Excerpt: ...he Motion to Strike punitive damages as to the first cause of action. The MTS is moot as to the remainder of the claims. The Court grants Michael's unopposed Request for Judicial Notice pursuant to Evidence Code §452(d). 1. Breach of Fiduciary Duty In this new Cross-Complaint, Mark first alleges that his brother, Michael, breached his fiduciary duty to him when he shredded Mark's mail notifying him about various tax issues, with the result that ...

Excerpt: ...es that defendants were aware of clearly material information contained in the preliminary title report for the property and the home inspection report, and not only failed to disclose said information to plaintiffs, but pressured plaintiffs to follow through with the purchase. 1st COA – Fraudulent Concealment The title report is alleged to have shown the existence of a Code Enforcement action against the property as well as a lis pendens. Firs...

Excerpt: ... Cal.3d 780, 795; Piccinini v. California Emergency Management Agency (2014) 226 Cal.App.4th 685, 688.) Plaintiff has failed to do so here. To state a disparate treatment claim, Plaintiff must allege facts to show that he was subjected to an adverse employment action and that his protected status “was a substantial motivating reason” for same. (See CACI 2500, and Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) The complaint must p...

Excerpt: ...n, conversion. The FAC fails to state facts sufficient to constitute this claim. “‘To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property.'” (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222.) Or as plaintiffs correctly note, conversion requires only “the intent to ...

Excerpt: ...cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) And the Demurrer has merit. COAs 2-4 assert essentially identical claims for fraud, intentional misrepresentation, and negligent misrepresentation. But every element of a fraud claim must be alleged in full, factually and specifically. General and conclusory allegations do not suffice. (Lazar v....

Excerpt: ... (See Willis v. City of Los Angeles (9th Cir. 2000) 57 Fed. Appx. 283, 289.) The U.S. District Court has already dismissed the § 1983 claim with prejudice. And the alleged conduct is protected by qualified immunity. (See Gov. Code, § 815.2; see also Via v. City of Fairfield (E.D. Cal. 2011) 833 F.Supp.2d 1189, 1195.) Plaintiff fails to meet her burden to show any reasonable possibility of curing the defects by amendment. (See Blank v. Kirwan (1...

Excerpt: ...ng, and concealing funds. (See Cross-compl. ¶¶ 10-12.) The filing of the cross-complaint was just “the means of communicating that action or decision” or “evidence of that action or decision.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060; accord Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1275-1276 [complaint based on termination of tenancy, not unlawful detainer action].) Cross-defenda...

Excerpt: ... a new trial based on inadequate damages. (Code Civ. Proc., § 657, subd. (5).) However, “[a] new trial shall not be granted . . . upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.) When the court determines ...

Excerpt: ... in granting leave to amend: the parties may instead test its legal sufficiency by demurrer, motion, or other appropriate proceedings. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) This Motion is therefore granted – but without prejudice to any future motions defendants wish to file as to the merits of the proposed new claims. Plaintiffs may file their Second Amended Complaint in substantially the form proposed with...

Excerpt: ...the factual issue of whether the clothing Nike required its employees to wear constitutes a uniform or whether it was suitable for everyday wear and therefore a fringe benefit under federal law. Defendants' arguments and authority are based on Nike legally withholding taxes from its employees, rather than a situation where withholding was not legally authorized. Plaintiff arguably may seek restitution from Nike for the taxes employees had to pay ...

Excerpt: ...25 (Any and all documents relating to maintenance, repairs, inspections, invoices, or work performed at the premises for a period of three (3) years preceding the incident). To date, Defendant has not produced responsive documents. Defendant also has failed to provide documents responsive to Requests for Production relating to the PMK Deposition of Mr. Cho. Specifically, Defendant has not produced documents responsive to Requests 6 (Defendant's p...

Excerpt: ...he First, Second and Third Causes of Action (“COAs”), the contracts upon which the claims are based are also now adequately identified. A demurrer for uncertainty lies only where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied or what counts or claims are directed against it. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4 th 612, 616.) Any remaining ambiguities as ...

