. A, p. 2, item no. 6.7.) In addition, plaintiff is asserting a claim for loss of income and earning capacity in the amount of $480,000. (Id., item no. 8.8.) On June 10, 2020, defendants served plaintiff via electronic service with a Second Amended Notice of Taking ...

Excerpt: ... Special Interrogatories (Set One), and (3) Request for Production of Documents (Set One), on each plaintiff by U.S. Mail via their shared attorney. Their responses were due by December 19, 2019. None of the plaintiffs served verified responses on defendant. When no responses were received, defendant's counsel sent a meet and confer letter (dated Dec. 27, 2019) to plaintiffs' counsel. Thereafter, on February 14, 2020, defendant filed separate mot...

Excerpt: ...monetary sanctions in the amount of $8,990.00. In opposition, plaintiff asserts that because he has now provided further responses addressing the alleged defects set forth in defendants' motion and has provided verifications, defendants' motion is now moot. The court disagrees. Even if plaintiff has now served code‐compliant verified responses to defendants' discovery requests, such action does not preclude the court from considering defendants...

Excerpt: ...effect as a general demurrer. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146.) If the moving party is a plaintiff, the motion raises the legal issue of whether “the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code of Civ. Proc. § 438, subd. (c)(1)(A).) Here, defendant's answer does not state facts s...

Excerpt: ... cause, physical and emotional injury. Plaintiff complained about the bedbugs to defendants' managers and agents, but they failed to abate the infestation. Plaintiff's complaint asserts causes of action for (1) breach of implied warranty of habitability, (2) battery, (3) negligence—premises liability/failure to warn, (4) nuisance, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) breach of con...

Excerpt: ...y Properties, LLC; and (2) plaintiff Brad Jacobson's motion to submit tardy expert witness information pursuant to CCP § 2034.710. By way of background, plaintiff commenced this action on April 22, 2018. The initial trial date was set for June 22, 2020. On April 13, 2020, plaintiff's counsel served a demand for expert witness disclosure. (Defs. Exhibits in Support of Motion, Ex. A.) Plaintiff's demand indicated the date of the exchange was May 1...

Excerpt: ...� 1983; (2) violation of the privileges and immunities clause (Cal. Const., art. I, § 7); (3) writ of mandate (Code of Civ. Proc. (“CCP” § 1085); (4) declaratory relief (Gov't Code § 11350(a), CCP § 1060); (5) injunctive relief; (6) conversion; (7) writ of administrative mandamus (CCP § 1094.5); (8) damages (CCP § 1095, 42 U.S.C. § 1983). Pending is the City's demurrer to the AXC and motion to strike portions of the AXC. 1. STANDARD OF...

Excerpt: ...evailing on the contract shall be the party who recovered a greater relief in the action on the contract.” (Civ. Code § 1717, subd. (b).) Where the judgment is a “simple, unqualified win” on the contract claim, a trial court has no discretion to deny an attorney fee award to that prevailing party under Civil Code § 1717. (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) While the fee awards should be fully compensatory, the trial court's role is...

Excerpt: ... like this case, “the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” (Code of Civ. Proc. § 395 subd. (a); see also Cholakian & Assocs. v. Super. Ct. (2015) 236 Cal.App.4th 361, 367–368.) As all the defendants reside in Placer County, the proper court for this action is the Placer County Superior Court. Defendants also request sanct...

Excerpt: ...tion, [defendant] offers to pay reasonable costs, expenses and attorney's fees based on actual time expended pursuant to Civil Code § 1794(d) as stipulated by the parties or, if the parties cannot agree, upon motion to the court having jurisdiction over this action. [¶] Except as set forth herein, above, each party shall bear its own attorneys' fees and costs of suit. Plaintiff may accept the above offer by signing the following statement that ...

Excerpt: ... Request for Production of Documents (Set One) on both plaintiffs by certified mail. No responses were received by the deadline. Thereafter, defendants filed a motion to compel plaintiffs' responses to the discovery requests. Plaintiffs did not serve any responses prior to the hearing on the motion, they did not oppose the motion, and they did not appear at the hearing on March 20, 2020. The court granted defendants' motion to compel responses an...

Excerpt: ...atories (Set One), and (3) Request for Identification and Production of Documents, and ordered defendant's counsel to pay plaintiff $900 in monetary sanctions under the Discovery Act. That same day, defendant's counsel personally served on plaintiff's counsel defendant's discovery responses, along with a verification that was not attached to any set of responses. On July 9, 2019, plaintiff's counsel received a check for $900. On July 19, 2019, pl...

Excerpt: ..., forced plaintiff to perform work at an unauthorized private property location for the financial benefit of Chavez, which he contends constitutes slave labor and violated his civil rights. Plaintiff further alleges he was forced to buy meals for Chavez, he was left unsupervised, and he was exposed to unsafe working conditions which resulted in personal injuries. Plaintiff's complaint, filed November 27, 2019, alleges causes of action for (1) gen...

