Excerpt: ...ounsel also should provide a red-lined version of any revised papers. The Arbitration Review Hearing set for March 29, 2019 is ordered off calendar. The Settlement Agreement (p. 3) estimates the size of the group of other aggrieved employees at 120 through February 20, 2018. Plaintiff must provide the updated, correct number of other aggrieved employees. The moving papers inconsistently identify the Administrator as CPT Group, Inc. (Settlement Ag...

Excerpt: ...anted. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, 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...

Excerpt: ...ged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” (Code Civ. Proc., § 428.10, subd. (b).) Defendant...

Excerpt: ... is limited to the existence of, filing of, and legal effect of the pleadings, but not as to the truth of any disputed factual matter therein. The Demurrers to the First and Second Causes of Action are each OVERRULED. The 2 ndAXC adequately alleges the legal effect of the agreement between the parties. The Demurrer to the Third Cause of Action For Accounting is SUSTAINED with leave to amend, on the basis that the 2 ndAXC fails to allege facts dem...

Excerpt: ... that the cause of action appears barred by Bus. & Prof. Code § 16600. The sale transaction pled in paragraph 15 of the FAC does not appear to fall within the exception at Bus. & Prof. Code § 16601. It is alleged that Leavitt sold the assets to plaintiff, not Garrett. The facts pled in the FAC are also insufficient to establish that the contractual restriction upon solicitation of plaintiff's clients was necessary to protect trade secrets, and ...

Excerpt: ...tory framework established [in sections 2924 to 2924k] to govern nonjudicial foreclosure sales is intended to be exhaustive.” (Moeller v. Lien (1994) 25 Cal.App.4 th 822, 834; see also I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 285 [“These provisions cover every aspect of exercise of the power of sale contained in a deed of trust”].) “Because of the exhaustive nature of this scheme, California appellate courts have ref...

Excerpt: ... attorney/client relationship (FAC at Paras. 10, 14), but fails to allege facts as to the remaining elements of breach, causation and damages. Rather, these elements are alleged as conclusions only. (FAC at Paras. 15-17.) A complaint is required to state “facts constituting the cause of action, in ordinary and concise language.” (CCP 425.10(a)(1); emphasis added.) “[P]leading conclusions of law does not fulfill this requirement [of CCP 425....

Excerpt: ...e 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. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank,...

Excerpt: ...nation. Thus, where the nonsettling defendant does not oppose a motion for good faith settlement determination on the good faith issue, “a barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) Here, Bobrick has met its burden. The court finds that the settlement is withi...

Excerpt: ...rticipating class members based on 5,524 total class members and 39 opt-outs, but 5,524-39 = 5,485, not 5,487. An explanation is required. Delivery of uncashed checks to the State of California Industrial Relations' Unpaid Wage Fund in the names of the respective payees appears to no longer be viable, since it is the court's understanding that the Department of Industrial Relations is no longer accepting funds from Settlement Administrators. Both...

Excerpt: ...edings, up to and including trial. . ., this policy should be applied only “[w]here no prejudice is shown to the adverse party....” . . . A different result is indicated “[w]here inexcusable delay and probable prejudice to the opposing party” 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...

Excerpt: ...lished opinions. The party asserting the FAA applies, has the evidentiary burden of establishing a relevant nexus to interstate commerce. What the Moad Decl. ¶ 8 does not provide is something to show that the distributorship of Defendant Stewart and Plaintiff, in particular, was involved with interstate commerce rather than SeneGence's business overall. (See Moad Dec. ¶ 8 and compare Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5t...

Excerpt: ...ED. Second Cause of Action: In order to establish a cause of action for willful misconduct, “a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to...

Excerpt: ...rom the two causes of action for intentional and negligent misrepresentation asserted by Cross-Complainant Fusco, which the Court overruled. As to these two causes of action asserted by Ital Pizza, LLC, the Court previously sustained the demurrer to these two causes of action in the third amended cross-complaint because they were pled in extremely vague and confusing terms and conflated the actions of Nardone and Ital Pizza, Inc., such that it wa...

Excerpt: ...nc.'s First Amended Complaint (“FAC”). Defendant Mark Artukovich (“Artukovich”) moves for summary judgment of the same causes of action against him. Neither VAS nor Artukovich moves for summary adjudication of any issues or claims. For the following reasons, VAS's motion is denied and Artukovich's motion is denied. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to...

