Excerpt: ...the defendant intends to cause injury, or despicable conduct carried on by the defendant that a willful and conscious disregard of the rights or safety of others. (Ibid.) Malice does not require actual intent to Page 2 of 3 450 Fourth Street Hollister, CA 95023 (831) 636‐4057 x124  FAX (831) 634‐4911 harm. (Pfeifer v John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) Conscious disregard for the safety of another may be sufficient. (Ib...

Excerpt: ...intiff has demonstrated that Buzzetta signed the original lease and a Personal Guarantee in his capacity as a surety, and that there was a failure to pay the promised amount, Buzzetta has met his burden of showing the existence of a triable issue of one or more material facts as it pertains to a complete defense to Page 2 of 3 450 Fourth Street Hollister, CA 95023 (831) 636‐4057 x124  FAX (831) 634‐ 4911 Plaintiff's causes of action aga...

Excerpt: ...e right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 227.) Even if two actions involve the same general subject matter, but involve distinct episodes of purported non‐compliance, the doctrine of res judiciata does not apply. (Id. at 228.) Here, Petitioner's brought two causes of action in ca...

Excerpt: ...th and last stated cause of action and that cause of action was only against Airpark. None of the remaining causes of action incorporate Paragraphs 85 through 92, which make up the fifth cause of action. Since the fifth cause of action was resolved and are no longer the subject of a pending action, and because the allegations are not included as a basis for any cause of action against the Defendant Atlantic Specialty, the requests are irrelevant....

Excerpt: ... operative Complaint. The three positions Page 2 of 4 450 Fourth Street Hollister, CA 95023 (831) 636‐4057 x124  FAX (831) 634‐4911 at issue (Hourly Rate Sales Representatives (“Hourly RSR”); Route Sales Support (“RSS”), and Regional Inside Sales Associates (“RISA”)) were paid, in part, on a commission basis. Plaintiffs are entitled to seek discovery of evidence relating to whether the entire class can be certified. (Ogden v...

Excerpt: ...ract has the burden of demonstrating that the plaintiff's choice of venue is not proper under any of the statutory grounds. (Mitchell v. Superior Court (1986) 186 Cal.App.3d 1040, 1046.) When parties to an action make a motion for a change of venue, it is incumbent on them to make a complete showing requiring the change. (Sequoia Pine Mills, Inc. v. Superior Court of Tuolumne County (1968) 258 Cal. App. 2d 65, 65.) Here, Plaintiff submitted compe...

Excerpt: ....) The amended answer must be filed and served within five (5) calendar days. The plaintiff has ten days after service of the amended answer to demurrer to the amended answer. (CCP Section 471.5(b).) The parties are ordered to attend the hearing to address the Plaintiff's motion for summary judgment. ...

Excerpt: ...ty of prevailing on the claim. (Taus v. Loftus (2007) 40 Cal.4th 683, 703.) First, the moving party has made a threshold showing that the challenged cause of action is one arising from protected activity because the Cross‐Complaint's claims arise out of Plaintiff's filing of the Complaint. (See Rusheen v. Cohen (2006) 37 Cal.4th 148, 1056.) In particular, Cross‐Defendant's Cross‐Complaint is based, in part on Plaintiff's Complaint and wheth...

Excerpt: ...ty, therefore, the second cause of action is superfluous and Plaintiff is therefore precluded from pursuing these two, duplicative theories. While this Court agrees with the City's interpretation of the Diaz case, the Sixth District Court of Appeal held that a demurrer is not the proper vehicle to eliminate duplicative or redundant causes of action. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889‐890.) The...

Excerpt: ...ssary, but billing timesheets are not necessary. (See Sweetwater Union High Sch. Dist. v Julian Union Elementary Sch. Dist. (2019) 36 Cal.App.5th 970, 995.) California Code of Civil Procedure Section 1021.5 allows for the court to award attorneys' fees to a successful party against an opposing party in any action, which resulted in the enforcement of an important right affecting the public interest. Such an award may only be made if the court fin...

Excerpt: ...ction for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Cal. Civil Code §3294(a).) “‘Malice' means conduct which is intended by the defendant to cause injury to the Page 2 of 3 45...

Excerpt: ...en no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment has met his or her burden of showing a cause of action has no merit if the defendant has shown that one or more elements of the plaintiff's cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) “[T]he defendant bears an initia...

