Excerpt: ...ier Bank and its E&O carrier, Progressive. Although the latter denied coverage, it eventually agreed to pay Premier $350,000 with a release of any related claims for reimbursement. Plaintiffs asked Premier Bank to pay them for their investigatory (albeit non-retained) efforts in the approximate amount of $170,000. Premier Bank initially refused, but ultimately paid plaintiffs $99,000 in exchange for a release of all future claims against the bank...

Excerpt: ...r to Plaintiff's attorney and then following up with an email. From the information before the Court, Plaintiff's counsel did not respond to this effort. This is unacceptable especially in the face of the presentation of a massive 32-count complaint, which is the subject of a demurrer and motion to strike. Plaintiff's attorney is ordered to engage in meaningful meet and confer dialogue in the future and the Court intends to enforce this requireme...

Excerpt: ...s. Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) So, too, is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 9...

Excerpt: ...Fourth and Fifth Causes of Action for wrongful termination in violation of public policy and termination in violation of the California Constitution are not grounded solely on the FEHA, and that ruling does not mandate dismissal of these causes of action. The gravamen of Plaintiff's Third Amended Complaint (TAC) is that Biola refused to promote, demoted and ultimately terminated Plaintiff due to race and gender. Plaintiff has alleged Biola's alle...

Excerpt: ...4 th167, 184. The degree of detail required depends on the extent to which the defendant in fairness needs such detail. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Doe v. City of Los Angeles (2007) 42 Cal.4 th 531, 549-550; Zelig v. County of Los Angeles (2002) 27 Cal.4 th 1112, 1126. A demurrer must be denied if the pleading states a cause of action under any legal theory, irre...

Excerpt: ...because ambiguities can be clarified 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 knowle...

Excerpt: ...ndants Helite, SATRA, and Dover Saddlery of the settlement amount. (Ocrant Decl., at ¶ 10.) Applicable Law There is no precise yardstick for measuring “good faith” of a settlement with one of several tortfeasors. But the court must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors. To accomplish this, the settlement must be within the “reasonable range”...

Excerpt: ...s” Bobbi Franke, Elena Frenkel, Steve DiBenedetto, and “director” Suzanne Krivda aka Suzanne King-Smith, plaintiffs cannot produce clear and convincing evidence that these “vice presidents” or “directors” had the requisite authority over corporate policy regarding safety issues associated with failing to install flame arrestors. (Moving Party Separate Statement, Fact Nos. 1, 2, 3, 36, 38, 39, 40; Gelfo v. Lockheed Martin Corp(2006) ...

Excerpt: ... not recover additional waiting time penalties under Labor Code § 203 in connection with Plaintiff's First Cause of Action. However, the First Cause of Action, which is based on several alleged Labor Code violations and includes a prayer for damages as well as penalties, is not barred by the doctrine of res judicata. The issue before this Court is whether putative class members in this action who are bound by the release approved by the court pu...

Excerpt: ...48 Cal.3d 341 (Borello). The Court examined the nature of Plaintiffs' PAGA claims and determined that the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, applied to Plaintiffs' PAGA claims to the extent they are based on alleged Labor Code violations which, in turn, are rooted and inseparably tied to the applicable wage order, which included all of Plaintiffs' claims other than the gratuity claim. (See 7/...

Excerpt: ...998, which Plaintiff did not timely accept. The offers, which are attached to the McLeod Declaration, fail to specify in any respect how the offer may be accepted. Therefore, the cost-shifting provision was not triggered. (CCP § 998(b) [“[t]he written offer shall include … a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted]; Perez v. Torres (2012) 206 Cal.App.4th ...

Excerpt: ...s of the demurrer, the Court must accept those allegations as true. It is further alleged these defendants had been made aware of prior conduct by defendant Thomas. (See Paras. 22, 23, and 29.) Second Cause of Action (Negligence Per Se): OVERRULED. These defendants are mandatory reporters who were on notice of the actions of Thomas, both from the prior report from a different party and the earlier report from the plaintiff. (See Paras. 46-47.) Th...

Excerpt: ...from Plaintiff and his wife, where both indicate the fall occurred in November of 2014, prior to Thanksgiving and consequently, more than two years prior to the filing of the complaint, on November 29, 2016. (See ¶8-¶11 of Benler-Ward Declaration and Exhibits B and C thereto.) Based on the above, Defendant asserts the action will likely be found to be barred, such that a separate trial on the statute of limitations will serve judicial economy. ...