Excerpt: ...ify the specific causes of action in the complaint for which adjudication is sought. (CRC 3.1350(b), (c)(1), (d)(1); see also Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498.) The separate statement serves a due process function. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251.) For due process reasons, when a motion seeks summary judgment only, a trial court cannot summarily adjudicate individual causes of acti...

Excerpt: ...on, arguing that it will not promote judicial economy or the interests of justice. Plaintiff contends a bifurcated trial in front of one jury will require the same amount of preparation and that a bifurcated trial in front of two juries would be unworkable. Moreover, Plaintiff claims, any potential prejudice or sympathy from trying both liability and damages in the same trial could be mitigated by appropriate jury instructions. “The court may, ...

Excerpt: ... to Pfieffer Fitzgibbon & Ziontz; Apex Law; Atkinson, Andelson, Loya, Rudd & Roma; Buchalter, Nemer, Fields & Younger; and Freeman Freeman & Smiley are void. Where employee or consumer records are subpoenaed from a third party, notice must be served on the employee/consumer 5 days before the subpoena is served on the custodian of records and at least 10 days before the production date. Code Civ. Proc. § 1985.6(b)(3). Proof of service on the “c...

Excerpt: ... CRC 3.1346, a nonparty deponent is entitled to personal service of written notice and all moving papers supporting “a motion to compel an answer to a deposition question or to compel production of a document” unless the nonparty deponent “agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” The motion is DENIED without prejudice. Motion #2 Defendant moves ...

Excerpt: ... compelling a further response to a request for production must both: (1) set forth specific facts showing good cause justifying the discovery sought by the demand; and (2) be accompanied by a meet and confer declaration. Code Civ. Proc. § 2031.310(b). Once the moving party makes this showing, the burden shifts to the responding party to justify the answer or objection. Plaintiff seeks supplemental answers to requests 18-21. Request 18 Request 1...

Excerpt: ...e and irrelevant information. On a motion to compel further responses, the moving party must be able to “set forth specific facts showing good cause justifying the discovery sought by the demand.” Code Civ. Proc. §2031.310(b)(1). Defendants have failed to set forth any specific facts which would show good cause for the production of Plaintiff's Facebook account data, whether or not that material is currently in the hands of her counsel. Even...

Excerpt: ... individuals. Defendants oppose Plaintiff's motion. The individuals have not filed oppositions. For the following reasons, Plaintiff's motion is granted. Plaintiff served subpoenas on the four individuals seeking production of a copy of each person's settlement agreement with Defendants and testimony about “[t]he claims, damages, and terms of [each] settlement.” See Liu Decl. Exs. I-L. In response, the individuals objected to the subpoenas on...

Excerpt: ...the parties outside the presence of the court or orally 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.” In ruling on a motion to enter judgment the “trial court acts as a trier of fa...

Excerpt: ...d several days of work to attend doctor's appointments related to the subject accident. Opp. at 5:19-26; id. at 7:26- 8:2. Defendant correctly states that those topics are relevant to the case. Defendant's statement also, however, demonstrates that the subpoena is overbroad. The subpoena is limited as follows: All documents and other records for the period August 25, 2016 to April 30, 2018 relating to any claims by Betty Duenas (DOB 06/25/1981) o...

Excerpt: ...egin the action in Riverside County when considering the mechanic's lien claim involved there. However, the Greenfield defendant's contract-claims were probably compulsory cross-claims for the present case in Orange Country. (See CCP §428.10(a). CCP § 426.10(c). Align Technology, Inc. v. Bao Tran (2009) 179 Cal.App.4th 949, 967.) Even local claims can be transferred to another county, when the circumstances warrant this. (See CCP § 392; 61 Cal...

Excerpt: ...ruth 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 complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reaso...

Excerpt: ...Moving Party to give notice. Plaintiffs submit evidence to show the billing rates of their attorneys range from $270-$640. The blended rate is $428.73. They state they seek recovery of 351.2 hours of attorney time. (See Motion 7:1-14.) Defendant acknowledges the incurred time and the quality of work of Plaintiffs' attorneys, but argues the rates are excessive. Nonetheless, these billing rates are reasonable given the experience of Plaintiffs' att...

