Excerpt: ... Plaintiff informed Defendant Ryan that Plaintiff needed her job at Short Circuit Electric (SCE) and wanted to keep their relationship professional and not cross any lines. Defendant SCE responded that that Defendant “has insufficient information or belief to answer”. 2. Defendant's First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Fourteenth, Sixteenth, Seventeenth, Twentieth, Twenty‐ First, Twenty‐Fifth, Twent...

Excerpt: ... Plaintiff informed Defendant Ryan that Plaintiff needed her job at Short Circuit Electric (SCE) and wanted to keep their relationship professional and not cross any lines. Defendant SCE responded that that Defendant “has insufficient information or belief to answer”. 2. Defendant's First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Fourteenth, Sixteenth, Seventeenth, Twentieth, Twenty‐ First, Twenty‐Fifth, Twent...

Excerpt: ...plaint on the grounds that they fail to state allegations sufficient to constitute a cause of action against it. The Court rules as follows: 1. FIRST CAUSE OF ACTION ‐ LIBEL: Vicarious liability of County of Amador for action of Defendant Forster, Member of its Board of Supervisors. Sustained without leave to amend for failure to state a valid cause of action necessary to establish vicarious liability against County of Amador for the acts of De...

Excerpt: ...t plead specific facts to establish every element of a cause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) A court should treat a demurrer as admitting all material facts that are properly pled, but need not accept conclusions, contentions or deductions of law or fact. (Blank, 39 Cal.3d at 318.) Plaintiff is required to plead factual allegations addressing the elements of each cause of action. Although pleadings are ...

Excerpt: ...ause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) A court should treat a demurrer as admitting all material facts that are properly pled, but need not accept conclusions, contentions or deductions of law or fact. (Blank, 39 Cal.3d at 318.) Plaintiff is required to plead factual allegations addressing the elements of each cause of action. Although pleadings are to be liberally construed, they must nonetheless set for...

Excerpt: ...ection. Defendant's requests are GRANTED. Demurrer A demurrer challenges the sufficiency of a complaint based on defects that appear on its face or from matters that are subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; CCP §430.10.) To survive a demurrer, a complaint must plead specific facts to establish every element of a cause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) A court should tre...

Excerpt: ...n Department 1. Plaintiff's Motion to file First Amended Complaint is DENIED without prejudice. CRC 1.21(a) provides: “Whenever a document is required to be served on a party, the service must be made on the party's attorney if the party is represented.” (Emphasis added.) Plaintiff filed a proof of service on November 10, 2021 showing Defendant Shawn Karai, dba New York Family Fitness, was personally served with the motion on October 14, 2021...

Excerpt: ...as a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. … (f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of...

Excerpt: ...on new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. CCP §1008(a) (emphasis added). R...

Excerpt: ...al economy, increase potential settlement, and avoid prejudice to Defendant SUN 49er. Defendant argues that due to Plaintiff ADAMS intoxication at the time of the fall, liability is strongly contested, but will only take 5 days or less to try, including jury selection, while the damages issues are more complex, and due to the number of witnesses and expert witnesses, will take closer to 30 to 35 days to try. (Witzman Decl., ¶ 3, ¶ 9.) Defense c...

Excerpt: ...orp. (1992) 4 Cal.App.4th 857, 879.) A court should treat a demurrer as admitting all material facts that are properly pled, but need not accept conclusions, contentions or deductions of law or fact. (Blank, 39 Cal.3d at 318.) Plaintiff is required to plead factual allegations addressing the elements of each cause of action . Although pleadings are to be liberally construed, they must nonetheless set forth essential facts with reasonable precisio...

Excerpt: ...quest for judicial notice is granted. Motion to Strike Per CCP §436, the court may, upon a motion made pursuant to CCP §435 or at any time in its discretion, strike out “any irrelevant, false, or improper matter inserted in any pleading” or strike “out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Twenty‐First Affirmative Defense: Plaintiff moves ...

Excerpt: ...e of Plaintiff's fax transmission is unsupported by legal authority. Plaintiff's request is DENIED. Timeliness: The court's ruling was served by mail on September 23, 2021. Plaintiff's motion for reconsideration was filed on October 13, 2021 and a “Second Amended” motion for reconsideration was filed on October 14, 2021. Plaintiff attaches a purported copy of the stamped envelope from the court alleging it shows that the ruling was not actual...

