Excerpt: ... the Prayer for Relief), and that portion of Paragraph 21 that states “and subject to fines and penalties in the amount of at least $25,000 per day for every day the Spill continues to go underreported and the City fails to remove the contamination from the Property.” The Motion is DENIED as to the remaining allegations in Paragraph 21. As explained below, while Plaintiff is prohibited from seeking to recover in this action statutory penaltie...

Excerpt: ..., 24, and 31-36. Plaintiffs South Coast Shipyard, Inc. is a business located in Newport Beach which performs repairs and maintenance on large boats and ships. Plaintiff Peter Stewart is the president of South Coast Shipyard, Inc. Plaintiffs allege they suffered damage to their property as a result of development of NPB Marina LLC on a neighboring property. Defendants Clauss Construction and Patrick Michael Clauss (collectively “Clauss” or Def...

Excerpt: ....3d 593, 604.) Defendant's Request for Judicial Notice is denied as to all but Exhibits 1 and 3, a s of any exhibits. The special Demurrer on grounds that Plaintiff lacks legal capacity to sue is susta i amend. (Code Civ. Proc., § 430.10, subd. (b).) Here, the First Amended Compl a has been damaged and specifically, if or how Plaintiff is entitled to any funds abs c First Amended Complaint alleges Plaintiff and Hutchison are sole beneficiaries t...

Excerpt: ...oss-Defendant Department of Toxic Substances Control (DTSC) to Cross-Complaint of Soco West, Inc. (“Soco”) DTSC's demurrer is SUSTAINED with 20 days' leave to amend in accordance with the terms of this Order. The Court agrees with DTSC that Soco does not allege an actual controversy between Soco and DTSC in the Cross- Complaint. As framed, the only dispute alleged is between Soco and Orange County Water District, which is not named as a cross...

Excerpt: ...92) 6 Cal.App.4th 1548, 1563.) Defendants' request for judicial notice is denied as to nos. 2, 3, and 5, as it is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a, p. 9(l)-33.) A demurrer presents an issue of law regarding ...

Excerpt: ...much accusatory language in the Complaint, the COAs as pled are based on alleged negligence, incompetence and “recklessness,” not on an alleged conspiracy between the Firm and its clients. (See e.g. Complaint ¶ 17-19.) That the claims are subject to §1714.10 is thus not apparent from the Complaint as pled. Firm also argues that COAs 1 and 2 fail because Firm owed no duty to Plaintiffs as a matter of law. Although the issue of duty is ultima...

Excerpt: ...y a separate statement. (See C.R.C. 3.1345(a)(7) [“(a) Separate Statement required. Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: … (7) For issue or evidentiary sanctions.”].) Plaintiff argues that no separate statement was required here since the discovery at issue was already addressed i...

Excerpt: ...o should provide a red-lined version of any revised papers, including the notice to the class. The papers are ambiguous as to whether the attorneys' fees and costs, enhancement, and administrator fees are intended to be paid out of the $500,000 (Settlement Agreement at 21:19-21 and 22:9-11) or in addition to the $500,000 (P's & A's at 2:7-9 and 5:12-16; Notice to Class, Section II, para. 3). Clarification is required. Section 14.2 of the settleme...

Excerpt: ...plemental materials shall be filed on or before April 12, 2019. If a revised settlement and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues: 1. The Court requires all parties to identify any pending actions of which they are aware that potentially overlap with the claims in this action or which might be impacted by the release inclu...

Excerpt: ...agreement. (Counsel disregarded this direction in the supplemental papers for this hearing.) Counsel also should provide a red-lined version of any revised papers, including the notice to the class. The amended settlement agreement defines the class in Section I, para. 4 (on p. 2) to cover employees and independent contractors who worked through March 18, 2017, but the revised notice to class (on p. 1) reflects the end-date as the date of prelimi...