Excerpt: ...l of the out-of-state action initiated by Defendant and bringing this motion for fees. It is premature for Plaintiff to seek any remedies in this action, including attorneys' fees, pursuant to Section 925(c) before there has been a determination whether Plaintiff was an employee or independent contractor, and whether Defendant violated Labor Code § 925. Pursuant to Section 925, an employer may not require an employee who primarily resides and wo...

Excerpt: ...Homeowners Association (13th cause of action) are sustained with 30 days leave to amend based on the failure of each challenged cause of action to state facts sufficient to constitute a cause of action. Defendants Professional Community Management of California, Inc. and Cabo Del Mar Homeowners Association's Motion to Strike is deemed moot and off calendar by virtue of their demurrer being sustained with leave to amend. Defendants AMC Inc. dba St...

Excerpt: ... 163 Cal.App.4th 896, 902; Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 577.) In addition, Plaintiff came forward with evidence showing that Defendant received the benefit of years of misapplied loan payments, of Plaintiff's payment of the property taxes and insurance, and of Plaintiff's refund of loan escrow funds, which the Defendant was not entitled to. At the time of the final accounting of their dealings, D...

Excerpt: ...arified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptively within defendant's knowledge. (Khoury,14 Cal.App.4th a...

Excerpt: ...itted, a redline version showing all changes, deletions and additions shall be submitted as well. As to the Settlement: 1. The proposed Class Definition contained in Article I, subsection c, of the Settlement Agreement and ¶17 of the First Amended Complaint, references security guards or individuals in a “functionally equivalent position.” The Class Notice is directed to, and defines the Class as, only security guards. Please confirm that th...

Excerpt: ...hould not dismiss the case for failure to prosecute. Given plaintiff's complete failure to prosecute this case and his failure to respond to discovery or the court's orders to compel, the court grants the defendant's request for terminating sanctions. On 10/29/18, defendant's former counsel caused to be served upon plaintiff by regular US Mail four sets of discovery as follows:  Form Interrogatories  Special Interrogatories  Request for ...

Excerpt: ...as sufficient here. Code of Civil Procedure section 2025.480 provides in relevant part: “If a deponent fails to answer any question or to produce any document . . . that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) Furthermore, “[i]f the court determines that the answer or productio...

Excerpt: ..., very minimal, and Trilogy was often dismissed from construction defect suits for waiver of costs or with payment of very little money. But Navigators directed its attorneys to avoid vigorously defending Trilogy and to try to use money Trilogy would have to reimburse to resolve claims. This created circumstances where other law firms Navigators selected were subject to conflicts of interest, often receiving conflicting instructions from their cl...

Excerpt: ...3, 2018 (ROA 167). Four weeks later, the attorneys for the parties (but not the parties themselves) stipulated to class-wide arbitration based on the representation that most of the putative class members had signed arbitration agreements. The stipulation (ROA 170) provided for arbitration of all “disputes arising from or related to the facts pleaded in the Complaint,” and gave no indication that the role of the arbitrator would be to approve...

Excerpt: ... arbitration appears to have been pursued against “Larkin.” The Award is against Larkin. The fact that this may have been a mistake may be immaterial to the Court's determination. Arguably any correction in the final award must be made by the arbitrator, which may then be confirmed by the Court. Without a valid reason for correction and without consistent paperwork the only thing this Court may do is confirm the award as written. CCP §1286.2...

Excerpt: ...erged into a single proceeding and result in only one judgment. (Hamilton v. Asbestos Corp., Ltd.(2000) 22 Cal.4th 1127, 1147-1148 [in consolidation for all purposes, two actions are merged into a single proceeding and result in only one judgment]; Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 1053 [“Consolidation, as a procedural matter, converts two cases into one action.”]; Bridewell-Sledge v. Blue Cross of California (9th Cir. 2015) 79...

Excerpt: ... the court.” On January 4, 2019, the Court sustained in part and overruled in part Defendant's demurrer to Plaintiffs' initial complaint. Plaintiffs were granted 15 days leave to amend. The parties waived notice, as noted in the minute order for the hearing. Plaintiffs' deadline to file the FAC was January 22, 2019. (Code Civ. Proc., § 472b.) Plaintiffs filed the FAC on January 23, 2019 -- one day late. Plaintiffs' counsel indicate they failed...