Excerpt: ...s is DENIED. 1) Plaintiff's Motion for Order for Forensic Document Examination: Plaintiff's motion alleges that in response to discovery requests, Defendant provided a copy of an “Addendum to Membership Agreement” and that the purported signature of Plaintiff on that agreement is a forgery . Plaintiff now seeks an order that Defendant pay for “all expenditures for the forensic examination”. Plaintiff provides no legal authority for the no...

Excerpt: ... on contracts).) Plaintiff's requests attorneys' fees in the amount of $2,500, pursuant to Civil Code § 1717: (a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specif...

Excerpt: ...ontractor's License pursuant to Ev. Code § 452. (Defendant's P&A's, pg. 7, lines 7‐25.) Plaintiff objects on the grounds that the document (building permit) has not been authenticated and the request does not include the declaration of any witness with personal knowledge of Exhibit A. Further, Defendant offers no authenticated copy of Dave Evans' license. The listing of a name and number on an application for a building permit is not sufficien...

Excerpt: ...s granted. 2. All pleading and papers filed in this case. No objection, Plaintiff's request is granted. 3. The court's order dated April 19, 2021 granting Plaintiff's Motion to Compel the Deposition of Debbie LaVielle and Production of Documents and the court's order dated August 23, 2021, granting Plaintiff's Motion to Compel the Deposition of the PMK regarding Admission and resetting the Motion to Strike and Request for Sanctions to October 4, ...

Excerpt: ...s showing reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (CCP §2016.040.) While the moving party's declaration and the transcript attached show that Mr. Fick did attempt, several times throughout Mr. Faro's deposition, to communicate to Mr. Small that Mr. Faro's conduct was unacceptable, this does not constitute a sufficient meet and confer declaration stating facts showing reasonable and good ...

Excerpt: ...nt.” (Opposition, Exh. 2.) There is no objection. Plaintiff's request for judicial notice should is GRANTED. Law and analysis: Defendant first seeks relief from the judgment under CCP § 473(b), for “mistake”. However, CCP § 473(b) provides, in part, “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made wi...

Excerpt: ...e any Property Levied Upon Pursuant to the Writ filed September 28, 2021 is STRICKEN. California Code of Civil Procedure § 1008 governs motions for reconsideration. Subdivision (a) provides: When an application for an order has been made to a judge, or to a court, and refused in whole or in part… any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or differ...

Excerpt: ...sted as to that tentative ruling and it was adopted by the court on August 9, 2021. “… the pendency of an appeal does not divest the trial court of jurisdiction to determine ancillary or collateral matters which do not affect the judgment on appeal. (Silver v. Gold (1989) 211 Cal.App.3d 17, 26.) Whether a matter is “embraced” in or “affected” by a judgment within the meaning of section 916 depends upon whether postjudgment trial court...

Excerpt: ...s and Restrictions of Jackson View, recorded December 19, 2006 with the Amador County Recorder as Document No. 2006‐0014765‐00. (Defendant's RJN Exh. B.) 3. Deed of Trust, recorded June 29, 2007, with the Amador County Recorder as Document No. 2007‐0007342‐00. (Defendant's RJN Exh. C.) 4. Modification of Deed of Trust, recorded December 31, 2007, with the Amador County Recorder as Document No. 2007‐0013669‐00. (Defendant's RJN Exh. D....

Excerpt: ...e Code §§ 452(b)(g)(h). (Defendant's Accompanying Statement of Evidence, Exh. 11.) 4. At all times relevant, Dr. Robert Russell was Superintendent of the Amador County Office of Education pursuant to Evidence Code §§ 452(g)(h). 5. At all times relevant, Dr. Amy Slavensky was Superintendent of the Amador County Unified School District pursuant to Evidence Code §§ 452(g)(h). 6. On April 28, 2020, Plaintiff filed a complaint alleging sexual ha...

Excerpt: ...lified Regarding the History of Centerline Rumble Strips on State Route 16 2. Motion to Compel the Deposition of Caltrans Person Most Qualified Regarding the Roadway Departure Safety Implementation Plan and Centerline Rumble Strips 3. Motion to Compel the Deposition of Caltrans Custodian of Records These matters need to be discussed at the hearing on August 19, 2021. In reviewing the three motions, the defendant Department of Transportation throu...

Excerpt: ...at the trial court shall take judicial notice of any matter specified in Section 452 if the party requests it and: Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and furnishes the court with sufficient information to enable it to take judicial notice of the matter. Plaintiff objects to request for judicial notice of the Order issued by the...

Excerpt: ... the length of time since the incident, the court finds that Defendant's motion needs to be addressed and that Plaintiff should have the opportunity to respond to the legal argument in Defendant RUSHING's Reply. Therefore, the court orders the hearing date is continued to the date above, and that Plaintiff may file further responsive pleadings no later than five (5) calendar days prior to the hearing. Unless a hearing is requested, this ruling is...

