Excerpt: ...inds that: (1) plaintiffs have established every element of the fourth cause of action in plaintiffs' second amended complaint against National for negligence; and, (2) National has failed to show that a triable issue of one or more material facts exists as to this cause of action, or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(1); Civ. Code, § 1714; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Ladd v. County of San ...

Excerpt: ...t, in May and June 2022, respectively, is not a sufficient excuse for the failure of the depositions at issue to have been taken in advance of the current trial date. (Lucas v. George T.R. Murai Farms, Inc. (1993) 15 Cal.App.4th 1578, 1586 [the decision to grant or deny a continuance is committed to the sound discretion of the trial court]; Beckman v. Waters (1911) 161 Cal. 581, 588 [denial of motion to continue trial was not an abuse of discreti...

Excerpt: ...)(2).) However, the Court finds that defendant has failed to meet its burden of proof on the remaining claimed costs in this category. (See Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 624.) Defendant's opposition to the instant motion fails to cite to the specific documents attached to defendant's memorandum of costs (“Memo) supporting the costs claimed, and the documents attached to the Memo fail to make any reference to the item(s) within the...

Excerpt: ...e of Peggy and Joe DeUlloa's Marital Trust's motion for entry of interlocutory judgment of partition and appointment of referee is DENIED. (Code Civ. Proc., § 872.710 et seq.) A co‐owner of property has an absolute right to partition unless barred by a valid waiver. (Orien v. Lutz (2017) 16 Cal.App.5th 957, 962.) The right of partition may be waived by contract, either express or implied. (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, ...

Excerpt: ...r negligence [incorrectly identified as the fifth cause of action] in their first amended complaint (“FAC”) is SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ. Proc., § 430.10, subd. (e); see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) .) The Court finds that plaintiffs have failed to alleged facts sufficient to state this cause of action. (See Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662; Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal. 5th...

Excerpt: ...panel, the panel issued a report in which it found that petitioner violated the UC Davis Policy on Student Conduct & Discipline during an examination in a course she took during the Summer 2021 quarter. (Ibid.) On February 22, 2022, the director of the UC Davis Office of Student Support and Judicial Affairs issued a letter to petitioner indicating that the director was imposing sanctions on petitioner based upon a review of the hearing report. (I...

Excerpt: ...intiff's first cause of action [wrongful/constructive termination] within the verified first amended complaint (“FAC”) is SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ. Proc., § 430.10, subd. (e); see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court finds that this cause of action: (1) was solely brought against former defendant United Parcel Service (“UPS”); and, (2) cannot be maintained against Estrada as an individual/nonemployer d...

Excerpt: ...oup LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825.) The Court declines to rule on plaintiff's evidentiary objections to the declarations of Ed Medina, Ron Hayes, Renee Croswell and Brody Lorda, as the Court did not rely upon the paragraphs and corresponding exhibits challenged in determining the instant motion. The Court SUSTAINS plaintiff's objection to defendants' memorandum of points and authorities (“MPA”) on the ground that it exceeds...

Excerpt: ...ent or quit which overstates the rent due is ineffective and will not support an action for unlawful detainer. (Ernst Enterprises, Inc. v. Sun Valley Gasoline, Inc. (1983) 139 Cal.App.3d 355, 358.) Where, as here, forfeiture of the tenant's lease for non‐payment of rent is one of the objectives of the action, the exact amount of rent claimed to be due must be stated in the notice to pay rent or quit. (Baugh v. Consumers Associates, Limited (196...

Excerpt: ...tion by plaintiff is the legal equivalent of a judgment in plaintiff's favor. (Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 907, emphasis added.) Goodstein v. Bank of San Pedro does not establish a time limit to file a motion for attorneys' fees based upon a compromise agreement reached by the parties. The Court's file does not contain any entry of judgment, dismissal, or proof of service that notice of entry of judgment was served o...