Excerpt: ...s to the first cause of action for Breach of Contract, Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98, “To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damages to the plaintiff. [Citations.]” The court SUSTAINS Defendants' Demurrer to the first cause of ac...

Excerpt: ...of the nuisance.” (See Reinhard v. Lawrence Warehouse Co. (1940) 41 Cal.App.2d 741, 746.) Similarly, “[g]enerally, ‘a landlord is not responsible to other parties for the misconduct or injurious acts of his tenant to whom his estate has been leased for a lawful and proper purpose when there is no nuisance…at the time of the leasing.” (See Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4 th 1360, 1373.) In this instance, the...

Excerpt: ...cial notice of Exhibits 1 through 4 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The Court DENIES Plaintiff's request for judicial notice of Exhibit A as there is no basis for same under the Evidence Code. As to the 1 st COA (tortious breach of contract), this COA is not sufficiently pled be...

Excerpt: ...equest for Judicial Notice as to Exhibit 4 pursuant to Evidence Code section 452, subdivision (d). The court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) As to federal preemption, Defendant failed to establish that Plaintiff's claims are preempted by the Food Drug and Cosmetics Act (FDCA). Defendant contends, “Congress has specifically authorized th...

Excerpt: ...nd that this incompetence and unfitness created a particular risk. However, the TAC fails to allege any specific facts in support of the conclusory allegations. (See TAC, ¶¶ 27-39.) Plaintiffs have already been given three opportunities to adequately allege facts to support this claim, but have failed to do so. Thus, the demurrer to the third cause of action is sustained withoutleave to amend. Plaintiffs, however, may seek leave to amend if suc...

Excerpt: ... moves to file Defendant's Cross-Complaint under seal because it “. . . includes confidential material, referenced attorney work product privilege material and a court-ordered anonymized confidential matter. . . .” (Defendant's Notice of Motion and Motion for Leave to File Cross-Complaint and Parties' Answers to Complaint Under Seal Pursuant to C.R.C. 2.551(b) (Motion), filed on 11-14-18; 3:9-12.) California Rules of Court, rule 2.551 (b)(4),...

Excerpt: ...en to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth” in the separate statement. Here, Defendant seeks further responses to Special Interrogatory Nos. 99, 100, 101, 102, 103, 104, 106, 107, 108, 111, 113, and 114. Each of the interrogatories at issue referenc...

Excerpt: ...mation sought to be discovered. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party . . . .” Code of Civil Proce...

Excerpt: ...c 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Code of Civil Procedure section 425.16, subdivision (e) “As used in thi...

Excerpt: ... inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an a...

Excerpt: ...ists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. . . .” “In deciding whether to issue a preliminary injunction, a trial court must evaluate two interrelated factors: (i) the likelihood that the party seeking the injunction will ultimately prevail on the merits of his [or her] claim, and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance ...

Excerpt: ...); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal. 4th 631, 638.) “Fraud must be pleaded with specificity rather than with ‘general and conclusory' allegations. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) “General and conclusory allegations do not suffice.” (Lazar v. Superior Court (1...

Excerpt: ...ant Tam Nguyen for a vertical machining center in defendant's possession – apparently, the same piece of machinery. On 2/25/2019, the Court continued the hearing on both applications and permitted Plaintiff to file and serve supplemental supporting papers to address the deficiencies noted in the Minute Order. Plaintiff timely filed a supplemental declaration on 2/26/2019 and timely served it by personal service on Alva and substitute service on...

Excerpt: ...e inaccurate. Recorded documents contradict the allegation that defendant lacks the power to foreclose. (See Def. RFJN Ex. C; see also Scott v. JPMorgan Chase Bank, NA (2013) 214 Cal.App.4th 743, 751). The assignment of a deed of trust need not be recorded. (See Haynes v. ENC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336-37). To the extent this claim is based upon Civ. Code § 2024.12, as of 2017 no such private right of action existed. 2nd caus...

Excerpt: ... not base this ruling upon Mission Hill's corporate status or suspension of such status. The court finds that Mission Hill lacks standing to bring any of the pled causes of action against the cross defendant. Therefore, a determination regarding the suspension argument is not relevant. First, Third and Fourth Causes of Action - Statute of Limitations: Cross-Defendant demurs to the First, Third and Fourth Causes of Action of the First Amended Cros...