Excerpt: ...ner “can do more to emphasize noise limitations” to VHR occupants. 1. PROCEDURAL BACKGROUND Lake Tahoe Properties is a property management company specializing in vacation rental properties. They are the representative/agent for Ismael Pulido and the Pulido Rathwell Trust, the owner of real property located at 889 Rainbow Drive in South Lake Tahoe. (Pet. Opening Br., Ex. A to Ex. 1 (“AR”), AR pp. SC2019011816, SC2019011820.)1 Pulido and p...

Excerpt: ...ner “can do more to emphasize noise limitations” to VHR occupants. 1. PROCEDURAL BACKGROUND Lake Tahoe Properties is a property management company specializing in vacation rental properties. They are the representative/agent for Karen Lienert, the owner of real property located at 716 Clement Street in South Lake Tahoe. (Pet. Opening Br., Ex. A to Ex. 1 (“AR”), pp. AR SC20190117010– 11.)1 Lienert was issued VHR Permit No. 005410 (eff. M...

Excerpt: ...5, 2019, plaintiff's attorney requested a 30‐ day extension to respond because plaintiff had injured herself and needed time to recover. Defendant agreed to the 30‐day extension. Plaintiff did not serve any verified responses prior to the deadline. Rather, plaintiff served unverified responses on defendant on January 23, 2020, the same day defendant filed its motions to compel responses to discovery requests. Furthermore, plaintiff did not se...

Excerpt: .... 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 conduct. A demurrer tests only the legal sufficiency of the pleading.” (Comm. on Children's Television, Inc. v. Gen. Foods Corp. (19...

Excerpt: ...set a hearing for a default judgment prove‐up. On June 11, 2020, Liu filed an ex parte application to vacate entry of default and to vacate the hearings on plaintiff's motion for attorney fees and the default judgment prove‐up. The court then scheduled a hearing on Liu's application for July 10, 2020, on a regular Law and Motion calendar. The parties have fully briefed the pending application for relief from default. Liu's application is made...

Excerpt: ...igence per se, (3) violation of a non‐delegable duty, (4) failure to maintain a safe workplace, and (5) loss of consortium. Now pending is SMC's motion for summary judgment or, alternatively, summary adjudication on the basis that the complaint is subject to the workers' compensation exclusivity provisions of the Workers' Compensation Act, Labor Code §§ 3600, et seq., and the Privette doctrine, which bars contractor liability for injuries sus...

Excerpt: ...respond because plaintiff had injured herself and needed time to recover. Defendant agreed to the 30‐day extension. Plaintiff did not serve any verified responses prior to the deadline. Rather, plaintiff served unverified responses on defendant on January 23, 2020, the same day defendant filed its motions to compel responses to discovery requests. Furthermore, plaintiff did not serve verifications prior to the hearing on February 21, 2020, she ...

Excerpt: ... aside the Settlement Agreement referenced in the Stipulation, also dated as of March 4, 2020. The Set‐Aside Order also directed the court clerk to set an unlawful detainer trial date in accordance with the various emergency orders issues by the Judicial Council relating to the COVID‐19 health crisis. The orders memorialized in the Set‐Aside Order were made at a hearing held on April 1, 2020. That same day, the court scheduled the trial for...

Excerpt: ...rcki died as a result of the collision. Presently before the court is a Petition to Approve Compromise of Disputed Claim, filed on behalf of the Claimant by her mother and guardian ad litem. The petition states the Claimant suffered pain in her head, low back, right knee, and legs as a result of the collision. Following the incident, she was evaluated at the emergency room. The Claimant has recovered from the effects of the collision and there ar...

Excerpt: ...ociation's motion for attorney fees in the amount of $51,052. Wanamaker became the owner of a unit in the Association's complex on January 9, 2019, after his mother passed away. As a member of the Association, Wanamaker was subject to the Association's governing documents. This was an action to enforce the governing documents. Civil Code § 5975 provides that “[i]n an action to enforce the governing documents, the prevailing party shall be awar...

Excerpt: ...led that motion, defendant served Special Interrogatories to Setter Construction (Set Two), which is comprised of an additional 81 interrogatories. (Plaintiff's Ex. 5.) Defendant served with both sets of special interrogatories the Declaration of Eric Miller in Support of Additional Discovery. (Id., Exs. 2, 6.) On January 29, 2020, plaintiff filed a second motion for protective order, to include Special Interrogatories (Set Two). “When interrog...

Excerpt: ...writ of habeas corpus. The caption on the first page of the petition states, “In the Supreme Court of the State of California.” A copy of the petition was submitted to the trial court. Apparently construing the petition as having been filed in this court, it was assigned to a visiting judge for determination. In an eight‐page decision filed October 5, 2018, the petition was denied. On February 27, 2019, the California Supreme Court denied r...

Excerpt: ...bruary 14, 2020, to April 10, 2020. Trial is set to begin on June 8, 2020. The court reviewed the email and written correspondence that took place between the parties about the depositions. On June 7, 2019, defense counsel emailed plaintiffs' counsel to follow‐up on deposition dates. (Decl. of M. Schwartz, Ex. B, p. 1.) Plaintiffs' counsel did not respond to that email. (Id., Ex. B, p. 3.) On July 16, 2019, plaintiffs' counsel's secretary email...