Excerpt: ...he alternative summary adjudication. (Evid. Code, §§ 702, subd. (a), 800, 1200.) It is unnecessary for the Court to reach defendant's evidentiary objections in support of reply. (Evid. Code, §§ 1200, 403, 702.) Defendant's motion for summary adjudication as to the first cause of action (enticement of minors) is DENIED. (Code Civ. Proc., § 437c, subd. (p)(2).) “[T]he unlawful taking or withholding of a minor child from the custody of the pa...

Excerpt: ...ank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court finds that this cause of action: (1) was solely brought against former defendant United Parcel Service (“UPS”); and, (2) cannot be maintained against Estrada as an individual/nonemployer defendant. (Gov. Code, § 12926, 12940, subds. (a), (h); Lab. Code, §§ 98.6, 132a, 1102.5 and 6310; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162 – 1164 [individuals cannot be p...

Excerpt: ...der Continuing Trial, filed September 7, 2022.) That means the last day to have any discovery motion heard was September 19, 2022. (Code Civ. Proc., §§ 2016.060, 2024.020, subd. (a); see Pelton‐Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th , supra, at p. 1572.) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings. (Code Civ...

Excerpt: ... no. 1 is OVERRULED. The Court declines to rule on plaintiffs' other objections as the evidence objected to is not relevant to the disposition of the instant motion. The Court also declines to rule on plaintiffs' objection to the declaration of Matthew Schroeder as the evidence objected to is not relevant to the disposition of the instant motion. The Court further declines to rule on defendants Covenant Care Courtyard, LLC (“Courtyard”), CTR ...

Excerpt: ...nts of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) In the first amended complaint (“FAC”), plaintiff alleges that defendants, as successors in interest to signatory The Money Store (“TMS”), failed to comply wi...

Excerpt: ...nd plaintiff Mark Wang, specifically the Engagement of Legal Services agreement (“Agreement”). (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [Pinnacle]; Compl., ¶ 7, Exhibit 1, ¶ 16.) The Court further finds that plaintiff Kevin Wang, in his capacity as a managing member/owner of Wang Brothers, is a party to the Agreement. (Compl., ¶¶ 1 – 3, 7, Exhibit 1, ¶ 16, Exhibit 4, pp. 5 – 6, ...

Excerpt: ...he motion.”].) The Court declines to rule on defendants' objections to the declarations of Dayna Weishaar and Robert Koehler as the evidence objected to is not germane to the disposition of the instant motion. (Code Civ. Proc., § 437c, subd. (q).) The Court, in its discretion, considers plaintiff's late‐filed reply in support of her motion for summary adjudication. (Cal. Rules of Court, rule 3.1300(d); Rancho Mirage Country Club Homeowners A...

Excerpt: ...amination, or to proceed with it, or to produce for inspection any document,…the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a), emphasis added.) A motion under subdivision (a) shall be accompanied by a meet and conf...

Excerpt: ...ck Roofing, LLC v. Travelers Casualty and Surety Company of America (2019) 413 F.Supp.3d 1122, 1129; McAllister Bros., Inc. v. A & S Trans. Corp., (1980) 621 F.2d 519, 524; Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 380 – 381; see e.g., Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 226 [Pinnacle] [the fact that a person may have either chosen not to read or take the time to understand ...

Excerpt: ...)(2); Gov. Code, § 12940, subds. (a), (h).) Government Code section 12940(a) makes it unlawful for an employer to discharge a person because of their physical or mental disability. (Judicial Council Of California Civil Jury Instruction [“CACI”] 2540.) Section 12940(h) makes it unlawful for an employer to discriminate against a person because that person has opposed a practice forbidden under section 12940. (CACI 2505.) “An employer has tre...

Excerpt: ...ding express warranties. Section 1793.2(d)(2) applies when the manufacturer “is unable to service or repair” the vehicle. Plaintiff's first cause of action alleges that defendant failed to comply with section 1793.2(d)(2). (FAC, ¶¶ 16, 18, 20‐26.) Defendant argues, however, that section 1793.2(d)(2) does not apply because the subject vehicle was not a “new motor vehicle” under section 1793.22(e)(2). (Id., ¶ 7 [“On May 30, 2013, Pla...

