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