Excerpt: ...secrets claim. (K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc. (2009) 171 Cal.App.4th 939, 958.) Depending on the particular facts pleaded, the statute can operate to displace claims such as breach of confidence, interference with contract, and unfair competition. (Id. at 958- 59.) The CUTSA “by its terms does not displace a contract claim, even if it is based on the misappropriation of a trade secret.” (Angelica Textile Servs....

Excerpt: ...The Court grants Defendant's unopposed Request for Judicial Notice as to Exhibits 1 through 7. These documents, and their legal effect, may properly be judicially noticed under Evidence Code § 452 (f) as to the existence of the recorded documents and their legal consequence. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4 th 256, 264). Merits re Negligence Claim Plaintiff's sparse Complaint alleges that Defendant acted negligently whe...

Excerpt: ...the parties' respective motions. A) Motion for Sanctions Plaintiffs Yan Sui and Pei-Yu Yang's (“Plaintiffs” together) Motion for Sanctions (“Motion”) is DENIED. Once again Plaintiffs filed an overly lengthy pleading, this time one of approximately 44-pages. This is well above the 15-page maximum permitted in filing a motion pursuant to CRC Rule 3.1113(d). The Court will not consider any portion of the Motion in excess of the 15-page limit...

Excerpt: ...(Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59.) Defendant failed to present such facts regarding its alleged vicarious liability for defendant Stephanie Ricci's alleged failure to obtain informed consent. (See Wilson v. Merritt (2006) 142 Cal.App.4th 1125, 1133–1134 [informed consent]; Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296–297 [vicarious liability]; see also SAC ¶¶ 4, 6.) Plaintiff Aneta Michen...

Excerpt: ...h inherent and statutory. For example, CCP § 1048(b) authorizes a trial court to try separately proceedings to avoid prejudice, for convenience, or to permit greater expedience and economy: "The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separ...

Excerpt: ...as waived her right to privacy over the personal injuries she has put at issue in this case. (See Palay v. Super. Ct. (1993) 18 Cal.App.4th 919, 934 [disapproved on other grounds in Williams v. Super. Ct. (2017) 3 Cal.5th 531, 556-557]; Reuter v. Super. Ct. (1979) 93 Cal.App.3d 332, 340; Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842.) Further, while Defendants need not show good cause for the examinations, they have done so by providing evidence...

Excerpt: ... that took several months – the parties have advised the Court that they succeeded in narrowing the requests that are in dispute to Request Nos. 6, 7, 13, 14, 16, 17, 18, 21, 22, 24, 25, 28, 29, and 30. 4/8/2019 Final Joint Status Report, 9:10-18:22. Based on the 4/8/2019 Final Joint Status Report, Plaintiff no longer seeks an order compelling Defendant to serve further responses. Plaintiff now seeks an order that: (1) directs Defendant to comp...

Excerpt: ...the FAC fails to allege the existence of an enforceable contract between plaintiff and CitiMortgage, plaintiff's performance under the loan, breach or damages. The deed of trust is between plaintiff and Wall Street Mortgage Bankers Ltd, not CitiMortgage. The cited contractual language does not require a loan servicer to give notice of acceleration of the subject mortgage loan, it requires the lender to do so. An agent is generally not liable upon...

Excerpt: ...here, also lacks capacity to sue in California. (CM Record Corp. v. MCA Records, Inc. (1985) 168 Cal.App.3d 965, 968-969.) The lack of capacity cannot be cured merely by assigning the claim to another entity. For example, if a suspended corporation assigns a judgment to a corporation in good standing, the assignee corporation cannot enforce the judgment. (Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 313...

Excerpt: ...ividually liable for the entities' obligations and debts. Because the running of the statute of limitations does not appear “clearly and affirmatively” from the dates alleged in the 2 ndAC, the statute of limitations defense does not provide grounds to sustain the demurrer. See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4 th 1397, 1403. The 2 ndAC also alleges sufficient facts to state a cause or action for Breach or the Implied Co...

Excerpt: ...tevens v. Superior Court (1999) 75 Cal.App.4th 594, 601 [“For the purpose of determining the effect of a complaint, its allegations are liberally construed, with a view toward substantial justice.”].) First Cause of Action - Breach of Fiduciary Duty “‘The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.'” ...