Excerpt: ... and Sixth Issues is DENIED. Cross-Complainants' Motion for Summary Adjudication of the Second, Third, Fifth, Seven and Eighth Issues is GRANTED. Cross-Complaints' Evidentiary Objections: 1. Sustained; improper use of interrogatory responses. (See Code Civ. Proc., § 2030.420 – At the trial or any other hearing in the action, so far as admissible under the rules of evidence, the propounding party or any party other than the responding party may...

Excerpt: ... Motion: 10:19-20:20.) Initially, as cited by Defendant, case law indicates Plaintiff does not have standing to bring a claim based upon the duty to defend owed to Poss. (See Clark v. California Ins. Guarantee Assn. (2011) 200 Cal.App.4 th 391, 397-398: “A third party judgment creditor is merely an incidental beneficiary of obligations…that arise under the duty to defend. Unless the third party obtains an assignment by the insured of its righ...

Excerpt: ...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 and nonissuance of t...

Excerpt: ...ing date. Code of Civil Procedure section 2032.310, states, in relevant part, “(a) If any person desires to obtain discovery . . . by a mental 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, aw well as the identity and the specialty, if any, of the person or persons who will perform the examination...

Excerpt: ...ed to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery.” Code of Civil Procedure section 2023.030, subdivision (c), 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 ...

Excerpt: ...4 th 242, 250.) California Constitution, article I, § 28, states, in part, “(a) The People of the State of California find and declare all of the following: . . . (3) The rights of victims pervade the criminal justice system. These rights include personally held and enforceable rights described in paragraphs (1) through (17) of subdivision (b). . . . (b) In order to preserve and protect a victim's rights to justice and due process, a victim sh...

Excerpt: ...itation.]” Doe v. City of Los Angeles (2007) 42 Cal.4 th 531, 550, explains, “It would be inconsistent with this purpose, or with the mandate to broadly construe these provisions, to apply more stringent rules of pleading than those that ordinarily apply. (See § 425.10, subd. (a) [a complaint is sufficient if it contains ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.'].) Thus, the complaint ...

Excerpt: ...ly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Williams v. Beechnut Nutrition Corporation (1986) 185 Cal.App.3d 135, 139, footnote 2, states, in part, “However, under our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for unce...

Excerpt: ...oth procedurally and substantively to govern the arbitration per the agreement of the parties. The FAA does not include a provision comparable to CCP § 1281.2(c) and therefore requires this court to enforce the written arbitration agreements even if there is pending litigation involving a third party that may result in conflicting rulings. Under the FAA, this court's task on a motion to compel arbitration is limited to answering two questions: (...

Excerpt: ...t in Santa Ana] with Demurrer Ex. B ¶ 3 [2015 auto accident in Laguna Niguel involving different people].) The FAC is hopelessly untimely. It was filed on 9/11/18 and alleges personal injuries suffered on 12/31/15. It is barred on its face by the 2-year limitations period. (See Code Civ. Proc., § 335.1; see also Mitchell v. California Department of Public Health(2016) 1 Cal.App.5th 1000, 1007.) Plaintiff has not shown any reasonable possibility...

Excerpt: ...the borrower's financial situation and explore options for the borrower to avoid foreclosure,” or 30 days after satisfying due diligence requirements to attempt to contact the borrower. Civil Code § 2923.5(a)(1)(A), (a)(2), (g). Civil Code § 2923.5(e) also requires at least one written communication: (e)(1) A mortgage servicer shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone numbe...

Excerpt: ...t under CCP Section 2015.5. The Court continued the hearing on the motion, in part because it appeared the opposition and reply briefs submitted by the parties had been delayed in processing in the clerk's office and therefore had not been considered by the Court at the time of the 2/25/2019 hearing. The Court has now considered the moving papers, the opposition and reply papers. On the basis of the record before it, the Motion/Application is den...

Excerpt: ...e is shown to the adverse party....” . . . A different result is indicated “[w]here inexcusable delay and probable prejudice to the opposing party” 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...

Excerpt: ...ss was conducted by co-defendant Alisson Rosales, and operated out of a gym owned by co-defendant OC All Stars. The class started at 5:30am, and was well-attended. Following a quick warm-up, participants engaged in an exercise called the farmer's carry in which they walked a straight line, arms by their side, holding 20-lb dumbbells. Because participants had to stagger and space themselves, it was common for participants to actually walk right pa...

