| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
|---|
Motion for Summary Judgment
Redundancy is not grounds for sustaining a demurrer. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-890.)
Seventh cause of action for cancellation of written instruments – SUSTAINED
Plaintiff alleges he “seeks to cancel any Grant Deed, Trustee’s Deed Upon Sale, or similar instrument purporting to grant ownership in anyone other than Plaintiff” (FAC ¶ 52) but does not allege any of the instruments are void or voidable and on what ground. (See U.S. Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 778; Civ. Code, § 3412.)
Eighth cause of action for quiet title – SUSTAINED
Plaintiff has not alleged he tendered the full repayment amount as to the outstanding debt on which the deed of trust is based.
If plaintiff chooses to amend, plaintiff is ORDERED to file a red-lined and clean version of the amended pleading.
Defendant MCLP Asset Company, Inc.’s Joinder to Demurrer to First Amended Complaint
Defendant MCLP Asset Company, Inc.’s (MCLP) motion to join Defendant Newrez LLC dba Shellpoint Mortgage Servicing’s Demurrer to Plaintiff Thomas Rhee’s First Amended Complaint is DENIED.
Code of Civil Procedure section 128.7 requires motions to be signed by the attorney of record. Neither the motion nor the accompanying declaration are signed by counsel.
Moreover, MCLP has not filed a signed proof of service showing the moving papers were served. (See Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, Rule 3.1300
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Clerk to give notice.
10 Franco vs. Motion for Summary Judgment Memo’s Defendant Donald Patton Construction, Inc.’s (“DPC”) Scaffolding motion for Summary Judgment is DENIED. Norwalk Inc. 30-2024- 01401625-CU- PO-CJC
Defendant’s Objections to Plaintiff’s Evidence is OVERRULED as to Objections Nos. 1-3 and SUSTAINED as to Objection No.
4.
Plaintiff’s Objections to Defendant’s Evidence is OVERRULED as to Objection Nos. 3, 6, and 7 and SUSTAINED as to Objection Nos. 1, 2, 4 and 5 (Lopez v. Univ. Partners (1997) 54 Cal.App.4th 1117, 1124 [“Declarations based on information and belief are insufficient to satisfy the burden of either the moving or opposing party on a motion for summary judgment or adjudication.”].)
The Complaint alleges causes of action for General Negligence and Premises Liability against DPC. DPC moves for summary judgment on the grounds the Privette doctrine bars liability under both the negligence and premises liability claim. (See Privette v. Superior Court (1993) 5 Cal.4th 689, 693 [“a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work”].)
However, the retained control exception was recognized in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, which “held that a hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the worker’s injury.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 38 [citation omitted].)
Plaintiff has established there exist triable issues of material fact over whether the retained control exception applies, because the scaffolding supplied by DPC appears to have failed. The scaffolding lacked adequate ledgers and/or was defective at the time of use, and as a result when Plaintiff gripped onto the ledger to pull himself up to ascend the scaffolding, the latch broke, causing Plaintiff to fall. (Plaintiff’s Decl., ¶ 8(a).) There was no fall-protection tie-off points installed or available on or near the working level for use by Plaintiff or other Lamaison co-workers. (Plaintiff’s Decl., ¶8(a).) (See McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 [negligent provision of unsafe equipment.)
Plaintiff to give notice.