Excerpt: ...inancial infusion of $10,000 back, but very little for her purported ownership interest. Before the Court is a demurrer to the 1 st (fraud), 3 rd(constructive fraud), 6 th (unfair practices), 7 th (securities fraud), 8 th (sale of unqualified security), 9 th (dissolution), and 10 th(dissolution) causes of action in the Complaint. The parties have engaged in the necessary meet and confer before bringing this matter to Court, but were unable to fin...

Excerpt: ...as initiated between the parties without the intervention of the court. Arbitrator Hart has been appointed and the arbitration is under way. Evidence has been taken and briefing is scheduled. On 5/22/18, shortly before his termination, Chatansombute filed a superior court action (2018-00994376) seeking a writ of mandate and damages for violation of the Peace Officer's Bill of Rights (POBRA.) That matter is also currently pending. Chatansombute re...

Excerpt: ...rvices provided and billed to plaintiff Leslie A. Andrews (Andrews) personally as well as her business entities. (SAC at ¶¶ 25, 27, 36, 47, 62-76.) These issues fail to address defendants' alleged misconduct directed at Andrews personally. Summary adjudication of only a portion of a cause of action is not permitted. (See Code Civ. Proc., § 437c, subd. (f)(1).) As for defendants' reliance on Lilienthal & Fowler v Superior Court (1993) 12 Cal.Ap...

Excerpt: ...lication for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. A motion for reconsideration ma...

Excerpt: ... action. The Suns may not have the court summarily adjudicate whether documents were forged, or whether real property interests are subject to certain liens, both of which constitute the four issues the Suns seek adjudicated. For example, two of the relevant causes of action seek declarations that trust deeds were signed by other parties, yet this motion addresses only if reconveyances were signed by the Suns. In addition, the Separate Statement ...

Excerpt: ... action. The Suns may not have the court summarily adjudicate whether documents were forged, or whether real property interests are subject to certain liens, both of which constitute the four issues the Suns seek adjudicated. For example, two of the relevant causes of action seek declarations that trust deeds were signed by other parties, yet this motion addresses only if reconveyances were signed by the Suns. In addition, the Separate Statement ...

Excerpt: ...ee passage or use, in the customary manner, of any . . . street or highway . . . .” Civ. Code § 3479. “In distinction to trespass, liability for nuisance does not require proof of damage to the plaintiff's property; proof of interference with the plaintiff's use and enjoyment of that property is sufficient.” San Diego Gas & Elec. Co. v. Superior Court (“SDG&E”) (1996) 13 Cal. 4th 893, 937. “The first additional requirement for recove...

Excerpt: ... FLSA cause of action and defer ruling on the motion to compel pending resolution of the overlapping claims under the Labor Code and UCL involving Defendant's alleged failure to pay overtime and reimburse business expenses. The latter ruling would be made pursuant to CCP § 1281.2(d) and the Court's own inherent authority to issue stays and manage the cases before it. The Arbitration Agreement signed by Plaintiff Raigoza on which Defendant relies...

Excerpt: ...be accompanied by a separate statement. (Code Civ. Proc., §§ 2030.300, 2033.290, 2031.310, 2016.040; Cal. Rules of Court, rule 3.1345, subd. (a).) Defendant satisfied each of these requirements. Special Interrogatory No. 16 asks: Do you contend that you have in your possession journals in which you write down descriptions of past events and occurrences so as to assist in guiding your memory recall ability? Plaintiff responded: Objection: Violat...

Excerpt: ...y move for an order compelling a further response to requests for admission if that party deems that either or both of the following apply: an answer to a particular request is evasive or incomplete; and/or an objection to a particular request is without merit or too general. If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) RFA Nos. ...

Excerpt: ...5 days of this order. The plaintiff's request for monetary sanctions is denied. Form Interrogatories Nos. 3.7, 12.2, 12.3, 12.7, 15.1, 16.9 and 16.10: Defendant Kathy Nguyen dba Zara Nails & Spa has indicated in her Opposition brief that she will provide amended responses to Form Interrogatories Nos. 3.7, 12.2, 12.3, 12.7, 15.1, 16.9 and 16.10; as such, the motion to compel further responses will be moot if further responses are provided before t...