Excerpt: ..., very minimal, and Trilogy was often dismissed from construction defect suits for waiver of costs or with payment of very little money. But Navigators directed its attorneys to avoid vigorously defending Trilogy and to try to use money Trilogy would have to reimburse to resolve claims. This created circumstances where other law firms Navigators selected were subject to conflicts of interest, often receiving conflicting instructions from their cl...

Excerpt: ..., it expressly prohibits such death knell responses: “if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.” §575.2(b). In addition, although plaintiff's counsel cited the wrong subsection, CCP §473 does provide a vehicle for having this voidable order set aside. Counsel cites to sub...

Excerpt: ...oc., § 473(d) [emphasis added].) A Judgment may be void a for a number of reasons, including lack of personal jurisdiction over the Defendant. When a Defendant challenges the Court's personal jurisdiction on the ground of improper service of process the burden is on Plaintiff to prove the facts requisite to an effective service. (See Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Code of Civil Procedure section 415.20(b) sets forth the ...

Excerpt: ...ith attempt at personal service, an individual Defendant may be substitute serve by: (1) leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box; (2) in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing addr...

Excerpt: ... o r 500.) The most important factor is the settling party's proportionat e consider not only the settlor's potential liability to the Plaintiff, but a Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4 t The burden of proof is on the party opposing the good faith determi good faith determination. Also relevant is the likelihood that the set amount includes consideration of the possibility that the Plaintiff wil recover at trial. (...

Excerpt: ...onfidant Marinescu, and Vincent's personal attorney attorney Skaist/SYCR (hereinafter “defendants”). Plaintiffs allege that defendants embezzled substantial monies from the company, and are attempting to lock then out of management control. Defendants lob similar allegations back at plaintiffs. On 04/15/19, this Court ordered the entire action to arbitration. At the hearing, a request was made to keep on-calendar the motion for preliminary in...

Excerpt: ...��); Clausen v. Superior Court (1988) 67 CalApp4th 1253, 1255 ("In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing entitlement to such relief must be pled by a plaintiff."). In his complaint, Plaintiff alleged he was subjected to profanities and racial slurs as he was beaten in the head with closed fists, kicked, put in a choke hold, and had a ring forcibly pulled from his finger. It is difficult ...

Excerpt: ......

Excerpt: ...europsychological examination with George K. Henry, Ph.D. at Dr. Henry's office in Los Angeles. Dr. Henry's assistant or Plaintiff's mother and guardian ad litem, Jacquelyn Negrete, may be present at the neuropsychological examination and the examination may be recorded by audiotape. Defendant's objection nos. 1, 3, 4, and 6 are sustained. Defendant's remaining objections are overruled. Defendants contend that California case provides that the pr...

Excerpt: ...aintiff to compel Defendant to provide verified responses, without objection to Request for Production of Documents, Set One. Defendant does not dispute that the aforementioned discovery requests were properly served via mail on him on 02/22/19. To date, Defendant has not served any responses to the Form Interrogatories, Set One; or the Request for Admissions, Set One. Defendant has thus waived any objections to the Form Interrogatories and the R...

Excerpt: ...he declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under CCP Section 284(a) is brought, instead of filing a consent under CCP Section 284(1). Counsel's motion does not state – even in general terms that do not compromise the confidentiality of the attorney-client relationship (e.g., the client's failure to communicate with counsel, or a breakdown in the attorn...

Excerpt: ... but not as to the truth of the facts asserted within those documents. Plaintiff's evidentiary objections are denied. Moving Defendants' Objections Nos. 1-4, 6, and 7-10 are sustained, while all other objections are overruled. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the pl...

Excerpt: ...resented here as to that defect is improper. And no such procedural defect was at issue for the subpoenas addressed on 3/4/19. The dispute as to the 6 th subpoena was deemed moot, and no argument for reconsideration as to that portion of the ruling is presented here. For the last subpoena at issue in the 2/27/19 ruling (No. 7), the Motion was granted because the subpoena was overbroad, sought private records, and Plaintiff had not shown that ther...