Excerpt: ...lligible and fails to state facts sufficient to constitute any clearly identified cause of action. (Code Civ. Proc., § 430.30, subds. (a), (e), (f); see also Cal. Rules of Court, rule 2.112.) If there is a reasonable possibility that the defect can be cured by amendment, it is an abuse of discretion not to grant leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving such reasonable possibility is squarely on the plain...

Excerpt: ...reject late‐filed papers.”].) Defendant Costco Wholesale Membership, Inc.'s motion for attorneys' fees and costs is GRANTED IN PART. (Code Civ. Proc., § 473, subd. (b).) The Court finds the proffered hourly rates reasonable. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009 [“The court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.”]; Shepard decl., ¶¶ ...

Excerpt: ...rial, the Court finds that there is no contract upon which plaintiff may recover attorney's fees. (Code Civ. Proc., §§ 1032, subd. (a)(4), 1033.5, subd. (a)(10); 1717; See Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1104 [in determining whether a party is a prevailing party who can recover costs, the trial court determines whether the party succeeded at a practical level by realizing its litigation objectives and whether...

Excerpt: ...t) or quit which may be enforced by summary legal proceedings, but this notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions. (Kwok v. Bergren (1982) 130 Cal.App.3d 596, 600.) In the context of unlawful 2 of 4 detainers, courts have held that because of an insufficiency of the notice served upon a tenant, the complaint failed to state a cause of action and that the judgment entered...

Excerpt: ...s exceeding the maximum permitted number of pages. Plaintiff's motion for protective order against Thomas F. Rutaganira, Rachel Renno, and Foos Gavin Law Firm, P.C. is DENIED. (Code Civ. Proc., §§ 2030.090, 2031.060.) Plaintiff failed to show “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040, 2030.090, subd. (a), 2031.060, subd. (a); Mitchell decl., ¶ 1; R...

Excerpt: ... McAllister Bros., Inc. v. A & S Trans. Corp. (1980) 621 F.2d 519, 524; Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 380 – 381 [the party seeking arbitration bears the initial burden of demonstrating the existence of an arbitration agreement]; Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 545; see Espejo v. So. Cal. Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1062; see e.g., Pinnacle Museum Tower Assn. v. P...

Excerpt: ...to the conduct of the litigation. (Code Civ. Proc., § 1033.5. subds. (c)(2) – (3).) 2. The motion to strike and/or tax costs as to deposition costs ($26,891.90) is GRANTED IN PART. (Code Civ. Proc., § 1033.5. subd. (a)(3)(A).) The Court finds that plaintiff has failed to meet his burden that the late cancellation fee ($570.00), pertaining to the deposition of plaintiff's expert Paul Herbert, was reasonable and necessary to the conduct of the ...

Excerpt: ...ure on her discovery verification is invalid. (See, e.g., Cal. Rules of Court, rule 2.257; Hunt decl., ¶ 7, Exhibit C.) Further, defendant's response to request for production, no. 1, substantially complies with Code of Civil Procedure sections 2031.210(a) and 2031.220. (Code Civ. Proc., § 2031.310, subds. (a), (b)(1); Hunt decl., ¶ 7, Exhibit C.) Although plaintiff has shown good cause justifying the discovery sought by the demand, plaintiff ...

Excerpt: ...¶ 9.) Defendant failed to make all payments pursuant to the Court's December 29, 2021, order dismissing, without prejudice, the instant action and retaining jurisdiction pursuant to California Code of Civil Procedure 664.6, which was based upon the stipulation for settlement and entry of judgment (“Stipulation”) between the parties filed on December 27, 2021. (Mahfouz II Decl., ¶¶ 5 – 7, 9, Exhibit A.) However, as the parties did not exp...

Excerpt: ... the motion.”].) The Court declines to rule on defendants' objections to the declarations of Dayna Weishaar and Robert Koehler as the evidence objected to is not germane to the disposition of the instant motion. (Code Civ. Proc., § 437c, subd. (q).) The Court, in its discretion, considers plaintiff's late‐filed reply in support of her motion for summary adjudication. (Cal. Rules of Court, rule 3.1300(d); Rancho Mirage Country Club Homeowners...