Excerpt: ...ed by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” Baral v. Schnitt (2016) 1 Cal.5th 376, 384. Step 1: Does the alleged misconduct arise from protected activity? Defendant has the burden in step one and must show that the plaintiff's claim arises from protected activity, i.e. that the conduct underlying...

Excerpt: ...r v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving p...

Excerpt: ... more favorable than the statutory o more favorable than the statutory offer, Plaintiff seeks reporter fees to the verdict. On 4/14/18 and 4/17/18, the parties exchanged e-mai split the court reporter fees at trial. This agreement oc c was made. In addition, Plaintiff made the payment of h the completion of the trial. Therefore, the payment of c costs. “It is well established that where, as here, the section Plaintiff's preoffer costs are inclu...

Excerpt: ...ess. (Code Civ. Proc., § 20 2 Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Sanctions, however, are not impos e v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Caryl Richards, Inc. v. S Cal.App.2d 300, 303.) It is only when a party persists in disobeying the Court's O of dismissing the action or entering Default Judgment are justified. (See Deyo v. 771.) Here, the Court's 11/16/2018 order required Defendants/ Cross-Complainants M a provid...

Excerpt: ... that any claim, dispute or other difference between them shall be exclusively resolved pursuant to binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association with arbitration to occur at Irvine, California (except to the extent that Court action is necessary to enforce SeneGence's rights to injunctive relief under Section 27). Louisiana Distributors arbitrate at New Orleans, Louisiana. (Kieff Decl., ...

Excerpt: ...ion to compel arbitration. The Court issued a ruling on that motion on 9/11/18. On 10/10/18, after the ruling was issued, Plaintiffs named SCI as a doe defendant. SCI now brings a motion to compel arbitration of Plaintiff's 1st -9th causes of action against SCI. (The Court notes that before this motion was filed, Plaintiff agreed to submit the 5th-9th causes of action against SCI to arbitration, so the only causes of action at issue are the 1st-4...

Excerpt: ...ce Violence Restraining Order action ([“WVRO action”]; OCSC case no. 30-2018-00973679), and the Certificate of Death, and amendments thereto, of Tim A. Grandcolas, are granted. (Evid. Code, §§ 452, subds. (c), (d); 453.) However, the court does not take judicial notice of the truth of matters stated in the documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC(2007) 152 Cal.App.4th 1106, 1117-1118.) Plaintiff served three subp...

Excerpt: ...to any further claims against the settling tortfeasor.” (Singer Co. v. Superior Court(1986) 179 Cal.App.3d 875, 890.) Because the nonsettling joint tortfeasor has a “property interest” in the settlement, the nonsettling joint tortfeasor “must be afforded notice and an opportunity for a hearing.” (Ibid.) In Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th 177, the court explained, “[t]he due process right to be heard is satisfied ...

Excerpt: ...roper service of a defendant under section 474 may be attacked by a motion to quash. Optical Surplus, Inc. v. Superior Court, (1991) 228 Cal. App. 3d 776, 782- 783. C.C.P. § 474 is only applicable when the plaintiff is “actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant.” McClatchy v. Coblentz, Patch, Duffy & Bass, LLP, (2016) 247 Cal. App. 4th 368, 371 – 372. Here, the evi...

Excerpt: ... the deposition subpoenas issued to Midwest Employer's Casualty Company and GSM Rental Group. The request to Midwest was for “any and all non- privileged records and documents, including but not limited to industrial injury records, benefits entitled to or paid out, medical records and information of health and/or accident claims pertaining to Hector Reyes Rivera, born on August 12, 1980, with SSN: XXX-XX-6606, from 11/1/816 to 2/6/19.” The r...

Excerpt: ...mail notification to all parties of this order. While the motion is unsupported by any evidence, there is no dispute that criminal charges are pending against Vinh C. Phan. Assuming the criminal charges arise from the same events that are the subject of this civil action, the Court is inclined to stay discovery as to Mr. Phan only pending the outcome of the criminal proceeding and allow discovery and other pre-trial procedures to proceed as to ot...