Excerpt: ...subject to judicial review as a general rule. (Moncharsh v Heily & Blase (1992) 3 Cal.4th 1, 6, 10–11.) More specifically, courts may not review the validity of an arbitrator's reasoning or the sufficiency of the evidence supporting the arbitrator's award. (Id. at 11.) Judicial review of an arbitration award is limited exclusively to the statutory grounds for vacating or correcting the award. (Id. at 27– 28.) Plaintiffs contend that the arbit...

Excerpt: ...g held in 11/17 and 03/18. Plaintiff has failed to comply with the provisions of California Rules of Court Rule 3.1324(a)(2) and (3) which requires that Plaintiffs state by page, paragraph, and line number what allegations in the previous pleading are proposed to be deleted or what allegations are proposed to be added. Accordingly, the court is inclined to deny the motion without prejudice. ...

Excerpt: ...n of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) In any event, Defendant's arguments have merit. Plaintiff fails to allege whether the alleged contract was written, oral, or implied; nor does she allege the terms of the contract or the legal effect of the contract. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Ca...

Excerpt: ... sustained. No acts by the Sailhouse Defendants are alleged in the FAC. The Court will hear from Plaintiffs at the hearing as to what facts, if any, they believe they could allege against these defendants if they were given leave to amend. The Court is inclined to deny U.S. Bank's motion/demurrer if (1) Plaintiffs advise the Court at the hearing that they intend to proceed against U.S. Bank and (2) advise the Court at the hearing specifically wha...

Excerpt: ...have 15 days leave to amend. First Cause of Action for Unlawful Business Practices Plaintiff's first cause of action for unlawful business practices alleges that the Williams Defendants and Western Surety conspired with each other to illegally allow Don Williams to perform services as a principle contractor enough though his license had been revoked in 2011. (Compl., ¶ 6.) Plaintiff further alleges that Western Surety guaranteed the work of the ...

Excerpt: ...ith leave to amend. The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) Here, the Complaint attaches a copy of the parties' Agreement as Exhibit A. The Complaint also alleges that Defendant BSB breached the written ...

Excerpt: ... punitive damages in a complaint lacking factual foundation. (See Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) Punitive Damages. The motion is denied as to paragraph 47 and the prayer for punitive damages. Punitive damages are available in actions “for breach of an obligation not arising from contract.” (See Civ. Code, § 3294(a).) To plead a claim to recover punitive damages, a Plaintiff must plead and show...

Excerpt: ..., i.e., factors that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses, and the interests of the public in retaining the action for trial in California, i.e., factors which include avoidance of overburdening local courts with ...

Excerpt: ...s not have the ability to comply, or (3) an objection. (Code Civ. Proc., § 2031.220.) On receipt of the response, the demanding party may move to compel further response if any of the following apply: (1) a statement of compliance is incomplete; (2) a representation of inability to comply is inadequate, incomplete or evasive; (3) an objection is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth sp...

Excerpt: ...procedural aspects of the FAA, on the other hand, do not apply here. (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 840-41, citing Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 922; see also Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1351.) The agreements have no express provision for FAA procedural rules to apply and, as such, the CAA procedural rules apply. A party moving to comp...

Excerpt: ...-2017-00951068. The Motion to Vacate Set Aside Request for Entry of Default by Defendants Rebecca Adkinson and Sarosh Abdullah (Quadri) is GRANTED. Defendants Rebecca Adkinson and Sarosh Abdullah (Quadri) (“Defendants”) move to set aside the default entered on January 15, 2019 on the ground that the default is void (Code Civ. Proc., § 473(d).) Defendants argue that the entry of default is void for ineffective service of process. “ ‘[C]om...

Excerpt: ...mit for the completion of discovery (the 15th day before the date initially set for trial) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. (Code Civ. Proc., §§ 2034.610(b); 2024.020(a).) Under exceptional circumstances, the court may permit the motion to be made at a later time. (Code Civ. Proc., § 2034.610(b).) Pursuant to Section 2034.620, the court shall grant leave to augment or amend a...

Excerpt: ...he complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of law. [Citations.]” “The rules of pleading require, with limited exceptions not applicable here, only general allegations of ultimate fact. [Citation.] The plaintiff nee not plead evidentiary facts supporting the allegations of ultimate fact. [Citation.] A pleading is adequate so long as it apprises the defendant of...