Excerpt: ...tted document are difficult to read. Regarding Exhibit 4 (“1967 putative agreement” among Alpine County and the South Tahoe Public Utility District, referred to in the cross complaint, without exhibits), it appears multiple pages/paragraphs have been omitted from the copy submitted to the Court. Regarding Exhibit 5 (“1973 agreement” among STPUD and USA, Bureau of Land Management, referred to in the 1967 agreement, without exhibits), there...

Excerpt: ... to the motion.”].) The Court does not reach plaintiff's objections to the declaration of Michael J. Perrotti, Ph.D. Also, the Court declines to rule on plaintiff's evidentiary objections to the video footage submitted by defendants Kenneth Paulson and Barbara Paulson (“defendants”). (Defendants' Compendium of Evidence [“COE”], Exhibit F.) Such evidence is not germane to the disposition of the instant motion. (Code Civ. Proc., § 437c, ...

Excerpt: ...wer does not state facts sufficient to constitute a defense to the complaint. (Ibid.; Plaintiff's RJN, Exhibit A; Pang v. Beverly Hosp., Inc. (2000) 79 Cal.App.4th 986, 989–990; Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 736.) Given defendant's admissions, the defects cannot be cured by amendment. (See Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.) Plaintiff's request for costs is DENIED WITHOUT PREJUDICE....

Excerpt: ...responses to defendant's special interrogatories, set one. (Roy decl., ¶ 10; McCoy decl. ISO reply, ¶ 11.) As a result, defendant is no longer seeking further responses to many of its form interrogatories, set one. (McCoy decl. ISO reply, ¶¶ 11‐13.) Despite agreeing to supply further responses to the form interrogatories still at issue, plaintiff has not provided such responses. (Id., ¶ 15.) Further, plaintiff has not offered any justifica...

Excerpt: ...intiff has satisfied the requirements for mandatory relief under section 473(b). (Martin Potts & Associates, Inc., supra, 244 Cal.App.4th at p. 443; Withee decl.) Specifically, plaintiff's motion was accompanied by an attorney's affidavit attesting to his mistake, inadvertence, surprise, or 2 of 2 neglect, which caused plaintiff's case to be dismissed. (Code Civ. Proc., § 473, subd. (b); see, e.g., Withee decl., ¶¶ 2, 13.) It is irrelevant whe...

Excerpt: ...ess and Professions Code section 2056. SDH has not met its burden to show that a required element of plaintiff's first cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, as modified (July 11, 2001).) It is unnecessary to reach plaintiff's second cause of action as SDH has not established that it is 2 of 7 entitled to judgment as a matter of law. (Code Civ. ...

Excerpt: ...at he has no right to a jury trial with regard to his cause of action based upon Health and Safety Code section 1278.5. (Plaintiff's Memorandum of Points and Authorities, p. 1.) Second, this Court concludes that the gist of plaintiff's cause of action based upon Business and Professions Code section 2056 is equitable, rather than legal, and that plaintiff therefore has no right to a jury trial on that cause of action. Under California law, the ri...

Excerpt: ... party at trial. (See Friends of Spring Street v. Nevada City (2019) 33 Cal.App.5th 1092, 1104 [in determining whether a party is a prevailing party who can recover costs, the trial court determines whether the party succeeded at a practical level by realizing its litigation objectives and whether the action yielded the primary relief sought in the case]; Statement of Decision, p. 17 (“SOD”).) 1. The motion to tax deposition costs ($6,311.75)...

Excerpt: ...923.5 is OVERRULED. (Code Civ. Proc., § 430.10, subd. (e).) The Court finds that plaintiffs Maricela Sanabria and Miguel Sanabria have alleged facts sufficient to state this cause of action. (Civ. Code, § 2923.5; Barrionuevo v. Chase Bank, N.A. (2012) 885 F.Supp.2d 964, 975 – 977, Compl., ¶¶ 13, 22, 23, Exhibit D.) Defendants' demurrer as to the second cause of action for violation of Civil Code section 2924(a)(1) is SUSTAINED WITHOUT LEAVE...