Excerpt: ...nt. There are no objections to Defendant's request(s) for judicial notice. Defendant's request is GRANTED. Court rules on evidentiary objections as follows: Opposing party Plaintiff made no evidentiary objections. Moving party Defendant made the following objections to Plaintiff's Statement of Undisputed Facts and Plaintiff's Response to Defendant's Undisputed Material Facts: • Objection No. 1 – UMF's Nos. 1, 2, 3, 5, 6, and 8. Pursuant to CC...

Excerpt: ...nt to Evidence Code § 452(d). Defendants' request for judicial notice is GRANTED. Summary Judgment A plaintiff in an action for unlawful detainer may move for summary judgment; this is wholly consistent with the basic statutory purposes of unlawful detainer – a speedy determination of the right to possession. (Knowles v. Robinson (1963) 60 Cal.2d 620, 625; Gonzales v. Jim Properties (1974) 37 Cal.App.3d 1029.) (Summary judgment process applica...

Excerpt: ...� 29 of the SAC. In summary, paragraphs 23‐29 of the SAC allege negligence per se is presumed from Defendant's violations of applicable building codes requiring sidewalks and curbs conform to specific standards and that the violation was a direct cause of Plaintiff's injury. Negligence per se is an evidentiary doctrine codified at Ev. Code § 669. It creates a presumption of negligence if four elements are established: (1) the defendant violate...

Excerpt: ...but are declarants in Defendants Summary judgment/Summary Adjudication Motion. The court notes, infra, that the Plaintiffs Consolidated Declarations in support of the Motion to Compel are not specific as to the page or paragraph of the Defendant's expert's declarations that are “factually incorrect”. Further, the court declines to search through the declarations of Nelson and Rossetter to determine where the plaintiffs allegations regarding t...

Excerpt: ...s of improper conduct at his last job to defense counsel in cases where officer testified . (Exh. A.) Objection Although the court may take judicial notice of the decision law of another jurisdiction , defendant does not proffer its first two requests for judicial notice for that purpose (there are no citations to the proffered authority in its supporting memorandum of points and authorities.) (See Evid. Code Section 452.) Instead, defendant pres...

Excerpt: ...necessary costs or delay. In support of the motion, Plaintiff argues that the factual issues of both cases are very similar. Dr. Salerno performed a laparoscopic inguinal hernia repair with 3D Bard mesh on both JACK and JUDSON. Both JACK and JUDSON's surgeries failed and both allege they failed because Dr. Salerno failed to properly place the Bard mesh over the hernia defect. Both JACK and JUDSON allege Dr. Salerno dismissed their concerns and re...

Excerpt: ... 137 S. Ct. 1773, 1779.) A California court's ability to exercise personal jurisdiction over a defendant based on contacts with a state depends on the nature and quality of defendant's “contacts” with the state. U.S. Supreme Court decisions recognize two types of jurisdiction: (1) general jurisdiction and (2) specific (or case‐linked or limited). (Bristol‐Meyers Squibb Co., supra at pp.1779‐1780.) Jurisdiction over a defendant can be ei...

Excerpt: ...482.) Demurrer A demurrer challenges the sufficiency of a complaint based on defects that appear on its face or from matters that are subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; CCP §430.10.) To survive a demurrer, a complaint must plead specific facts to establish every element of a cause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) A court should treat a demurrer as admitting all mater...

Excerpt: ...djudication (filed September 2, 2020) as to Plaintiffs' First Amended Complaint (based primarily on which Statute of Limitations applies ‐‐ UCC 3‐118(a) or CCP 337(a)) Determining whether a Statute of Limitations has run or not is ordinarily a question of fact; however, determining which Statute of Limitations applies is a question of law. It is the duty of the trial court to make that determination. (Marron v. Superior Court (2003) 108 Cal...

Excerpt: ...he court, together with an application for determination of good faith settlement and a proposed order. The application shall indicate the settling parties, and the basis, terms, and amount of settlement. The notice, application, and proposed order shall be given by certified mail, return receipt requested. Proof of service shall be filed with the court. Within 25 days of mailing the notice, application, and proposed order, or within 20 days or p...

Excerpt: ...92) 4 Cal.App.4th 857, 879.) A court should treat a demurrer as admitting all material facts that are properly pled, but need not accept conclusions, contentions or deductions of law or fact. (Blank, 39 Cal.3d at 318.) A court may consider judicially noticeable facts in ruling on a demurrer. (CCP §430.30(a); Stormedia Inc., v. Superior Court (1999) 20 Cal.4th 449, 457 n.9.) Plaintiff is required to plead factual allegations addressing the elemen...