Excerpt: ... It alleges that defendant Robert James Medina contends that he is the owner of the mobile home based on a purported bill of sale that he obtained by defrauding Blick. (Complaint, ¶¶ 11 and 13.) It alleges that, in 6-16, plaintiff found out about the purported bill of sale to Medina and that he had registered his alleged ownership of the mobile home and paid the 2016 registration fee. (Complaint, ¶ 14.) The verified complaint seeks the followi...

Excerpt: ...�� Nos. 37 and 61 – were withdrawn in the reply. The Court addresses the remaining 13 requests below. As an initial matter, a motion to compel further responses to requests for production “shall be accompanied by a meet and confer declaration under Section 2016.040.” Code Civ. Proc., § 2031.310(b)(1). CCP Section 2016.040 requires the meet and confer declaration in support of a motion to “state facts showing a reasonable and good faith a...

Excerpt: ...plemental responses. (Moore Decl. ¶ 6; Pick Decl. ¶ 3.) In the opposition, Ms. Gjested states that she did not learn of any issues regarding these supplemental responses until the motion came in. (Gjested Decl. ¶ 7.) However, she does not claim that no discussions occurred with any of her colleagues, and the opposition otherwise demonstrates that there is indeed an impasse as to the responses at issue. The Court thus finds that the meet and co...

Excerpt: ...s. CCP §§ 2030.300(c) [Interrogatories], 2031.310(c) [Requests for Production] and 2033.290(c) [Requests for Admission.] The demanding party waives the right to compel any further responses if the Motion is not served within 45 days of a verified response. Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745. Application: It is undisputed that the Plaintiffs served their discovery requests on September 20, 2018. It is also undisputed that the Def...

Excerpt: ...500 to Susan Vanderpool, payable in monthly installments of $10,000, beginning on December 1st of 2018 and continuing until one final monthly payment is made in the amount of $12,500 to comprise the total $62,500 payment”; “[o]nce those payments have been made, the parties stipulate that judgment quieting title to the subject property in this action, located at 115 Majorca Place, Placentia, will be entered in favor of Carol A. Smith with an e...

Excerpt: ...AC asserts claims for money. Even the 4th and 5th causes of action for specific performance and constructive trust would not change defendant's legal title or right to possession. Defendant's request for judicial notice is granted. Demurrer The matter is abated. “[F]amily law cases should not be allowed to spill over into civil law.” (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25.) Defendant has shown the family law department holds “...

Excerpt: ...is adequate need shown for the relief sought, in light of prior discovery delays, including delays in document productions, and Plaintiffs appear to have acted with reasonable diligence. (Weisberg Decl. Exs. 12, 24 -28.) No undue prejudice to the defense is shown, and Plaintiffs have not unduly delayed in seeking this relief. (Weisberg Decl. Ex. 28; Weisberg Reply Decl., ¶¶ 2-6.) The discovery cut-off will thus be continued to correspond to the...

Excerpt: ...and her child's social security and bank account numbers is manifest. Plaintiff has proposed a limited redaction to protect this information. The Court thus finds that: (i) an overriding privacy interest exists that overcomes the right of public access to the information; (ii) the overriding interest supports sealing the records; (iii) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (i...

Excerpt: ...vailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032; Charton v. Harkey (4/3 2016) 247 Cal. App. 4 th 730, 737. A “prevailing party” includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief and a defendant as against those plaintiffs who do not recover any relief against that de...

Excerpt: ...he action.” However, as the earlier denial was without prejudice, this Court considers it may hear this subsequent petition. Petitioners' first request for consolidation was denied because Stevens v. Suncrest, the case it sought to coordinate, had settled and the parties were seeking preliminary approval of that settlement. Now, two years later, not only has the settlement been preliminarily approved but it has also been finally approved and ju...

Excerpt: ...djudication.” (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208, fn. 25; see Cal. Rules of Ct., Rule 2.550(c) [“Unless confidentiality is required by law, court records are presumed to be open.”].) Although that right is not absolute, the moving party has the burden to meet the requirements set forth in California Rules of Court 2.550- 2.551. To grant a motion to seal, the court must expressly find that: (1) an ...

