Excerpt: ...ailing party under Civil Code section 1717. The enforcement of this judgment was resisted by Pinedale. Pinedale asserted illegality of the contract between the parties and made a rescission argument. The City of Fresno is a prevailing party in its suit to enforce the judgment. The city is entitled to its attorney fees and costs under Civil Code §1717, CCP 1032, CCP §685.070 (a )(6) and §685.040. The authority cited by Pinedale to the contrary ...

Excerpt: ...he subpoena noting that it was subject to criminal penalties for releasing tax documents without a court order or consent from the taxpayer. Defendant contends this was not an “objection,” so this motion, directed to plaintiff after plaintiff failed to respond to letters seeking consent, filed 67 days after the CPA letter is not barred by the 20 day time limitation. No other code section was cited in support of the motion. The court does not ...

Excerpt: ...rastate business is not being conducted by a foreign limited liability company when it takes actions in California to collect a debt. (Conseco Marketing LLC v IFA & Ins Services (2013) 221 Cal.App.4 th 831, 840 [the SSFMJA does not contain a requirement that a judgment creditor which is a foreign corporation or foreign limited liability company, such as judgment creditor here, needs to qualify with the Secretary of State as a precondition to invo...

Excerpt: ...eed of trust. Defendant's demurrer to the 4 th and 6 th causes of action brought by Khodadad on the basis of lack of standing is sustained. The FAC at paragraph 55 alleges that Khodadad lost his investment and equity in Cashera as a result of the alleged fraud and wrongful foreclosure. The sole authority cited by plaintiff in opposition to the demurrer is distinguishable. (Munger v Moore (1970) 11 Cal.App.3d 1, 8 [a successor in interest to prope...

Excerpt: ... injury suffered by plaintiff could have been caused by the x-ray equipment due to an issue with the sensor and/or the wire connecting it to the computer. Defendants objected to Dr. Smith's declaration on the grounds that it lacked foundation because Dr. Smith did not state he had examined the x-ray machine and because Dr. Smith merely speculated that there was a possibility the digital detector and its attachments could have been the source of t...

Excerpt: ...: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 9:106 at 9(i)-90.) The court finds that all parties stipulated that the code would be followed with reference to what would happen following the premature conclusion of plaintiff's deposition. (RT 104- 105.) CCP 2025.520 provides that the deponent has 30 days after notice by the deposition officer that the transcript is available to read, correct and sign the transcript. The deponent may �...

Excerpt: ...oposed judgment submitted by the City of Fresno. Respondent objects to the court consideration of the City's motion for attorney fees and argues that the motion is premature. The court has no objection to continuing the hearing on the motion until after the statement of decision is filed and judgment is entered. (CRC 3.1700.) The parties may select a hearing on the motion. In the interest of expediency, the court has reviewed the pleadings of the...

Excerpt: ...ve authority to accept service of process on behalf of the CHP. Accordingly, the motion to quash service of summons and complaint is granted. ...

Excerpt: ...) 252 Cal. App. 2d 256, 269; Thomas v. Doorley (1959) 175 Cal. App. 2d 545, 549; Ayer v. Robinson (1958) 163 Cal. App. 2d 424, 428–429. Demurrer The plaintiff has requested, and the court grants, plaintiff leave to amend to separate out the claims of the father from the claims of the son. The demurrer to the 4 th cause of action for NEID is sustained with leave as to the son. Given the physical injury suffered by the father, the claim for NEID ...

Excerpt: ...was not given by Soligent to any lender. Soligent is not asserting a stop notice or claim against a payment or performance bond, or bringing any claim against a construction lender. No authority is cited that a supplier may not file a mechanic lien under these circumstances. Soligent supplied the solar panels installed by AHE on a residence owned by Cotton. As a material supplier, Soligent has a statutory right to file a mechanic lien for the non...

Excerpt: ...must be established to support the heightened need for supervision before school and during recess as set forth in the minor's IEP due to the minor's “challenged motor skills, energy level and his tendency to lose his balance and fall when accidently pushed or fatigued.” The extent of the minor's disabilities before the fall will necessarily be part of the evidence at the liability phase of trial. Any prejudice to defendant from jury sympathy...

Excerpt: ... does not object to the intervention by James River, but takes issue with the attorney fee request in the answer and the naming of the plaintiff in the cross-complaint for indemnity, contribution, apportionment of fault etc. The court agrees with James River that intervention should first be granted and any objection to the allegations within the answer and cross-complaint may be the subject of a demurrer and/or motion to strike after the propose...

Excerpt: ...dges that the affirmative defenses of waiver, estoppel or latches are not relevant to its motion. The reply withdraws the declarations addressing the 2/21/19 reservation of rights letter to a lawsuit amended to name Paramount and its medical practitioners in August of 2017. Had MPT's summary judgment been filed to solely address a duty to insure and defend Paramount for the acts and omissions of Dr Scanlon, the court would agree that an argument ...

Excerpt: ...urt finds that plaintiff has failed to establish that plaintiff is likely to prevail on the merits of its complaint for misappropriate of trade secrets, breach of contract, conversion and imposition of a constructive trust. Plaintiff has failed to establish that it will suffer irreparable injury unless a TRO issues and that monetary damages could not offer adequate relief. If the request for a TRO is brought under B&PC §17203, defendant has made...

Excerpt: ...) 252 Cal. App. 2d 256, 269; Thomas v. Doorley (1959) 175 Cal. App. 2d 545, 549; Ayer v. Robinson (1958) 163 Cal. App. 2d 424, 428–429. Demurrer The plaintiff has requested, and the court grants, plaintiff leave to amend to separate out the claims of the father from the claims of the son. The demurrer to the 4 th cause of action for NEID is sustained with leave as to the son. Given the physical injury suffered by the father, the claim for NEID ...

Excerpt: ...s the requirement of a public entity to notify the claimant if it deems the claim defective. (Gov. Code §910.8.) Unless notice of defect is given, the public entity waives a defense based on such defect. (Gov. Code §911; Phillips v Desert Hosp Dist (1989) 49 Cal.3d 699, 707.) The documents attached to the declaration of plaintiff counsel indicates that plaintiff was advised the claim had been rejected. The attorney does not attach a letter whic...

Excerpt: ... liability of a third party tortfeasor, if there was any comparative negligence from the employer, and the right of subrogation of the employer against any recovery from the third party by plaintiff. No case was cited to support a finding that the WCAB has exclusive, or first in time jurisdiction of such disputes. First in time jurisdiction does not apply to the third party claim filed in this court, since the same parties and same causes of acti...

Excerpt: ...e would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”].) The objections asserted in opposition to the motion to amend appear to be ones that should be addressed in the context of a demurrer. (California Cas Gen Ins Co v Sup Ct (Gorgei) (1985) 173 Cal App.3d 274, 281, overruled on another point in Kransco v American Empire Surplus...

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<004c0055005...

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 ...