Excerpt: ...f the default in the manner set forth in paragraph 2 of the Stipulation for Conditional Entry of Judgment filed December 28, 2015; 2) A record of all payments made by Defendant pursuant to the Stipulation, and; 3) A detailed description as to Plaintiff's efforts to contact Defendant at all known addresses, email and otherwise, in regard to both the notice of the default and the service of the instant motion. Parties are ordered to personally appe...

Excerpt: ...on for summary judgment or summary adjudication of issues, burden is on plaintiff to prove every element necessary to establish its right to relief it seeks and to disprove every affirmative defense asserted against it ; until that point, defendant has no burden to produce opposing evidence or to disprove anything at all. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327.) Plaintiff's points and authorities and separate statement fail ...

Excerpt: ...d within the 10 year period of enforceability provided by CCP § 683.130(a): (a) In the case of a lump‐sum money judgment or a judgment for possession or sale of property, the application for renewal of the judgment may be filed at any time before the expiration of the 10‐year period of enforceability provided by Section 683.020 or, if the judgment is a renewed judgment, at any time before the expiration of the 10‐year period of enforceabil...

Excerpt: ...ght to object, including objections based on privilege or the protection for work product. (CCP § 2031.300(a).) Although Plaintiff did make some attempt to meet and confer before filing the instant motion , meet and confer efforts are not mandatory where no responses whatsoever have been received. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905‐906.) Where no response is received, the party making the demand may move for an order compe...

Excerpt: ... confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer”. Further, the Memorandum is unsigned by Defendant and was improperly served under CCP § 1013. DEMURRER The function of a demurrer is to test the legal sufficiency of a pleading . (Rakestraw v. Cal. Physicians' Servic...

Excerpt: ...nostic and Statistical Manual of Mental Disorders, (DSM‐5), Exhibit 1.3‐4, DSM‐5 Diagnostic Criteria for PTSD pursuant to Evidence Code §§ 452(d)(h). Defendant objects to Plaintiff's request on the grounds of lack of authentication, lack of expert testimony and irrelevance. (Evid. Code §§§ 1400, 720, 122, 210) Objection sustained. Factual Summary On or about January 12, 2020, Defendant, Nadine Raymond, commented on a Facebook post of B...

Excerpt: ...hall be granted when the moving party demonstrates "that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law CCP Section 437c(c). In making its decision the court may rely on affidavits, declarations, or matter of which judicial notice may be taken. CCP Section 437c(b). On plaintiff's motion for summary judgment or summary adjudication of issues, burden is on plaintiff to prove ev...

Excerpt: ...leading . (Rakestraw v. Cal. Physicians' Service (2000) 81 Cal.App.4th 39, 42) In reviewing the sufficiency of a complaint against a general demurrer, the court treats the demurrer as admitting all material facts properly pleaded, as well as matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) However, contentions, deductions or conclusions of fact or law are insufficient to constitute a cause of action . (Id.) Fa...

Excerpt: ... (Rakestraw v. Cal. Physicians' Service (2000) 81 Cal.App.4th 39, 42) In reviewing the sufficiency of a complaint against a general demurrer, the court treats the demurrer as admitting all material facts properly pleaded, as well as matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) However, contentions, deductions or conclusions of fact or law are insufficient to constitute a cause of action . (Id.) “A pleadi...

Excerpt: ...set three) Special interrogatory number 6; Request for production number 11 “List of names and addresses of any provider of a collateral source payments affected by Government Code Section 985; and the amount provided to Richard Prasad from each collateral source” Plaintiff is ordered to provide complete and non‐evasive responses to include any additional provider who provided treatment to Richard Prasad from July 17, 2018 to present. In ad...

Excerpt: ...A and DOES 1 through 10, inclusive, knowingly, willfully, and purposefully operated Defendant's vehicle on the public streets and highways after knowingly, willfully and purposefully ingesting intoxicating substances to the point of legal intoxication. Defendant GARCIA and DOES 1 though 10', inclusive, operation of a vehicle while intoxicated at unsafe speeds and in a reckless manner caused the collusion with Plaintiff 's vehicle. These actions c...

