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: ...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: ... 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: ... 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...