Excerpt: ...int in the Florida action does not appear on the face of the first amended complaint, and was the not the subject of a successful request for judicial notice. Defendant's request for judicial notice: Granted as to Items 6, 7, 8, and 15, and denied as to the remaining Items. The vast majority of the pleadings from the Florida courts bear a notation “Unofficial Document” which creates a substantial doubt as to their trustworthiness. None of the...

Excerpt: ...every person to enjoy the use of public streets, buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law.” In re Joseph F. (2000) 85 Cal. App. 4th 975, 986. However, “[t]his is not to say . . . that persons have unfettered free access to all public places. Indeed, where the nature of a public place or other circumstance so justifies, citizens regularly are subjected to intrusions not approp...

Excerpt: ...umas (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.”].) Plaintiff thus appears to have abandoned his claims here. The demurrer also has merit. A demurrer for uncertainty lies only where the complaint is so poorly pled that a defendan...

Excerpt: ...aration requesting permission to dismiss the PAGA claims without prejudice and to continue the hearing in this case scheduled for March 15. The March 6 Declaration references class claims even though this case no longer includes class claims and refers to Defendant as a small pita making company, not a clothing business. The Declaration was served on defense counsel in this action and contains the correct case information on the pleading for this...

Excerpt: ...process to try to informally resolve the matter, the moving party has, at times, thwarted these efforts by refusing to go beyond writing letters and discuss the matters personally. Clement v. Alegre (2009) 177 Cal. App. 4 th 1277, 1294. The suggestion by the moving party that nothing more was required was not well-taken. (See Townsend v. Superior Court (1998) 61 Cal.App.4 th 1431, 1438-39; see Moving Exhibit E; Civ. Pro. Before Trial § 8:1163, 8...

Excerpt: ... motion for JNOV and motion for new trial. (See Code Civ. Proc., § 659a.) Plaintiff was able to timely file substantive replies in response to the oppositions. A court must grant a motion for JNOV when the facts show that either a defendant's motion for nonsuit under Code of Civil Procedure section 581c or a motion for directed verdict under Code of Civil Procedure section 630 should have been granted. (Code Civ. Proc., § 629.) The purpose of a...

Excerpt: ...sh subpoenas. No opposition. Motions granted. There is no evidence defendant complied with CCP § 1985.3(b)(2) and (3). The statute requires that service on the consumer (or counsel of record) be made "[n]ot less than 10 days prior to the date for production specified in the subpoena duces tecum," and "[a]t least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail [...

Excerpt: ...ponse is internally inconsistent, in that defendant avers that he lacks sufficient knowledge to formulate a response as to contributing factors, but also includes an unqualified admission as a supplemental response. If defendant professes lack of knowledge as grounds for an inability to deny, then his response needs to comply with CCP 2033.220(c). If his response consists of an unqualified admission, this is not necessary. Defendant's supplementa...

Excerpt: ...debtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.' ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [internal citations omitted]; CACI no. 372.) Here, the Complaint alleges that Defendant Hoa Canh Nguyen became indebted to Plaintiff in the amount of $27,371.93 based on a written open book account where Defendant used a credit card and breached the agreement to make periodi...

Excerpt: ...ith Defendant. Defendant responded with boilerplate objections. On July 29, 2018, after a meet and confer process and two informal discovery conferences, the Court ordered Defendant to provide “contact information for homecare caregivers through a Belaire-Westnotice process.” The order specified that it was without prejudice to Plaintiff's renewal of her motion to compel contact information for employees other than homecare caregivers. Defend...

Excerpt: ...., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. ...

Excerpt: ...tion of causes of action as against each of the four causes of action alleged by Plaintiff Jannette Campos in the Fifth Amended Complaint: (1) Intentional Misrepresentation; (2) Negligent Misrepresentation; (3) Unfair Competition (§ 17200); and (4) Wrongful Foreclosure. The motion is unopposed. A defendant moving for summary judgment may prevail on the motion by affirmatively negating at least one of plaintiff's essential elements. CCP §437c; A...

Excerpt: ...lishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had...

Excerpt: ... 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 judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 2...

Excerpt: ...formation at the first hearing. Baldwin v. Home Sav. of Am. (1997) 59 Cal.App.4th 1192, 1200. On 12/13/18, the Court denied Plaintiff's motion for judgment on the pleadings on alternative grounds. The first ground for denial was that Defendant had filed a supplemental verification signed by Defendant's officer, which rendered Plaintiff's challenge to Defendant's Answer moot. The alternative ground for denial was that Plaintiff failed to engage in...