Excerpt: ...ts employees for work-related cell phone costs. On 11/7/15, Isabel Garibay (replaced Gama as named plaintiff in the Gama action. The following year, on 3/9/16, Plaintiff Uribe filed a proposed class action in OCSC, alleging that Crown Building Maintenance Co. failed to reimburse its employees for work-related uniform costs. On 11/13/17, Uribe filed a motion for preliminary approval of a settlement. In connection with the motion and the settlement...

Excerpt: ...der § 558 is subject to arbitration based on Esparza v. KS Industries, LP (2017) 13 Cal.App.5th 1228, review denied (Nov. 15, 2017). The Court agrees. Although the Fourth District, Division One came to the contrary conclusion in Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, review was granted in that matter and so it has no precedential effect. CRC, Rule 8.1115(e). Accordingly, the Court must follow Esparza and Defendant's motion is granted. Dur...

Excerpt: ... Josiah N. Drew because he does not have any relevant personal knowledge about the events at issue in this case, and any second-hand information he has is protected by the attorney-client, attorney work product and/or mediation privileges. Drew is an in-house attorney for defendant and is responsible for managing defense counsel in the defense of this lawsuit. Plaintiff even admits in her opposition that Drew acted as defendant's main point of co...

Excerpt: ... Josiah N. Drew because he does not have any relevant personal knowledge about the events at issue in this case, and any second-hand information he has is protected by the attorney-client, attorney work product and/or mediation privileges. Drew is an in-house attorney for defendant and is responsible for managing defense counsel in the defense of this lawsuit. Plaintiff even admits in her opposition that Drew acted as defendant's main point of co...

Excerpt: ...ters' Report (1938) 12 Cal.2d 266, 274; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [whether cost item was reasonable and necessary presents question of fact for trial court and its decision is reviewed for abuse of discretion].) Allowable costs must also be reasonable in amount. (Code Civ. Proc., § 1033.5, subd. (c)(3).) If the items on their face appear to be proper charges, the verified memorandum of costs is prima fa...

Excerpt: ...position is untimely, Pacifica Defendants did not object to the opposition based on untimeliness and the court exercises its discretion to consider the late opposition. (Code Civ. Proc., § 1290.6; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847.) Evidentiary Objections Plaintiffs evidentiary objection numbers 1 and 2 are sustained. Applicable Law Code of Civil Procedure section 1281.2 provides, inter alia: On petition of a pa...

Excerpt: ...e payable to Plaintiff on or before May 13, 2019. This matter was initially set for trial on February 11, 2019. [ROA 469.] On February 1, 2019, the trial was trailed to February 14, 2019. [ROA 708.] On February 14, 2019, the trial was trailed again to August 19, 2019. [ROA 738.] The Court did not reopen discovery or extend the motion cut-off dates when it trailed the trial. (Id.) Pursuant to CCP § 2024.020(a), a party has the right to have motio...

Excerpt: ...urt, rule 3.1350(b). Thus, the presence of any triable issue of material fact requires denial of the motion. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926; Weil & Brown, Cal.Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2018) § 10:88.) Had notice been properly given, the defendants might be entitled to summary adjudication of issues as to the Third, Fourth, and Fifth Causes of Action. But there is a triable issue of material fact as to...

Excerpt: ...Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140; in accord, Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526. Although some courts of appeal have treated it as a separate cause of action, those cases involved statutes employing the term itself. See, e.g., Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412; Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 945-946. Our ...

Excerpt: ... cannot be liable for this claim because only the seller of the property has the obligation to make disclosures on the transfer disclosure statement under Civ. Code § 1102.3. Section 1102.3 provides that the seller of any single-family real property must provide a prospective buyer with a completed written statement on the form specified in section 1102.6 and make the disclosures required by that form within specified times. However, this does n...

Excerpt: ...yment, because he sent three emails to his supervisor Nylen, complaining, among other things, about workplace conditions and the mishandling of his injury report. (Complaint at ¶¶ 53-55.) Labor Code 1102.5 (b) provides that: “(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose informatio...

Excerpt: ...rty” is shown.” Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.” Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564. “[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Declaration: Cal. Rules of Court, R...

Excerpt: ...judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” The “settlement” that is the subject of the motion is a written settlement that was entered into in February 2018, which is before the instant action was filed on April 5, 2018. Accordingly, there does not appear to have been any...