Excerpt: ...E RULING: PART 3 In their Reply, Defendant argues such statements, made in the course of a judicial proceeding, are completely privileged and cannot form the basis for a slander cause of action citing Civil Code § 47 and Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1163. (Reply, p. 2 lines 12‐16) However, the court in Flatley v. Mauro, 39 Cal.4th 299 at 324 did not find the privilege to be so absol...

Excerpt: ...requests the court take judicial notice of the complete record and file in Amador Superior Court Case No . 17 CR 26191‐03 pursuant to Evidence Code §§ 452 and 453. Plaintiff's request for judicial notice is granted as the contents of the file are relevant in showing the conflict between the parties is personal, and not of public interest. Evidentiary Objections – Moving Party Defendant Objection No. 1 – Declaration of Cameron Crocker, p. ...

Excerpt: ...trial on the merits. ( Ramsey Trucking Co. v. Mitchell (1961) 195 Cal.App.2d 621.) “Even in a case where the showing under section 473 is not strong, or where there is any doubt as to setting aside of a default, such doubt should be resolved in favor of the application.” (Rosenthal v. Gardner (1983) 142 Cal.App.3d 891, 898.) Mistake, inadvertence or neglect will warrant relief from a default if, upon consideration of the evidence it is found ...

Excerpt: ...regate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action. Thus, the statute includes a “reasonable attorney's fees” standard. The attorney bears the burden of proof as to reasonableness of any fee claim. CCP §1033.5(c)(5). This burden requires competent evidence as to th...

Excerpt: ...er Andrea C. Sexton. Any party who objects to the Commissioner hearing this matter must notify the court at the time of the hearing. Since no judge will be available for this law and motion calendar, if any party objects, the matter will be continued to March 27, 2020 at 10:00 a.m. in Department 2. Plaintiff's Motion to Compel Defendant's Responses to Interrogatories & Request for Admissions and Deem all Objections Waived and all Matters in Reque...

Excerpt: ...rch 27, 2020, at 10:00 a.m. in Department 2. If there is no objection to the Commissioner, but a party wishes to present oral argument at the hearing, the party must notify the Court in the same manner as indicated above. (See Local Rule 4.03.) If you do not so notify the parties or the Court, the tentative ruling shall become the final ruling. (California Rule of Court 3.1308; Local Rule 4.03.B.) Defendant's demurrer to the Plaintiff's Second Am...

Excerpt: ...verned by the course which seems most likely to accomplish substantial justice. The court finds based on the moving papers that Defendant has not made an affirmative showing of good cause requiring the trial to be continued. The court further notes, although not raised by either party, that no information regarding the exchange of information concerning expert trial witnesses pursuant to the Civil Discovery Act is addressed in the instant motion....

Excerpt: ...i Cavana declaration ¶ 12 –Vague. Lacks foundation and calls for speculation. Irrelevant. Objection sustained. Objection No. 16, Joe Cavana declaration ¶ 4 – Layered hearsay. Lacks foundation and calls for speculation. Irrelevant. Assumes facts not in evidence. Objection sustained. Objection No. 17, Joe Cavana declaration ¶ 4 – Layered hearsay. Lacks foundation and calls for speculation. Irrelevant. Assumes facts not in evidence. Objecti...

Excerpt: ...ctual conclusion, 4) Exhibit A is irrelevant. Objection sustained. Objection No. 2, Terri Cavana declaration ¶ 6 – Hearsay. Objection sustained. Objection No. 3, Terri Cavana declaration ¶ 6 – Hearsay. Lack of foundation for authentication of Exhibit A (Facebook post). Objection sustained. Objection No. 4, Terri Cavana declaration ¶ 6 – Hearsay. Lack of foundation for authentication of Exhibit A (Facebook post), Exhibit A speaks for itse...

Excerpt: ...erly served to Petitioner' s counsel pursuant to CCP §2020.410(c) and CCP §1985.3(g). The documents requested, on their face, are irrelevant to the conservatorship of the person of Lois Herrick, which involves helping her take care of her daily needs, and does not pertain to her finances. The Objector's subpoenas appear to reference Ms. Herrick's well‐being in their stated purpose, but are wide ranging and extensive, invasive of her privacy a...

Excerpt: ...nges the sufficiency of a complaint based on defects that appear on its face or from matters that are subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; CCP §430.10.) To survive a demurrer, a complaint must plead specific facts to establish every element of a cause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) A court should treat a demurrer as admitting all material facts that are properly pled...

Excerpt: ...4) 122 Cal.App.4th 659, 664.) “The exhaustion requirement is jurisdictional: a court cannot hear a case before a litigant exhausts administrative remedies.” (Id. at 664‐665.) The failure to exhaust administrative remedies is the proper basis for a demurrer. (Id. at 671.) A complaint is vulnerable to demurrer on administrative exhaustion grounds when it fails to plead that either administrative remedies were exhausted or that a valid excuse ...