Excerpt: ...ion, or fraud.Allegations that Defendant was a w rented premises that could cause injury to the tenants repair the defect were untimely, inadequate, ineffectiv e are not sufficient. They do not support the conclusion t injure Plaintiff or acted in reckless disregard for her sa f Case Management Conference The Court sets this matter for an estimated 7 day jury 9:00 a.m. and a Mandatory Settlement Conference for both in Department C24. Any party re...

Excerpt: ... circumstances of oppression, fraud, or malice. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation].”].) A motion to strike should be granted where the request for punitive damages are based on conclusory allegations. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042 [issuing w...

Excerpt: ...and thus leaves each cross-defendant unable to discern which allegedly did what to incur liability. But a demurrer for uncertainty should be sustained only where the pleading is so bad that defendant cannot reasonably respond. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 615-616.) Here, the XC asserts that UMT was Balboa's vendor, that UMT and Balboa acted together, and that their combined conduct caused the harm alleged. ...

Excerpt: ...efendant argues that the jury's $49,308.73 verdict in favor of Plaintiff Underwood on her negligence cause of action should be reduced by the amount set forth in Defendant's sealed brief to account for Plaintiffs' settlement with Defendant Spring Valley Post Acute Skilled Nursing Center. Third, Defendant argues that Plaintiffs are not entitled to prejudgment interest on attorneys' fees and costs. For the following reasons, the court sustains Defe...

Excerpt: ... Defendant's arbitration agreement with Plaintiff. The arbitration agreement states that “[t]his Agreement and the arbitration shall be governed by the Federal Arbitration Act.” Id. (¶ 5). The agreement also states: 8. Authority to Resolve Disputes Regarding This Agreement. Except as set forth in this paragraph, or by the written mutual agreement of the parties, the arbitrator, and not any court, shall have exclusive authority to resolve any...

Excerpt: ...mitations had not really run, is little more than an attempt to re-argue the first demurrer. Because the motion was brought more than five months after service of the Notice of Ruling on the demurrer, it is untimely. (Code Civ. Proc., § 1008, subd. (b).) Even if the Court were to consider the motion on the merits, it would be denied. Motion to Compel Deposition The motion of defendant Steven C. Dennis, M.D., to compel the deposition of the Perso...

Excerpt: ...usiness or marijuana dispensary at the Property, or at any other location, fixed or mobile, in the City of Brea;  Selling, providing, or otherwise making marijuana available, or permitting the same, to any person at the Property, or at any other location, fixed or mobile, in the City of Brea;  Operating any business at the Property, or permitting the same, without a valid business license issued by the City of Brea; and  Maintaining a pu...

Excerpt: ...ot repeat that analysis here. As explained in detail in the September 27, 2018 order, the California Uniform Trade Secrets Act (CUTSA) displaced the first, third, fourth and sixth causes of action in Plaintiff's Complaint. Plaintiff's FAC has not changed the allegations material to the analysis in the court's September 27, 2018 order. The gravamen of Plaintiff's FAC remains trade secret misappropriation. Each of Plaintiff's causes of action alleg...

Excerpt: ...Authorities, and the portions of the Declaration of Michelle L. Buxton sought to be sealed by Defendants involve protected information related to mental health treatment and diagnoses of Plaintiffs' and R.C., as well as highly private information related to R.C. and A.C. There is a high probability that if these records are not sealed, the respective Plaintiffs' and non-party witnesses' privacy will be able to be invaded by the general public, ne...

Excerpt: ...d on conditional consent are: 1) that Plaintiff consented to a medical procedure, but only on certain conditions; 2) that Defendant proceeded without this condition having occurred; 3) that Defendant intended to perform the procedure with knowledge that the condition had not occurred; 4) that Plaintiff was harmed; and 5) that Defendant's conduct was a substantial factor in causing Plaintiff's harm. A patient can consent to a medical procedure by ...