Excerpt: ....1350(b) states in pertinent part as follows: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.” Castillo did not state the summary adjudication issues verbatim in the s...

Excerpt: ...ovided by his client but there was no answer. Counsel also sent an email to the client at the email address that she provided and also contacted the attorney who referred the client to counsel, but to no avail. The question before the Court is whether counsel gave proper email service on his client under CRC 3.1362 (d)(2). Proper email service of a motion to be relieved as counsel is governed by CRC 3.1362 (d)(2), which provides: “The notice of...

Excerpt: ...or appointment of a discovery receiver at Defendants' cost and sanctions. Timeliness The motion to compel must be “made no later than 60 days after the completion of the record of the deposition.” CCP § 2025.480(b). It is undisputed that Plaintiff initially filed and served this motion on 1/25/19 and that it was timely made. That motion was set for hearing on 3/28/19. It is also undisputed that Plaintiff's motion filed and served on 1/25 was...

Excerpt: ...fendant opposes the motion, claiming that the meet and confer process was not followed and that it has no obligation to provide information to disprove constructive discharge until Plaintiff establishes that constructive discharge. Defendant therefore contends that its answer to interrogatory 15.1 was sufficient and asks for a monetary sanction of $1200 against plaintiff and his attorney. Defendant's answer contains 36 affirmative defenses. After...

Excerpt: ...s pendens can be recorded and the serious consequences flowing from it.” (Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 913.) A number of cases have expressed the following principle: “a claim that seeks an interest in real property merely for the purpose of securing a money damage judgment does not support the recording of a lis pendens.” (Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 912; Wardley Development Inc. v. Supe...

Excerpt: ...ntional interference on the basis that it arises from protected activity. Before drilling down into the claim itself, it is necessary to briefly revisit other lawsuits touching upon 21411 Vista Drive in Rancho Santa Margarita. The home is owned in trust by Jennifer Loeffler (hereinafter “Loeffler”), who previously lived there with her common law husband Attorney Steven Radar (hereinafter “Radar”). The home is now leased as a sober living ...

Excerpt: .... To state a cause of action for inverse condemnation, the plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff's property. (Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 831, 842.) In its Demurrer, Caltrans does not contend that a street sweeping project is not a “public project or impro...

Excerpt: ...erg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion 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.”].) Additionally, the Court construes the absence of a memorandum as a waiver of all grounds not supported. (Cal. Rules of Ct., Rule 3.1113(a).) Plaintiff also al...

Excerpt: ... 3 rd cause of action under B&P Code § 17531 and § 17535 The demurrer is sustained with leave to amend. Pleading a cause of action for violation of a statute requires more than reiterating the language of the statute. (See Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478.) On demurrer, the court looks for well-pleaded material facts, versus contentions and conclusions of law or conclusions of fact. (See WA Southwest 2, L...

Excerpt: ... lead counsel is denied. The Court finds that both firms are competent and experienced and either could have been appointed as lead counsel. Given the apparently equal competence of the two firms in this case, the Court exercises its discretion and appoints the firm that filed the first complaint as lead counsel in this matter. As lead counsel, Lawyers for Justice, PC will be required to:  oversee case management;  sign and file all pleadin...

Excerpt: ...fices of David Yerushalmi, P.C. was counsel for Hazak Associates, whose ex parte application to file a complaint in intervention had been denied. (See ROA nos. 308, 326.) Given that Defendant Shavolian has not filed any documents to indicate either a change in counsel of record or association of counsel, service of the motion on David Yerushalmi is insufficient. Plaintiff shall promptly serve its motion upon Defendant's counsel of record in this ...

Excerpt: ...er shall oversee and verify that David Shiokari is properly accounting for Tomko, T & N Walnut, and T & N Fountain assets, income and expenses and approve and oversee any real property sales by Tomko, T & N Walnut, and T & N Fountain. To accomplish such tasks the receiver shall be given immediate and unfettered access to any and all partnership records and accounts and responsible individuals, including but not limited to David Shiokari, on a bi-...

Excerpt: ... Motion is thus defective on its face and fails on its own merits. Microsoft Corporation's request for sanctions is GRANTED IN PART under C.C.P. § 2031.310(h), as it does not appear that Plaintiff acted with substantial justification or that other circumstances would make the imposition of a sanction against Plaintiff unjust here. However, the sum sought appears to be an excessive sanction for opposition to this patently defective motion. Sancti...