Excerpt: ...ges and finds that [Pruco] is guilty of malice, oppression, or fraud in accordance with Section 3294.” (See also Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777–779.) However, Pruco has failed to establish that this Court should bifurcate the entire punitive damages portion of the trial from the liability portion of the trial. (See Code Civ. Proc., § 3295; Evid. Code, § 352.) Pruco's motion to bifurcate breach of cont...

Excerpt: ...r, and address of the person to whom the rent payment shall be made, and if payment may be made personally, the usual days and hours that person will be available to receive the payment. (Code Civ. Proc., § 1161(2).) Moving defendants have not shown that the Court lacks subject matter jurisdiction or that the complaint is fatally uncertain merely because the 3‐day notice to pay rent or quit provided optional in‐person payment terms and also ...

Excerpt: ...30.10, subd. (f).) As a prerequisite to filing an unlawful detainer action, a tenant must be served with either three, 30, or 90 days' notice, depending on the individual's status as a tenant. (Code Civ. Proc., §§ 1161, 1161a, 1161b; The Bank of New York Mellon v. Preciado (2013) 224 Cal.App.4th Supp. 1, 6.) The notice served upon defendants is not fatally uncertain as it provides sufficient 3‐day notice based upon defendants' legal status as...

Excerpt: ...ek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any matter to be judicially noticed must be relevant to a material issue.”].) Plaintiff Sierra Northern Railway's objections to defendants' request for judicial notice are DENIED AS MOOT, given this Court's ruling on defendants' request for judicial notice. Defendants' demurrer to the complaint is OVERRULED. (Code Civ. Proc., § 430.10, subds. (a), (e).) Defendants demur to pla...

Excerpt: ...z, Jr.'s third cause of action for premises liability is OVERRULED. (Code Civ. Proc., § 430.10, subd. (e).) The Court finds that plaintiffs have sufficiently alleged facts to state this cause of action against Courtyard and CTR. (Kesner v. 2 of 4 Superior Court (2016) 1 Cal.5th 1132, 1159, internal citations omitted; See Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Vasquez v. Residential Investments, Inc. (2004) 118...

Excerpt: ....) The Court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a).) Sun Growers has shown good cause for the proposed defense examination. Plaintiff has placed her mental state in controversy by claiming severe emotional distress. (Complaint, ¶ 33; see Vinson v. Superior Court (1987) 43 Cal.3d 833, 839.) With regard to the standard diagnostic testing ...

Excerpt: ...demurrer to the complaint as to the first cause of action (violation of Civil Code section 2923.6(c)) is SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc., § 430.10, subd. (e).) Civil Code section 2923.6(c) prohibits a mortgage servicer or beneficiary from recording a notice of default or notice of sale, or conducting a trustee's sale “while the complete first lien loan modification application is pending.” However, plaintiff's complaint does ...

Excerpt: ... rule 8.278(d)(1)(D).) Accordingly, this Court cannot determine (a) how much of the requested costs are recoverable and (b) if such recoverable costs are reasonable. (Ibid.) 2. As to item no. 10 for attorney's fees ($1,000.00), petitioner has not filed a noticed motion to claim attorney's fees on appeal as required. (See Cal. Rules of Court, rule 8.278(d)(2), 3.1702(c).) Further, based on the record before the Court, petitioner was never represen...

Excerpt: ...f has failed to show “a reasonable and good faith attempt at an informal resolution” of the discovery dispute prior to filing the instant motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2); Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438; Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) The Court finds that plaintiff's meet and confer efforts were insuffic...

Excerpt: ...cted with substantial justification or that other circumstances make the imposition of attorney's fees and costs unjust.” (Ibid.; Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1018.) Based on the evidence before the Court, the Court does not find that plaintiffs acted with substantial justification or that the imposition of attorneys' fees and costs would be unjust. (Taylor decl., ¶ 2, Exhibit A.) Accordingly, defendants are entitled t...