Excerpt: ...ne prevailing party status only upon final resolution of the contract claims. (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.) It is not enough to have prevailed on an “interim step” in the case. (DisputeSuite.com, LLC v. Scoreinc.com (2017) 2 Cal.5th 968, 977; Presley of Southern California v. Whelan (1983) 146 Cal.App.3d 959, 961.) Here, the appeal at issue was not a final resolution of the contract claims. Therefore, even though the Motion is un...

Excerpt: .... The court finds that the second cause is duplicative of the first for negligence. Requests for Judicial Notice: The Defendant Planet Home Housing Pool 1, LLC's request that this Court take Judicial Notice of the Plaintiff's First Amended Complaint for personal injury filed January 28, 2019 is GRANTED. The Defendant Planet Home Development, Inc. request that this Court take Judicial Notice of the Plaintiff's First Amended Complaint for personal ...

Excerpt: ...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.” The City did not state the summary adjudication issues verbatim in the separate statement. Additionally, the enumerated issues for summary adjudication join...

Excerpt: ... that the arbitrator “granted leave” to allow the plaintiff to file this motion. But any motion to compel the deposition of a third party must first be heard by the arbitrator. (Berglund v. Arthroscopic & Laser Center of San Diego, L.P. (2008) 44 Cal.4th 528, 533-538; see Uber Technologies, Inc. v. Google LLC (2018) 27 Cal.App.5th 953, 959.) The role of the superior court, on the other hand, is to review the arbitrator's ruling. Nothing in th...

Excerpt: ...conjecture based apparently on a very broad reading of a part of defendant Huerta's apology letter. The same is true of plaintiff counsel's representation that the title of these documents is “code” for something defendant Stater Bros. wishes to hide. There is no evidence to support that claim, either. On the other hand, the submission by the defendant of declarations by the Person Most Knowledgeable in opposition to the discovery motion, ess...

Excerpt: ...or Production/Inspection seeks entry onto the actual land to conduct non- invasive, expert testing of the subject stairs where this accident allegedly occurred, at a time with similar atmospheric conditions. Request for Production/Inspection seeks further responses and production of documents in response to document production requests for witness information and other documents. Authorities: Code of Civil Procedure § 2031.300, (3)(d) provides t...

Excerpt: ...roperty.” When the condition of property lies at the heart of litigation, the party in control of the premises should assume good cause for the request and not obstruct discovery. See, e.g., Manzetti v. Superior Court (1993) 21 Cal.App.4th 373, 379. Here, on 09/10/18, defendants served upon plaintiff a demand to permit an inspection of her yard in order to assess the degree of nuisance caused by defendants' allegedly-overgrown shrubbery. Althou...

Excerpt: ...greement clause in Plaintiff's employment agreement with Defendant. Amezcua-Moll Decl. (01/16/19) ¶¶ 2-4 & Exs. A & B. Paragraph 12.11 of the agreement, entitled “Governing Law; Jurisdiction; and Venue,” states: This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to principles of conflict of law. In the event of a dispute arising out of or relating to this Agreement, the p...

Excerpt: ...subpoena. The letters appear to be letters sent from a medical provider to Defendant Katherine Beisel. See Queen Decl. Ex. A (attachments). Plaintiff's subpoena seeks documents protected by Defendant's right to privacy. Manela v. Superior Ct. (2009) 177 Cal.App.4 th 1139, 1150 (“There is no question that medical records are highly sensitive materials that fall within the scope of the right to privacy.”). Plaintiff has not identified counterva...

Excerpt: ...pon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreaso...

Excerpt: ...ourt 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 opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: . . . [¶] (d) The cour...

Excerpt: ...to each item or category of item by any of the following: [¶] (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. [¶] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, te...

Excerpt: ...] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.220, states, “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. [¶] (c) I...