Excerpt: ... the Court received any notice of a stay in this matter. Accordingly, the Court proceeds to rule on the motions which are before it. Garibay's Motion for Stay Invoking the rule of exclusive concurrent jurisdiction, Intervenor Isabel Garibay moves to stay this action pending resolution of Gama v. Able Services, et al., Case No. RG15773582, currently pending in Alameda Superior Court. In connection with her motion, Garibay requests that the Court t...

Excerpt: ...ies, LLC (SME) to vacate or modify the interpleader is GRANTED IN PART and DENIED IN PART pursuant to the terms of this Order. The motion is granted solely as to SME's request for an order directing BNY Mellon (BNY) to release possession, custody and control over the Bond Portfolio to First Foundation Bank (FFB), which will maintain custody and control (not ownership) of the Portfolio pending further order of this Court in the same capacity that ...

Excerpt: ...e lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. Denial of leave to amend is rarely justified. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (“the policy favoring amendments is so strong that it is a rare case in which denial of leave to amend can be justified”). Plaintiff sued on behalf of “job coaches.” On...

Excerpt: ...s. Parties shall select a date and advise the court at the hearing. Plaintiff's Counsel has agreed to take the deposition in Orange County this time. Defendant is ordered to pay sanctions in the amount of $2,110 within 30 days to compensate Plaintiff for having to seek court intervention. When a deponent refuses to answer a deposition question, the deposing party may continue to examine the deponent regarding other matters, and subsequently move ...

Excerpt: ...utomatic stay on all state and federal proceedings against the debtor outside of the bankruptcy court, subject to certain statutory exceptions not relevant here. State courts in which action against the debtor are pending do not have the power to modify the automatic stay; only the bankruptcy court can do so. In re Gruntz (9 th Cir.2000) 202 F.3d 1074, 1082-83 (en banc). The automatic stay is self-executing and is effective upon filing the bankru...

Excerpt: ...y, education and employment information, although considered private information, may be relevant as to the veracity of R.C./A.C.'s statements at their respective depositions. This information is to be marked “Attorney's Eyes Only,” and is not to be shared with the any of the parties or the general public. Although Plaintiffs contend that they only seek answers to five questions, these questions seek to invade R.C.'s privacy in her mental hea...

Excerpt: ...ed upon new or different facts, circumstances, or law, make application to the same judge…to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances or law are claimed to be shown.” This motion was served and filed on 12/19/18. That was...

Excerpt: ...equests for Production (Set One) propounded to each within twenty days of service of the order. Caspino Decl. Ex. E. The order states that “[d]uring the hearing, the parties acknowledged that most if not all of the responsive documents will be produced by SCSA and they agreed that [the Dewykes were] not required to produce duplicative documents.” Id. The discovery referee ordered David Dewyke and Johnnie Dewyke to produce responsive documents...

Excerpt: ...nst Defendants on January 31, 2019. For the following reasons, Defendants' motion for summary judgment is granted. 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 plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgm...

Excerpt: ... therein. Because the plaintiffs did not meet their burden to show in the motion for summary judgment that the matter was at issue and there was no triable issue of material fact, the motion must be denied. Thus, the Court does not address the affirmative or other defenses raised. The belated attempt by the plaintiffs to address the affirmative defenses in their reply is procedurally improper and must be rejected. Merits Even if the Court were to...

Excerpt: ...t, Third Cause of Action for Account Stated, Fourth Cause of Action for Money Had and Received, and Fifth Cause of Action for Fraud. Materialness of Separate Statement Facts Defined by Moving Party: “Material facts” are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion. CRC 3.1350(a)(2). A moving...

Excerpt: ...tion was then served for that date. On 01/03/19, Frank served objections to the deposition notice. The objections were procedural only, relating to the selected date and the presumed duration. That same day, referee Balmages conducted a telephone conference with all parties. It is unclear if the topic of Frank's deposition was actually discussed, as the conference came to a halt over a retainer fee dispute. On 01/16/19, plaintiff filed an ex part...