Excerpt: ...f action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” This section is to be construed broadly. Code Civ. ...

Excerpt: ...ase law, a request for judicial notice, which seeks to notice contradictory discovery responses by a Plaintiff, may be granted, pursuant to Evidence Code section 452(h), on the basis Plaintiff's own Deposition testimony is not reasonably subject to dispute, by Plaintiff. (See Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4 th 71, 83; See also Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605). Significantly, ...

Excerpt: ...upreme Court nor any California court of appeal has determined whether the Unruh Act applies to public schools. Several federal courts, however, have considered the issue. It appears that the majority of them have determined that the Unruh Act applies to public schools. (Yates v. East Side Union High School District (N.D. Cal., Feb. 20, 2019) 2019 WL 721313, at *3; Z. T. by and through Hunter v. Santa Rosa City Schools (N.D. Cal., Oct. 5, 2017) 2...

Excerpt: ...ncy of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a co...

Excerpt: ...osts: Plaintiffs, as the prevailing parties in this action are entitled to their attorneys' fees and costs under Civil Code section 3496 and Santa Ana Municipal Code sections 1-13 and 18-621(A). The hourly rates and time spent by Plaintiffs' counsel appear reasonable: As outlined in the "Declaration of Jeffrey N. Redd" filed concurrently in support of this motion, the firm charged the City an hourly rate of $225 for attorney time, and an ...

Excerpt: ...nduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. C.C.P. § 2023.030. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unles...

Excerpt: ...eir counsel, it appears his declaration is inadequate to demonstrate that Plaintiffs have “a substantial probability” of prevailing on the punitive damages claim. Specifically, the alleged copy of the Arrest Report and Complaint attached to counsel's declaration is not properly authenticated and is hearsay. Likewise, counsel's declaration as to the contents of Plaintiffs' future testimony is also hearsay. Defendants to give notice. ...

Excerpt: ...y be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. The liberal policy of permitting amendments is not without limitation or qualification. The policy of liberality in permitting amendments applies only where no prejudice is shown to the adverse party. An opposing party that can show inexcusable delay and probable prejudice ...

Excerpt: ... and 6068(e)(1) (filed on 3-4-19) is DENIED; Defendant's (Nili Alai) Request to Stay Case Pending Resolution of Defendant's Based Case in This Court (filed on 3-4-19) is DENIED. The court notes that Defendant filed all three of these motions in one document. Initially, the court DENIES Defendant's request for judicial notice. In Defendant's moving papers, Defendant requests the court to take judicial notice of various items. (For example, see Def...

Excerpt: ...ting injury; and (3) actual loss or damage resulting from the negligence. [Citation omitted.]. . . Unless a party suffers damage, i.e., appreciable and actual harm, as a consequence of his attorney's negligence, he cannot establish a cause of action for malpractice. Breach of duty causing only speculative harm is insufficient to create such a cause of action. [Citation omitted.] “‘[D]amages may not be based upon sheer speculation or surmi...

Excerpt: ... ‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of a cause of action on assumed facts without a trial.' [Citation.]” (McKenney v. Purepac Pharmaceutical Company (2009) 167 Cal.App.4 th 72, 77.) Luri v. Greenwald (2003) 107 Cal.App.4 th 1119, 1125, states, “A basic principle of motion practice is that the moving ...

Excerpt: ... the documents and does not extend to the truth of any disputed factual matters therein. Defendants' objections to the Declaration of the City of San Bernardino are overruled. The court declines to rule on Defendants' remaining objections as they are not material to the disposition of the summary judgment motion. Plaintiff alleges that Defendants owed Plaintiff the level of skill and care that a reasonably careful lawyer would use in similar circ...

Excerpt: ...�� discovery responses. Plaintiff's initial responses to RFPs and Special Interrogatories included only boilerplate objections. (Def.'s Ex. O, P.) Further, while Plaintiff did provide substantive responses to the Form Interrogatories, those interrogatories are not sufficiently comprehensive such that Plaintiff's responses preclude the possibility that Plaintiff may possess or reasonably obtain evidence sufficient to establish her claim. (Weber v....