Excerpt: ...tion for preference in trial setting under CCP §36(b) is GRANTED. The court finds that Plaintiffs' motion and accompanying declarations are sufficient to establish that two (2) of the four (4) Plaintiffs are under the age of 14 and have a substantial interest in the action as a whole. Defendants offer no legal authority to support the notion that the mandatory language of CCP § 36(b) does not apply in this context. This matter shall be set for ...

Excerpt: ...n Department 2. Defendant's demurrer to the Plaintiff's First Amended Complaint is OVERRULED. (CCP § 430.10(e).). Defendants are ordered to file and serve an Answer within five (5) days of the date of this ruling. (CCP §1167.3.) Defendant's motion to strike is GRANTED in part. “CITY OF SUTTER CREEK, AND” shall be stricken from the Second Cause of Action – Premises Liability, Prem. L‐5. A demurrer challenges the sufficiency of a complain...

Excerpt: ... fees is at the discretion of the court. Although the purpose of CCP § 527.6 is to provide expedited injunctive relief to victims of harassment, the party to be enjoined has certain important due process safeguards. The defendant is entitled to a full opportunity to present his or her case, with the judge required to receive relevant testimony and to find the existence of harassment by clear and convincing proof of a course of conduct that actua...

Excerpt: ...answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. “Substantial justification” is generally defined as being justified to a degree that could satisfy a reasonable person or stated another way, that it has a reasonable basis both in law and fact. The burden for proving substantial justification for failing to com...

Excerpt: ... is proper where the pleading does not state facts sufficient to constitute a cause of action . (CCP § 430.10(e).) A complaint “is sufficient if it alleges ultimate rather than evidentiary facts ” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550), but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and ...

Excerpt: ...vember 22, 2019 at 10:00 a.m. in Department 2. If there is no objection to the Commissioner, but a party wishes to present oral argument at the hearing, the party must notify the Court in the same manner as indicated above. (See Local Rule 4.03.) If you do not so notify the parties or the Court, the tentative ruling shall become the final ruling. (California Rule of Court 3.1308; Local Rule 4.03.B.) Tentative Ruling: (1) To sustain the demurrer a...

Excerpt: ...l. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 6:459.) In addition, the affirmative defense alleged that plaintiff delivered multiple defective refrigeration units and failed to properly repair the defects and milk had to be dumped due to inadequate cooling over the course of a month. Failure to mitigate damages may occur after a wrong where some damages may still be averted. (United States v Sierra Pac Ind (2012) 879 ...

Excerpt: ...fendant did not attach an Exhibit A to the Request filed July 2, 2019. However, Exhibit A was attached to Defendant's Request for Judicial Notice filed February 15, 2019. Exhibit A in that request is interpreted to be the same April 16, 2018 letter from the VCGCB. Evidence Code § 453(b) provides that the trial court shall take judicial notice of any matter specified in Section 452 if the party requests it and: (a) Gives each adverse party suffic...

Excerpt: ...Evatt simply states Ms. Evatt's belief that the emails are not relevant to the case as they relate to public, not private, access to Amador Lane. (See Exh. 3 to Hobson Declaration in Support of Motion.) “For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement…Admissibility is not the test and information unless privileged, is discoverable if ...

Excerpt: ...motion for summary judgment, which shall be considered by the court first, defendant's motion for judgment on the pleadings is denied as moot. Even if the court was to consider the motion for judgment on the pleadings, the court finds there are procedural reasons this court cannot entertain defendant's motion. Defendant's motion is barred by CCP § 438(g)(2). CCP § 438(g)(2) provides that a statutory motion for judgment on the pleadings may be m...

Excerpt: ...2. Objection 13: Sustained in part as to “profits;” overruled as to “I lost my entire investment.” The motion for summary judgment filed by plaintiffs CIRO TOMA and HELENA ANDERSON is GRANTED. In light of this indicated ruling, the alternative motion for summary adjudication on defendant's liability on plaintiffs' first cause of action for breach of contract is moot. The court notes, however, that plaintiffs' separate statement fails to c...

Excerpt: ... party making the application shall state by affidavit (1) what application was made before, (2) when and to what judge, (3) what order or decisions were made, and (4) what new or different facts, circumstances, or law are claimed to be shown. CCP §1008(a) (emphasis added). Plaintiff's claim that the October 15, 2018 file‐stamped receipt of the Fee Waiver Order should be prima facie evidence as to the Complaint that was received and file‐sta...