Excerpt: ...ment, etc. are justified. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796; Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App.4th 566, 604—discovery statutes evince an incremental approach, starting with monetary sanctions and ending with ultimate terminating sanction.) Specifically, it appears that striking Defendants' Answers based on their failure to comply with this Court's December 18, 2018 Discovery order does no...

Excerpt: ... to establish that damages are not adequate or that Defendant is likely to use or disseminate the information/records. This case is six (6) years old. There is no showing that since Defendant obtained the information/records herein she has continued to use it to Plaintiffs' detriment. Plaintiffs fail to point to any RFJN document which establishes the Bankruptcy Court specifically found Defendant is likely to use or disseminate the wrongfully obt...

Excerpt: ... similar paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [¶] (2) The claims, defenses, and other legal co...

Excerpt: ...mited 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 opportunity for hearing, ma...

Excerpt: ...ndered. (2) Plaintiff and Cross-Defendant Crank Bros Deck Co., Inc.'s motion to strike is GRANTED with 10 days leave to amend. The Cross-Complaint fails to adequately allege oppression, fraud and/or malice by the Cross-Defendant. Prevailing party to give notice. ...

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: ..., 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: ...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: ...s for a determination that Plaintiff Masimo Corporation is collaterally estopped from re-litigating 11 specific issues regarding claims for misappropriation of trade secrets and breach of contract against him. This action was filed by on May 10, 2013 against the moving Defendant and Co-Defendants David Hunt and Sotera Wireless. The first amended complaint was filed on December 16, 2013 and contains causes of action for trade secret misappropriati...

Excerpt: ... Inc. v. Woodward-Clyde & Assocs.(1985) 38 Cal.3d 488, 499. Usually, this determination is based on several factors enumerated within the Tech-Bilt decision. However, where the motion is uncontested, such as it is here, the moving party need only submit a barebones motion with a declaration setting forth a brief background of the case. See City of Grand Terrace v. Sup. Ct. (1987) 192 Cal.App.3d 1251, 1261. Here, One Stop submits a declaration fro...

Excerpt: ...arate Statement, Defendant seeks further responses to Request Nos. 3, 7, 8, 9, 10, 13, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 propounded on A&R, and Request Nos. 1, 2, 3, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42 and 43 propounded on Gold Star. Defendant styles this a motion to compel further responses ...

Excerpt: ...on was filed by Orange Holdings on 11/26/18. There were no objections by Board. On 12/26/18, the court issued its final Statement of Decision. Summarizing, the court found the following:  The Administrative Record shows there was substantial evidence to support Board's revision of its Findings of Fact  There was no violation of procedural due process with regard to the new valuation  There was no abuse of discretion in finding that there...

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...

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: ... 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: ...tion of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97. To prove the statutory claim, “a plaintiff must present evidence of ‘all the elements of the common law cause of action' and must also prove ‘a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose...

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: ...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: ...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: ...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: ... 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: ...(Doe 3); and (4) Marriott Vacation Club (Doe 4). (Evidence Code 452(d)(1).) The demurrer by defendant Marriott Resorts Hospitality Corporation (erroneously sued and served as Marriott's Newport Coast Villas, DOE 3; erroneously sued as Marriott Vacation Club, DOE 4; erroneously sued as Marriott Vacation Club International, DOE 2; and erroneously sued as Marriott Vacations Worldwide, DOE 1) is overruled. Moving party argues that plaintiff was not g...

Excerpt: ...ased is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance of a writ of attachment on...

Excerpt: ...venth Cause of Action (Fraud and Deceit); Eighth Cause of Action (Conversion); Ninth Cause of Action (Fraudulent Transfer under Uniform Voidable Transactions Act); Tenth Cause of Action (Common Law Fraudulent Transfer); Eleventh Cause of Action (Money Had and Received); Twelfth Cause of Action (Unjust Enrichment and Restitution); Thirteenth Cause of Action (Willful Misconduct); Fourteenth Cause of Action (Negligence); and Fifteenth Cause of Actio...