Excerpt: ...al examination, the party shall obtain leave of court. [¶] (b) A motion for examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Code of Civil Procedure section 2016.040 explain...

Excerpt: ... B. As such, the defendants' motion to compel arbitration as to the plaintiff's claims against Defendants is granted. The arbitration clause may be enforced by non-signatory party defendant Tanya Eisenman because the facts alleged against her are intertwined with the allegations made by and against signatory parties Plaintiff and Defendant Brighton Management LLC and the obligations imposed and contemplated by the Employee Handbook. General Autho...

Excerpt: ... lien. (Id.) Under Civil Code §8488(a), “[t]he claimant has the burden of proof as to the validity of the lien.” Here, Ms. Dalessandro has presented evidence to demonstrate that she had procured financing for some if not all of the construction, through a “HERO” financing program, with the knowledge and assistance of Plaintiff YYB Construction, Inc. (Motion, Ex. 2; Dalessandro Decl. ¶¶ 2-5.) Under Civil Code §8200(a), before recording...

Excerpt: ...l.App.3d 1231, 1235- 1236; Bowden v. Green (1982) 128 Cal.App.3d 65, 73-74; Bice v. Stevens (1958) 160 Cal.App.2d 222, 233.) Here, evidence has been presented by PAR and its former counsel that the dismissal at issue, with prejudice, was unauthorized and the result of an attorney error, and that this motion for relief was brought within a reasonable time after learning of the mistake. (Cabrera Decl. ¶¶ 2-5; Oberbeck Decl. ¶¶ 2-3; Ribiero Decl...

Excerpt: ...d. Evid. Code, § 452(d); Poseidon Development, Inc. v. Woodland Lane States, LLC (2007) 152 Cal.App.4th 1106, 1117. Pursuant to CCP section 436 the court may strike out “...any irrelevant, false, or improper matter inserted in any pleading.” “Courts have inherent authority to strike scandalous and abusive statements in pleadings.” Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1070. “An ‘immaterial allegation' means ‘irrelevant matter' a...

Excerpt: ...ess include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery. . . . [¶] (g) Disobeying a court order to provide discovery.” Code of Civil Procedure section 2023.030, provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after ...

Excerpt: ...e of these documents and their legal effect. Although the court takes judicial notice of the existence of the documents and the clear legal effects, the court is not required to accept the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) As to Plaintiffs LUGO and ZAMUDIO, the Court finds Plaintiffs have sufficiently alleged standing to assert their claims. Plaintiffs LU...

Excerpt: ...entify any specific repair facility, literature, or replacement part. 4th cause of action, breach of express warranty. The complaint states facts sufficient to constitute this cause of action. (Cal. Civil Code, § 1794; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199 [“plaintiff may plead the legal effect of the contract”]; Compl. ¶¶ 7, 74-77.) 5th cause of action, breach of implied warranty o...

Excerpt: ...ining the current method of calculating and/or paying commissions, and is DENIED as to the allegations referencing “independent contractors” and Labor Code section 226.8. Defendants' unopposed Request for Judicial Notice is GRANTED but not for the truth of any statements made in the exhibits thereto. (See Notice of Non-Opp. to RJN [ROA 57].) The Court declines Plaintiff's last-minute request (filed at 5:30 p.m. on April 3, 2019) to take judic...

Excerpt: ...provided by Section 1013 if service is by mail [5 days if the place of address is within the State of California, 10 days if it is outside of California but within the United States, and 20 days if it is outside the United States]." Here, the subpoenas were issued 12-13- 18. The required Notice to Consumer was served personally on plaintiff the following day, 12-14-18. Plaintiff was not served at least 5 days prior to service on the custodian of ...

Excerpt: ...he identification of potential witnesses. “'The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery.'. . . Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations. . . .” Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249–1250. P...

Excerpt: ...Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) Expert testimony is also required to demonstrate causation to a reasonable medical probability. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 (Jones); Chakalis, supra, 205 Cal.App.4th at p. 1572.) Defendant met its initial burden on this motion by demonstrating the lack of breach or causation through the declaration of Daniel ...