Excerpt: ... policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047 [quoting Code Civ. Proc., § 473(a)(1)].) “[A]s a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown.” (Central Concrete Supply Co., Inc. v. Bursak (2010) 182 Cal.App.4th 1092, 1102.) “Although courts are bound to ...

Excerpt: ...aint in this matter filed by Plaintiff A&R Wholesale Distributors, Inc., in essence, alleges that Carson breached the parties' lease agreement and attempted conversion of Plaintiff's property when it refused to allow Plaintiff to remove a refrigeration unit from the leased premises upon vacation. Gold Star is not a Plaintiff in the underlying complaint. The Cross- Complaint is against Gold Star only, and alleges that Gold Star acquired all of the...

Excerpt: ...d effect as a general demurrer, i.e., the trial court is asked to determine whether the complaint raises an issue that can be resolved as a matter of law. Smiley v. Citibank (1995) 11 Cal.4 th 138, 146; Westly v. Board of Admin. (2003) 105 Cal.App.4 th 1095, 1114. Like a demurrer, a motion for judgment on the pleadings admits, for purposes of the motion, the truth of all material facts that have been pleaded. Consolidated Fire Protection Dist. v....

Excerpt: ...ard the fees in question. Plaintiff's request for fees mirrors the court's cost order in that Plaintiff seeks all its fees for the deposition in which the court ordered Defendant to cover all costs and Plaintiff seeks half of its fees for the deposition for which the court ordered Defendant to cover half the costs. The court finds Plaintiff's counsel's hourly rate of $610 is reasonable. The court also finds that the time spent on depositions (pre...

Excerpt: ...Admissions was for good reason. The Requests were served shortly after the Answer was served. A demand letter had been served on defendants' insurer after the action was served, but before the Requests were served. The demand letter, and documents later produced to defendants' counsel, showed that at least one preexisting condition, specifically to the left shoulder. The records showed only post- accident medical history. There were no records wi...

Excerpt: ...ank, N.A. As Successor to Bank of American N.A. as Successor by merger to Lasalle Bank, N.A. as Trustee for WAMU Pass-through Certificates Series 2006-AR18 Trust's Demurrer to Plaintiff Alan R. Sporn's Complaint in its entirety with one opportunity to amend. Plaintiff shall have 20 days leave to amend. Defendants' MTS is moot. RJN The court grants Defendants' unopposed RJN. As to Exhibits T through BB, the court can take judicial notice of the re...

Excerpt: ...f that she had three cavities that needed immediate treatment, including fillings on teeth numbers 29 and 30. (Complaint, ¶ 15.) Plaintiff alleges that she did not agree to this treatment and took her x-rays to a different dentist who examined her and told her that she did not need any treatment. (Complaint, ¶ 16.) Plaintiff alleges that Defendants' conduct amounted to a violation of subdivision (a)(15) of Civ. Code § 1770 and that she suffere...

Excerpt: ...ode §51.9. Pursuant thereto, plaintiff may sue any person with whom she is in a “business, service or professional relationship” if the latter “has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexu a nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe” and “there is an inability by...

Excerpt: ...also contend that the complaint does not contain the essential allegations to support an alter ego theory. Defendants' third argument, that the complaint does not sufficiently state damages, has been withdrawn, according to the reply. With regard to the first argument, Constructive discharge occurs when an employer's conduct effectively forces an employee to resign. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244. Although the employee...

Excerpt: ...ues that decedent was its employee, and was on Defendant's construction site, acting in the course and scope of his employment on the date that he was attacked by the bees. Defendant asks that the Court take judicial notice of records from the Workers' Compensation Appeals Board (“WCAB”), including an Order Approving Compromise and Release, signed by Workers' Compensation Administration Law Judge Robert Mays on 08/17/17. (RJN, Ex. 1.) This or...

Excerpt: ... plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749. The Court employs a more probable than not standard. Robbins v. Superior Court (1985) 38 Cal.3d 199, 206. Further “[t]he trial court's determination must be guided by a “mix” of the potential-mer...