Excerpt: ...ba Buckingham Properties Lake Tahoe, Monique Hill, Marni Coyle, and Carl Fair. 1. STANDARD OF REVIEW RE: DEMURRER 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 conduct. A demurrer tests only the legal suf...

Excerpt: ...urred or where any defendant resides at the commencement of the action. (Id. § 395, subd. (a).) The moving party has the burden of negating the plaintiff's choice of venue, which is presumptively correct. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 928– 929 [184 Cal.Rptr. 296]; Tutor‐Saliba‐Perini Joint Venture v. Superior Court (1991) 233 Cal.App.3d 736, 744 [285 Cal.Rptr. 1].) Under section 395, venue in this action co...

Excerpt: ...ed Complaint. Defendant is opposed. Leave of court is required to amend any pleading except as provided by Code of Civil Procedure § 472. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading .…” (Id. § 473, subd. (a)(1).) A trial court may allow the amendment of a pleading at any time up to and including trial. (Id. § 576.) “It is well established that California courts have ...

Excerpt: ...n (f).” (Code of Civ. Proc. § 631, subd. (a).) Pursuant to subdivision (f), a party waives a jury trial by: (1) failing to appear at the trial; (2) written consent filed with the clerk or judge; (3) oral consent, in open court, entered in the minutes; (4) failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set wi...

Excerpt: ... passport had been produced after the motion was filed but prior to the hearing. On October 15, 2019, the court found as moot the motion to compel further response, but sanctioned defendant $810 for failing to timely serve a verified response, which necessitated the filing of the motion by plaintiff. The court ordered that the sanction be paid within 20 days of the date of the order. In her instant motion, filed November 6, 2019, plaintiff indica...

Excerpt: ... a motion for judgment on the pleadings admits, for purposes of the motion, the truth of all material facts that have been pleaded. (Consol. Fire Prot. Dist. v. Howard Jarvis Taxpayers' Ass'n (1998) 63 Cal.App.4th 211, 219 [73 Cal.Rptr.2d 586].) The motion raises the legal issue of whether the complaint states a cause of action regardless of the existence of triable issues of fact. (Brownell v. Los Angeles Unified Sch. Dist. (1992) 4 Cal.App.4th ...

Excerpt: ...aintiff's property line) of the circular traffic control device at the corner of Sierra Boulevard and Rose Avenue to the property line.” (Pl. Proposed Order on Application for a Preliminary Injunction.) 1. LEGAL PRINCIPLES RE: PRELIMINARY INJUNCTIONS In considering a motion for preliminary injunction, “a court must weigh two ‘interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the re...

Excerpt: ... & Jillson (“Alling”) is denied. It is unnecessary to deem the SOS as the agent for process when defendant knows where to serve documents on Alling, as well as who may accept service of the documents on behalf of Alling, and Alling has agreed to accept service. Defendant is referred to Code of Civil Procedure §§ 415.20, 415.40, and 416.10, and Corporations Code § 17701.16 regarding service of process on an out‐of‐state limited liabilit...

Excerpt: ...iff's motion for summary judgment or, alternatively, summary adjudication, against defendant Simms. The matter was originally heard on June 21, 2019. The motion was denied without prejudice because plaintiff presented no evidence that it served the pre‐lien notice on defendant as required by Civil Code § 5660. Plaintiff has now remedied that oversight. (See Pl.'s Separate Stmt. of Undisputed Facts, ¶ 3.1.) 1. STANDARD OF REVIEW “A plaintiff...

Excerpt: ...e interim harm to the parties from issuance or nonissuance of the injunction.” (Butt v. State of Cal. (1992) 4 Cal.4th 668, 677–678 [15 Cal.Rptr.2d 480], citing Common Cause v. Bd. of Supervisors (1989) 49 Cal.3d 432, 441–442 [261 Cal.Rptr. 574].) The trial court is to weigh “the potential‐merit and interim‐harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.” (Butt,...

Excerpt: ...requests. The motion is granted on the basis that the responses were not properly verified. The verification is dated March 27, 2019, before defendant even served responses to the discovery on June 21, 2019. (Decl. of Mark L. Bissonnette, Ex. 2.) Furthermore, the verification provided was not attached to the responses and appears to be a generic verification to “discovery responses.” (Id., ¶ 7.) A generic verification defeats the purpose of ...

Excerpt: ...on, 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. [Citation.] ‘In determining whether an arbitration agreement applies to a specific dispute, the co...

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: ...esent, and potential future claims. (Defs. Mot., 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 instant motion was filed on June 14, 2019, and the hearing was set for July 26, 2019. Plaintiff did not file an opposition to the motion prior to the hearing. Rather, plaintiff appeared at the original hearing on July 26 and...

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: ...ion to strike portions of the complaint filed by Meyers Station, Inc., dba Buckingham Properties Lake Tahoe, Monique Hill, Marni Coyle, and Carl Fair. 1. STANDARD OF REVIEW RE: DEMURRER 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 h...

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: ...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: ...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...