Excerpt: ...ial facts exists as to that cause of action or a defense thereto. (Id.) Here, Plaintiff has failed to meet his burden. Both of the causes of action asserted require, as an element of the claim, that Plaintiff establish damages. On a motion for summary judgment, the moving plaintiff must show both the fact and the amount of damages. (Pajaro Valley Water Management Agency v. McGrath(2005) 128 Cal.App.4th 1093, 1106.) Here, Plaintiff has asserted th...

Excerpt: ...any and the personal guarantor Bradley Johnson. The complaint alleges causes of action for breach of contract, account stated and breach of guaranty. Authorities: The requisite elements for a prima facie showing of breach of contract are (1) existence of a contract, (2) the plaintiff's performance or excuse for non-performance, (3) defendant's breach, and (4) damage to plaintiff therefrom. Wall Street Network, Ltd. v. New York Times Co. (2008) 16...

Excerpt: ... §340(a). The doctrine of equitable tolling does not apply in this case (although the doctrine might apply in some other PAGA case). A PAGA plaintiff may recover for violations that continue through the date of trial if they were properly included in the PAGA letter and the Complaint. PAGA cases are subject to a one-year statute of limitations. Brown v. Ralphs Grocery Co. (2018) 28 Cal. App. 5th 824, 839. This PAGA case is an action on a statute...

Excerpt: ...greement. Counsel also must provide a red-lined version of any revised papers, including the proposed letter to the aggrieved employees. The moving points and authorities are not numbered, they are 33 pages long, far exceeding the 15-page limit of CRC Rule 3.1113(d) and even the 20-page limit of CRC Rule 3.764(c)(2) for motions to certify a class, which usually are contested, and they fail to include a table of contents or table of authorities, a...

Excerpt: ...le, “Giving back chump change” is not an actual cause of action; being rude to someone of Indian descent, though improper and unkind, is not a violation of Title VII of the Civil Rights Act of 1964, which relates to discrimination by employers; Civ. Code §§ 4080, 4100, 6528, and 6534 are code sections that contain only definitions, which cannot actually be violated; and many other issues that the Court will not specifically address at this ...

Excerpt: ...h Cause of Action against All Surface for breach of contract is STAYED pending resolution of Pacific Construction Group's (“Pacific's”) fifth cause of action for breach of contract in its cross-complaint against All Surface pending in the action entitled Stapleton v. Pacific Construction Group, Los Angeles Superior Court case no. BC613913 (the “Stapleton action”). The action before this Court involves insurance coverage issues arising fro...

Excerpt: ...r writ of attachment against defendant Christina Nguyen. Application denied. Defendant's evidence submitted in opposition to the application reveals that there was no consideration for the execution of the guaranty of payment by defendant Christina Nguyen. Thus plaintiff failed to show a probability of success on his contract claim against defendant Christina Nguyen. (See Civ. Code § 1689, subd. (b)(4)). Additionally, the motion is denied on the...

Excerpt: ...act. Little v. Pullman (2013) 219 Cal.App.4 th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other docum...

Excerpt: ...e court is required to take judicial notice. See, CCP § 437(a). Specific facts, not a mere restatement of law, must be pled to support such a prayer for punitive damages. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. The facts contained in the FACC are nothing more than generalities and legal conclusions. T...

Excerpt: ...n the moving party, Defendant Vandegrift, to show not only that (a) venue is proper in Los Angeles County, but also that (b) venue is improper in Orange County under any applicable theory. (Weil & Brown, California Practice Guide, (The Rutter Group) at ¶ 3:573; 3:575; La Mirada Community Hospital v. Superior Court (1967) 249 Cal.App.2d 39, 42; Anaheim Extrusion Co. v. Superior Court (1985) 170 Cal.App.3d 1201, 1203.) B. General Venue Rule -- CCP...

Excerpt: ... resolving the objections raised by the motion to strike. (B) That the party who filed the pleading subject to the motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” Defendants have not filed a meet and confer declaration and therefore failed to comply with section 435.5. The court continues the motion filed by Defendants Prospect/Orange LLC and Williams R...