Excerpt: ...f Douglas Ramirez to Serve Verified Responses Without Objections to Defendant's Supplemental Interrogatory and Imposition of Monetary Sanctions is GRANTED. (See Code Civ. Proc. § 2030.290). Motion No. 2. Defendant Mercury Insurance Group's Motion for Order Compelling Plaintiff Douglas Ramirez to Serve Verified Responses Without Objections and All Responsive Documents to Defendant's Supplemental Inspection Demand and Imposition of Monetary Sancti...

Excerpt: ...cility has refused to comply with a subpoena absent such a release. However, Dr. Saran has not shown why a motion to compel compliance with the subpoena was not thus sought, rather than this motion. Nor has he demonstrated that the types of “sensitive” information which may have thus been withheld should be discoverable here. Therefore, although Plaintiff has not filed opposition to the Motion, it fails on its own merits. However, defendants ...

Excerpt: ...mination. Code Civ. Proc., § 2032.310(a). A motion to obtain discovery by means of a mental examination must “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…and be accompanied by a meet and confer declaration under Section 2016.040.” Code Civ. Proc., § 2032.310(b). “Notice of the motion shall b...

Excerpt: ... v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 161.) The Court may decline to consider papers that are not filed in conformity with the Code. (Rancho Mirage Country Club Homeowners Association v. Hazelbaker (2016) 2 Cal.App.5th 252, 266; Cal. Rule Ct. 3.1300 (d).) The Court requests that the Plaintiff consider the guidelines below. A “Motion” is generally one set ...

Excerpt: ...” of the 2016 case because it deals with the same issues as this case. In fact, Plaintiff admits in his opposition that the same trade secrets are involved in both cases when he asserts he has the right to discovery in this case because he adequately described the trade secrets in the 2016 case. However, on 1-31-2019 the Court of Appeal dismissed Plaintiff's appeal. Therefore the 2016 case may be “resolved”. Accordingly, the court will hear...

Excerpt: ...rmines that” certain circumstances are present, such as waiver of the right to arbitrate, or the presence of third parties in the lawsuit. The petition is to allege “the existence of a written agreement to arbitrate the controversy,” and also that the other party “refuses to arbitrate such controversy.” In addition, pursuant to California Rule of Court 3.1330, the petition must state “the provisions of the written agreement and the pa...

Excerpt: ...Gansen Law Group, P.C. is not entitled to attorney fees on any other basis; for example, pursuant to a written fee agreement, as indicated in the Notice of Lien. Attorney Gansen has in fact provided evidence that the parties executed a written fee agreement providing for a lien. Absent evidence that Gansen Law Group, P.C. is not entitled to attorney fees at all, on any basis, moving party has not shown that the Notice of Lien contains “irreleva...

Excerpt: ..., the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” The statute defines “malice” to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” and oppression to mean “despicable conduct that subject...

Excerpt: ...,149) and parking ($81); (5) CourtCall costs ($86). Defendant contends that pursuant to Code of Civil Procedure § 1033(b)(1) and (2), the Court should exercise its discretion and deny all costs to Plaintiff. Section 1033(b) provides: “When a prevailing plaintiff in a limited civil case recovers less than the amount prescribed by law as the maximum limitation upon the jurisdiction of the small claims court, the following shall apply: (1) When t...

Excerpt: ...her costs, which are therefore allowed. (See CRC 3.1700(b).) The Court does not have discretion to deny a party who “fits” one of the four definitions of a prevailing party in CCP §1032(a)(4), the entitlement to receive costs of suit. Here, Defendant Certified Auto does “fit” one the definitions, it is a defendant in whose favor a dismissal was entered. Hence, it is entitled to costs as a matter of right. (See CCP §1032(a)(4); Charton v...

Excerpt: ...t is held to “open” defaults only when it makes substantive changes in the claims asserted. For example, increasing the damages demanded. [Leo v. Dunlap (1968) 260 CA2d 24, 27.] Here, Plaintiff's First Amended Complaint changes the amount of damages from $43,546 to $59,201. Thus, the filing of the First Amended Complaint with substantive changes opens the default. There is no filed Proof of Service for the First Amended Complaint. Thus, the c...

Excerpt: ...added in order to defeat the defendants' pending summary judgment motion. But the plaintiff asserts, and the declaration of attorney Mark Simowitz underscores, that the additional facts—including allegations that the defendant attorneys hid pertinent facts from the plaintiff—were only discovered as part of 11,194 pages of discovery produced January 22, 2019, well after the summary judgment motion was filed. None of the authorities cited by th...