Excerpt: ...skis (1958 Cal App. 1st Dist.) 158 Cal.App.2d 410.) Further, even if the motion had been properly served, the motion should be denied on an additional procedural basis. CCP § 473.5(b) states: A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing unde...

Excerpt: ...of right are attorney's fee awards when authorized by contract, statute, or law. ( CCP §1033.5(a)(10)(A)‐ (C).) Although the moving papers state that the “number of statutes that allow for recovery of attorney's fees in California are broad and plentiful” (citing the Declaration of Marshall Jaquish, at ¶ 36 as the only authority), only one specific statute is cited. Moving party asserts the recovery of attorney's fees is authorized under ...

Excerpt: ... tentative ruling finds the moving party has failed to provide adequate notice both by the timing of the motion and content of the notice of motion. Adequate notice and an opportunity to be heard prior to the imposition of sanctions are mandated both by CCP § 177.5 and by due process. (Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970.) The notice of motion and motion was untimely served and filed under CCP § 1005. Noticed motions must be ...

Excerpt: ...equest for judicial notice is GRANTED. (Evidence Code § 453.) DEMURRER To sustain Defendants' demurrer in part, as follows: Demurrer is sustained without leave to amend; the court finds the action is time‐barred by Plaintiff's failure to timely file the complaint within six months after the Victim Compensation and Government Claims Board (hereinafter “VCGCB”) rejected the claim, and therefore fails to state facts sufficient to constitute a...

Excerpt: ...ntiff's failure to appear shall result in adoption of the tentative ruling. Defendant's unopposed motion to transfer venue is GRANTED. The matter shall be transferred to San Joaquin County Superior Court which is the appropriate venue for trial. (CCP §§ 395(a), 396b, 397.) The Court vacates the case management conference set for 10:30 a.m. on May 29, 2019 ...

Excerpt: ...of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” The Court finds the motion to quash was timely filed on the last day of cross‐defendant's time to plead. The cross‐complainant bears the initial burden of proof to demonstrate by a preponderance of the evidence that minimum contacts exist between the cross‐ defendant and the forum state ...

Excerpt: ...of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.” The Court finds the motion to quash was timely filed on the last day of cross‐defendant's time to plead. The cross‐complainant bears the initial burden of proof to demonstrate by a preponderance of the evidence that minimum contacts exist between the cross‐ defendant and the forum state ...

Excerpt: ...s it is unnecessary to rule on the remaining objections. Plaintiff moves for judgment on the pleadings, pursuant to CCP § 438(c)(1)(A) on the basis the complaint states facts sufficient to constitute a cause of action on the fourth cause of action in Partition against Defendant, and Defendant' s Answer does not state facts sufficient to constitute a defense thereto. A plaintiff may move for judgment on the pleadings if grounds for the motion are...

Excerpt: ...notice of motion to compel further responses to interrogatories must be served within 45 days after service of the response in question, which time is extended if served by mail, overnight delivery, or fax (see CCP § 1013(a)). Parties can stipulate in writing to extend the deadline to file the motion to compel. ( CCP § 2030.300(c).) Otherwise, the demanding party waives the right to compel any further response. ( CCP § 2030.300(c).) The record...

Excerpt: ... take Judicial Notice of Exhibit Nos. 1‐25. The request is granted. (Evid. Code §§ 452(d), 453.) RULING ON MOTION: The motion is granted. The Court notes Cross‐Complainant PIERSON's untimely service of his opposition to the motions to deem him a vexatious litigant, and to require the furnishing of a bond. PIERSON filed an ex parte motion, which was granted, continuing the hearing date on the motion from January 25, 2019 to March 1, 2019. Al...

Excerpt: ...otions can support a vexatious litigant designation; repeated motions must be so devoid of merit and be so frivolous that they can be described as a flagrant abuse of the system, have no reasonable probability of success, lack reasonable or probable cause or excuse, and are clearly meant to abuse the processes of the courts and to harass the adverse party than other litigants. (Morton v. Wagner (2007) 156 Cal.App.4th 963, modified on denial of re...

Excerpt: ...elephone using the CourtCall system. Commissioner Andrea C. Sexton will act as judge pro tem on this law and motion calendar and has issued this tentative ruling. Any party who does not wish to stipulate to the Commissioner hearing this matter must notify the court at the time of hearing. Since no judge will be available for this law and motion calendar, if any party declines to stipulate, the matter will be continued to February 22, 2019, at 10:...