Excerpt: ...g. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).�...

Excerpt: ...fined and the parties expressly acknowledged their agreement to be bound by those terms (including the Civil Code section 1542 waiver). (See Exh. A., Paras. 2-6.) Thus, the elements pursuant to Code of Civil Procedure section 664.6 have been met. The Court also finds Plaintiff Lien Pham, as the mother of Plaintiffs Jessica and Melissa Le, had authority to enter into the Stipulation for Settlement pursuant to Probate Code section 3500. The validit...

Excerpt: ...om August 2017 to the present. Defendant objects on the grounds the Irog is overbroad, irrelevant to the subject matter, and not reasonably calculated to lead to the discovery of admissible evidence. Infringes on the potential privacy of 3 rd parties. Plaintiff argues Defendant Kathryn used Terra7, Inc., as a sham corporation to receive assets from DBMR and Associates for the sole purpose of defrauding the Plaintiff out of his judgment. He argues...

Excerpt: ... if it determines that an agreement to arbitrate the controversy exists…” Here, Exhibit 6 filed with the Exhibits to the Motion, is the “Wibbert Engagement Agreement,” which appears to have been executed by Kostas Pallaris and Irene Theocharous, agreeing to retain I&M for Wibbert's representation. The Agreement is authenticated by the Ermer Declaration, para. 3. Wibbert does not challenge the existence of the Wibbert Engagement Agreement,...

Excerpt: ...comply with CRC 3.1324(b). Mr. Sharp's second attempt to comply with that rule is as follows: 3. The amended complaint is necessary to add causes of action and clarify allegations against defendants that were added to the complaint after the court granted me my motion to be identified as the Real Party In Interest. These new causes of action and allegations are in the furtherance of justice. Since becoming the Real Party In Interest, I have uncov...

Excerpt: ...t hourly rates of $475-675 is somewhat excessive. The issues presented in the underlying motion were not novel and/or complicated, and it appears the matter could have been handled by associates billing at much lower rates. Thus, the Court is inclined to reduce the hourly rate to a blended rate of $400/hour, and reduce the number of hours as follows: 30 Hours: Special Motion to Strike 6 Hours: Motion for Attorney Fees Thus, the Motion is granted,...

Excerpt: ...nt's Request for Judicial Notice as to Exhibit 2 pursuant to Evidence Code section 452, subdivision (d), and DENIES the Request for Judicial Notice as to Exhibit 1. Kim v. Westmoore Partners, Inc. (Kim) (2011) 201 Cal.App.4 th 267, 282, states, “When a plaintiff attaches a written agreement to his complaint, and incorporates it by reference into his cause of action, the terms of that written agreement take precedence over any contradictory alle...

Excerpt: ...tiff to allege that defendants were “aware of the toxic nature of their products and owed a duty to disclose the toxic properties of their products to [plaintiff] because [defendants] alone had knowledge of material facts, to wit the toxic properties of their products, which were not available to [plaintiff].”) Specifically, the Complaint alleges that: Ford had a duty to disclose the Cooling System Defect based on its exclusive knowledge of t...

Excerpt: ...rom those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Lazar v. Superior Court (Lazar) (1996) 12 Cal.4 th 631, 645, explains, “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “ ‘the policy of liberal construction of the pleadings . . . will not ordinarily be invok...

Excerpt: ...ally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter 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.” Weddington Productions, Inc. v. Flick (Weddington) (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to pr...

Excerpt: ...stated therein, any contract can be modified. See Civ. Code §1698; see also Vella v. Hudgins, 151 Cal.App.3d 515, 519 (1984)(“It is axiomatic that the parties to an agreement may modify it.”). Plaintiff alleges that it sent an amendment to the agreement, and that defendant accepted that amendment. As to the Second and Third Causes of Action for quantum meruit and unjust enrichment, these are quasi-contractual theories that do not rely on the...