Excerpt: ... which the remaining claims would proceed – i.e. that there would be no stay on the remaining claims to be litigated in this court. Defendants do not dispute that this was so. The responding defendants changed their position on that after the hearing. That change in circumstances could not have been presented for the prior hearing, as it had not yet occurred. Plaintiff has thus shown a new “fact” or “circumstance” which is at least argu...

Excerpt: ...iling party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b); see alsoCal. Civ. Code § 1794(d). If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable or necessary. Foothill-De Anza Comm. College Dist. v. Emerich (2...

Excerpt: ...ndants were substantially justified in opposing this motion. The parties are ordered to meet and confer to draft and execute a protective order to preserve the plaintiff's privacy rights and limit the use of the plaintiff's medical records to the litigation of this case. Subpoenas: 1. HOAG Memorial Hospital: Defendant seeks all documents and records, from 6/11/2016 to present for plaintiff. 2. HOAG Memorial Hospital (Billing): Defendant seeks any...

Excerpt: ...rial date. (See Cal. Rules of Court, rule 3.1332(a).) Motion to Modify/Quash Deposition Subpoenas The motions of defendants Susan Su Chun Wu and Samuel Wu, and cross-complainant SC Enterprises Investment, LLC, to modify or quash certain deposition subpoenas are, at the request of the parties, OFF CALENDAR. (See ROAs 307, 310.) Motion of Non-Party Witness Charles Ting The motion of non-party witness Charles Ting for a protective order for himself ...

Excerpt: ...o the separate statement by reference. The separate statement must include--for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested--the following: (1) The text of the request, interrogatory, question, or inspection demand; (2) The text of each response, answer, or objection, and any further responses or answers; (3) A s...

Excerpt: ...ration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron Corp. v. Ortho Diagnostic Sys. Inc. (9th Cir.2000) 207 F.3d 1126, 1130.) If these requirements are met, “the court...

Excerpt: ...1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the c...

Excerpt: ...der Code of Civil Procedure §430.40, a demurrer is to be filed within 30 days after service of the pleading. Id. at subd.(a). However, the Court has “discretion to consider” an untimely demurrer. See Jackson v. Doe (2011) 192 Cal.App.4th 742, 749 (citing Code of Civil Procedure §473(a)(1)). Here, Caltrans filed a proof of service for the cross-complaint that indicates that Cross-Defendant was served personally on 01/17/19. Cross-Defendant's...

Excerpt: ...ion in the FAC are alleged under the Song- Beverly Act, Civil Code §1790 et seq. The first three causes of action are brought under Section 1793.2, and are for (1) breach of express warranty (subd.(d)), (2) failure to repair in order to conform to warranty (subd.(b)), and (3) failure to make available to service facility adequate literature and replacement parts to effect repairs (subd.(a)(3)). The Fourth Cause of Action is for breach of express...

Excerpt: ...intiff's agent in trying to save his properties from foreclosure. He gave the defendants over $100,000 and instead of using this money to pay the lender the defendants converted it to their own use and the properties were lost. It does not allege that the defendants were acting in any professional capacity. An attorney cannot convert an otherwise timely action into one that is time-barred under section 340.6 simply by saying in the text of a demu...

Excerpt: ...diate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.” (Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666, 673; see also Teal v. Superior Court (2014) 60 Cal.4th 595, 599.) Plaintiff has not established that any of its members are suffering “immediate or threatened injury” as a result of the chall...

Excerpt: ...ision which appears on pages 3 and 4 of the Terms and Conditions of the contract states in its entirety: “Arbitration of Disputes. Any controversy or claim arising out of or related to this contract, or the breach thereof, shall be resolved by binding arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association and judgment upon any award rendered by the arbitrator(s) may be entered in any c...

Excerpt: ...e motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Defendants argue that allowing the amendment will not pr...

Excerpt: ...to quiet title must be verified and must include: (1) a description of the property including both its legal description and its street address or common designation; (2) plaintiff's title and the basis upon which it is asserted; (3) the adverse claims as against which a determination is sought; (4) the date as of which a determination is sought and, if other than the date the complaint is filed, a statement why the determination is sought as of ...