Excerpt: ...hone using the CourtCall system. Commissioner Andrea C. Sexton will act as judge pro tem on this law and motion calendar and has issued this tentative ruling. Any party who does not wish to stipulate to the Commissioner hearing this matter must notify the court at the time of hearing. Since no judge will be available for this law and motion calendar, if any party declines to stipulate, the matter will be continued to February 22, 2019, at 10:00 a...

Excerpt: ...uct discovery closer to trial is moot. The granting or denying of a continuance is ordinarily a matter resting within the sound discretion of the trial court, and the court's determination will not be interfered with, except upon a showing of abuse of discretion. (Whalen v. Superior Court (1960) 184 Cal.App.3d 598, 601.) In making this ruling, the court is governed by the course which seems most likely to accomplish substantial justice. The court...

Excerpt: ... compliance with procedural and evidentiary rules. “Section 437c is a complicated statute. There is little flexibility in the procedural imperatives of the section... As a result, section 437c is unforgiving; a failure to comply with any one of its myriad requirements is likely to be fatal to the offending party .” (Brantley v. Pisaro (1996) 42 CA4th 1591, 1607.) Here, the opposition has several deficiencies, both in procedure and substance. ...

Excerpt: ... Dist. 1961) 197 Cal.App.2d 118.) Defendants' demurrer to the First Amended Complaint (FAC) is granted as follows: Demurrer is sustained without leave to amend; the court finds the action is barred by the doctrine of res judicata. ( CCP § 430.10(e).) The court further finds that even if the action was not barred by the doctrine of res judicata, Plaintiff has failed to comply with the Government Tort Claims Act and such compliance is now impossib...

Excerpt: ...for Dismissal (form CIV‐110) in order to dismiss RACHEL WEINER HESS. The following tentative ruling is issued as to the motions before the court: 1. As outlined in further detail below, the demurrer IS SUSTAINED WITHOUT LEAVE TO AMEND as to the third, sixth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth causes of action. The demurrer is OVERRULED as to the fifth cause of action (breach of contract) only. 2. The unoppo...

Excerpt: ...Dismissal (form CIV‐110) in order to dismiss RACHEL WEINER HESS. The following tentative ruling is issued as to the motions before the court: 1. As outlined in further detail below, the demurrer IS SUSTAINED WITHOUT LEAVE TO AMEND as to the third, sixth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth causes of action. The demurrer is OVERRULED as to the fifth cause of action (breach of contract) only. 2. The unopposed ...

Excerpt: ...documents such as pleadings, and their proper interpretation, are not subject to judicial notice. (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 835.) Moving Party KMPUD filed two separate requests for judicial notice, filed October 16, 2018 and December 28, 2018 respectively. KMPUD requests the court take judicial notice of: October 16, 2018 RJN 1.First Amended Complaint filed in the Superior Court, Coun...

Excerpt: ... meet the requirements for a motion as set forth in CRC 3.1112. There is no true notice of motion. There is no memorandum of points and authorities presenting legal authority in support of the request. There is no accompanying declaration providing evidence in support of the motion. Plaintiff is currently incarcerated at the California Men's Colony (CMC) State Prison in San Luis Obispo. If Plaintiff wishes to be heard on the motion, he must make ...

Excerpt: ...documents such as pleadings, and their proper interpretation, are not subject to judicial notice. (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 835.) Moving Party KMPUD filed two separate requests for judicial notice, filed October 16, 2018 and December 28, 2018 respectively. KMPUD requests the court take judicial notice of: October 16, 2018 RJN 1.First Amended Complaint filed in the Superior Court, Coun...

Excerpt: ...mary Adjudication The court GRANTS the Motion for Summary Adjudication of Plaintiff CSAA INSURANCE (hereinafter “CSAA”) on the issue of KIRKWOOD MEADOWS PUBLIC UTILITY DISTRICT's duty to operate, maintain, inspect, monitor, in safe, efficient, and proper condition, KMPUD's jurisdictional propane system which necessarily includes the entire portion between the Noia Property boundary line and KMPUD's propane meter on the Noia Property. The cour...

Excerpt: ...mary Adjudication The court GRANTS the Motion for Summary Adjudication of Plaintiff CSAA INSURANCE (hereinafter “CSAA”) on the issue of KIRKWOOD MEADOWS PUBLIC UTILITY DISTRICT's duty to operate, maintain, inspect, monitor, in safe, efficient, and proper condition, KMPUD's jurisdictional propane system which necessarily includes the entire portion between the Noia Property boundary line and KMPUD's propane meter on the Noia Property. The cour...