Excerpt: ...ances the equities: (1) whether the moving party is likely to suffer greater injury from a denial of the injunction than the responding party is likely to suffer from its grant and (2) whether there a reasonable probability that the moving party will prevail on the merits. (Teamster Local 856 v. Priceless, LLC (2003) 112 Cal. App. 4 th 1500, 1509.) “A Preliminary Injunction is proper only if there is a substantial basis to suppose that the Defe...

Excerpt: ... law regarding the sufficiency 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 that are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it r...

Excerpt: ...upporting all of the elements of promissory fraud have not been alleged. Counsel for plaintiffs is advised that there is no need to repeat the allegations in the challenged pleading in the opposition verbatim, let alone in single-space text. The first amended complaint is in the Court's filings and the Court has access to it when ruling on the demurrer. 2. Demurrer to Plaintiff Darcy Pascual's 1st Amended Complaint The Court is inclined to sustai...

Excerpt: ...etermined whether to consider it. (See Cal. Rules of Court, rule 3.1300(d).) 2. Reviewing only the moving papers thus far, plaintiffs' respective responses to the 12 document demands are sufficient. Plaintiffs verify they produced all responsive documents. Defendant doesn't believe that. But its incredulity doesn't entitle it to sanctions. It offers no contrary evidence that plaintiffs actually have possession, custody, or control of any withheld...

Excerpt: ...ntic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App. 4th 383, 388. It is not pla...

Excerpt: ... is denied. (Ibid.) To establish a likelihood of prevailing on the merits, the moving party must present evidence demonstrating a probability of prevailing on the merits. This is customarily done by affidavits or declarations, although a verified complaint and other discovery can be considered. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 527; and Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ ...

Excerpt: ...jury trial set for 1/28/19 and scheduled an Order to Show Cause re: Dismissal on Settled Case for 1/28/19. (12/14/2018 Minute Order.) On 1/28/19, no parties appeared at the OSC, so the entire action was dismissed without prejudice. (01/28/2019 Minute Order.) Plaintiffs brought the instant motion on 2/4/19. Although Plaintiffs ask the Court to “reconsider” the 1/28/19 order of dismissal, Plaintiffs did not provide the grounds for this relief i...

Excerpt: ... employer, Christiansen Amusements. Thus, the first deposition notice compelling Mr. Hahn individually to testify designated a 12/12/18 deposition date. Mr. Hahn failed to appear on this date, and the court is inclined to order that he appear within 20 days at a date, time, and place that is mutually agreeable to the parties. However, given the context provided in the opposition, the court is not inclined to award any monetary sanctions against M...

Excerpt: ...ation as to why the new defendants have not been served and why they have not appeared in the case 5 months after they were named, the court will consider vacating the trial date. The court is hesitant to set a new trial date because the “new” defendants should have a say in when the trial will be. ...

Excerpt: ...tion. ...

Excerpt: ...oth willful and malicious. The court notes that there is no binding authority interpreting the language of Section 7952. However, to the extent that malice in this context is to be construed in accordance with Civil Code §3294, plaintiff's allegations fail to make out despicable conduct. ...

Excerpt: ...y the dismissal of Hayden's cross-complaint, filed derivatively on Granite's behalf on January 25, 2018. However, nothing in the moving papers addresses the settlement between Free and Raymond Handling or the dismissal of the cross- complaint. There is no authority or explanation provided re how the Court would have jurisdiction or authority to “approve” a settlement with an entity (Raymond Handling) that is not a party to this action. Likewi...

Excerpt: ...nting Wells Fargo relief from the stay in order to proceed with the foreclosure. [Evid. Code § 452(d).) 2. The claims are not preempted by HOLA. The court finds that the claims alleged are not preempted by the Home Owners' Loan Act because the alleged wrongful conduct occurred after the loan changed hands from the federal savings association of bank to Defendant. HOLA is strictly limited to federal savings institutions, however, and was not inte...