Excerpt: ...ablishing the probable validity of its real property claims. (See Code of Civ. Proc. Section 405.30; Howard S. Wright Constr. Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319.) The evidence presented shows that there is an express condition precedent under the Option Agreement, which was not satisfied at the expiration of the Option Term, thereby excusing Defendants from further performance. The Plaintiff had the obligation to convert the la...

Excerpt: ... to the entity. (Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 906.) If a government claim is denied, a lawsuit must be brought within six months of the denial. (Cal. Gov't Section 945.6.) Here, the claim was rejected on September 28, 2015 and the lawsuit was filed approximately two year later, well after the statute of limitations had expired. Plaintiff claims that the District is estopped from claiming that this lawsuit is untimely filed becaus...

Excerpt: ...ls to state facts sufficient to state a cause of action. “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.'” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal s...

Excerpt: ...sion of time. While an extension was not required by law, Plaintiff denied the request and responded with an 84‐page letter demanding a response from Wells Fargo within three days – the day before Thanksgiving. Moreover, Wells Fargo eventually produced supplemental discovery responses by the deadline that it had originally requested. II. Demurrer Filed by Barrett, Daffin, Frappier, Treder & Weiss (BDFTW) The demurrer to the First Amended Comp...

Excerpt: ...third and fourth causes of action against the District are dismissed with prejudice. The evidence presented by Plaintiffs does not trigger any mandatory reporting requirements under California Penal Code Section 11164 et seq. Issue No. 2 – Government Code Section 820.9 provides immunity to members of a school district's Board of Trustees for any act or omission of the public entity or advisory body. Plaintiffs have failed to present any admissi...

Excerpt: ...92) 5 Cal.App.4th 34, 54 fn. 22, Code of Civil Procedure §1032(a)(4).) The Court further finds that the claims for trade secret misappropriation were made in bad faith. As Defendants point out, the facts that served as the underlying basis for the Second Action were facts generally accessible to the public and, therefore, they cannot be trade secrets as no value may be derived from them. (See Cal. Civil Code §3426.1(d), SASCO v. Rosendin Electr...

Excerpt: ...pleading within 30 days of service of the Second Amended Complaint. Plaintiffs allegations in the FAC against Wells Fargo, the successor in interest to WSB, relates solely to loan modification and the foreclosure process. In particular, the allegations are that Wells Fargo denied Plaintiffs a HAMP modification, mishandled a modification application, wrongfully foreclosed on their property and failed to comply with statutory notice of default requ...

Excerpt: ..., of alcohol in his blood. (Cal. Veh. Code §§13558(c)(2), 13357(b)(2).) “The hearing need not be conducted according to technical rules relating to evidence and witnesses, except as hereinafter provided. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make impr...

Excerpt: ...g in the Superior Court of Sacramento entitled Vincent Bruccheri, Mario Contreras, and Jerry McNeely v. Aramark Uniform Services, LLC., Case No. 34‐2017‐ 00223408‐CU‐ OE‐GDS (Bruccheri). The claims in Moore and Bruccheri encompass and overlap with Plaintiff Deluna's claims in the present action, including whether Aramark may be held liable for Page 3 of 3 450 Fourth Street Hollister, CA 95023 (831) 636‐4057 x124  FAX (831) 634�...

Excerpt: ...t cannot appoint the Public Guardian because the County of San Benito does not have currently have a Public Guardian. Defendants' unopposed Motion to Compel Plaintiff's Verified Responses to Form Interrogatories, Set One, Request for Production, Set One, and to Compel Plaintiff's Deposition is GRANTED. This Court previously continued this matter at the request of Page 2 of 3 450 Fourth Street Hollister, CA 95023 (831) 636‐4057 x124  FAX (...

Excerpt: ...t fails to state the specific statute for relief, he does cite to Fidelity Creditor Services Inc v. Browne (2001) 89 Cal.App.4th 195, 204 as grounds for the proposition that the failure to properly serve the summons and complaint constituted grounds to vacate the renewal of a judgment. In Fidelity Creditor Services the judgment debtor moved to vacate the renewal of judgment pursuant to Code of Civil Procedure Section 473.5. In order to vacate jud...

Excerpt: ...st for Monetary Sanctions pursuant to Code of Civil Procedure Section 396b is GRANTED. In light of Plaintiff's counsel's delay in responding to Defendants' request to stipulate to transfer the matter, the Defendant is awarded $1,320.00 as a sanction for the costs and fees associated with bringing this motion. ...