Excerpt: ...hey exhausted their administrative remedies as to Foster individually. (Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116-18.) Plaintiffs are given leave to amend to the extent they can show they identified Foster individually in their administrative complaint. As to BFCI, its demurrer to the 15 and 16th causes of action is sustained with leave to amend. The Complaint is ambiguous as to whether this claim is being bro...

Excerpt: ...owever, the court's authority may be placed into the hands of the arbitrator by language in the arbitration agreement that “clearly and unmistakably” empowers the arbitrator to decide what matters are arbitrible. Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84 There is no “clear and unmistakable” language conferring the decision to determine enforceability to the arbitrator. That said, this is the point at which some of the ar...

Excerpt: ...e doctor is an independent contractor as to hospital, it is not liable for his negligence. (Mayers v. Litow (1957) 154 Cal.App.2d 413, 418; Konnoff v. Fraser (1944) 62 Cal.App.2d 788, 791.) Defendant has met its burden to show no vicarious liability for the acts of Co-Defendant Maginot, M.D. Plaintiff files a Notice of Non-Opposition and does not present any disputed material facts. Further, Defendant presents testimony from Brendan J. Carroll M....

Excerpt: ...nd all employment records ... including ... employer's personnel file, claim file ... employment file ... a printout of all electronic mail between [Plaintiff] ... and the Employer ... all written evaluations and documents of employment, employment application or contract for services... all employment documents relating to services performed ... pre-employment exam records ... " and " ... customer complaint reports, reprimands, records of discip...

Excerpt: ...has taken judicial notice of the Plaintiff's sec. 998 offer which was filed in her concurrent 1/18/19 motion to augment her costs. [See ROA 782, Boskovich Decl. and exhibits; Evid. Code § 452(d), (h).] Plaintiff offered to compromise for $250,000 in October of 2014, the offer was not accepted, and the Defendant did not fare better at trial. (See Judgment f. 8/12/16 and Order of 1/17/19.) Therefore, augmenting the costs is properly invoked. Exper...

Excerpt: ...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 (2007) 158 Cal.App.4 th 11, 29; Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4 th765, 773- 74. The party challenging costs does not meet th...

Excerpt: ...e comparative fault of the association or its managing agents may be raised by way of defense but shall not be the basis for a cross- action or separate action against the association or its managing agents for contribution or implied indemnity, where the only damage was sustained by the association or its members. It is the intent of the Legislature in enacting this subdivision to require that comparative fault be pleaded as an affirmative defen...

Excerpt: ...', but it must be ‘definite and concrete, touching the legal relations of the parties having adverse legal interests.'” ((Conroy v. Civil Service Commission of City and County of San Francisco (1946) 75 Cal.App.2d 450, 456.) “‘The “actual controversy” language in ... section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties.' [Citation.] It does not embrace controversies that are ‘...

Excerpt: ...sponding party permits.” “[P]arties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783. “A party may not deliberately misconstrue a question for the purpose of supplying an evasive answer.” Id. Special Interrogatory No. 1 asks Defendant to state how she believes the “INCIDENT” occurred. The interrogatory d...

Excerpt: ...essing and pricing methodology of claims for behavioral health services. (Calonge Decl., ¶¶ 4, 6; see Courtesy Temporary Service, Inc. v. Camacho (1990) 222 Cal.App.3d 1278, 1288.) Further, a substantial probability exists that Defendants will be prejudiced if the information is not redacted from the public record. They will be forced to provide economically valuable materials to competitors, to their own disadvantage. (Calonge, ¶¶ 4, 5; see ...

Excerpt: ...rd Postrel, Icahn Associated Holdings, LLC and CSGP, Inc. The motion to quash is denied as to the subpoenas served upon Yucaipa Companies, LLC, Maria Sefarian, Jeffrey Gordon, and TGS Management Co., LLC but the subpoenas are modified and limited to include documents going only as far back as January 2014. The Defendants' request sanctions in the amount of $4,937.50 is denied. Out of State Subpoenas: A California subpoena is only valid within Cal...

Excerpt: ...ce in addition to a written objection, where it is contended that the deposition notice fails to comply with the statutory requirements. See Code Civ. Proc. §2025.410(c). Such a motion must be accompanied by a meet and confer declaration. Ibid. Rule 3.1010(a) provides that a party may take a deposition if it “makes all arrangements for any other party to participate in the deposition in an equivalent manner.” “An oral deposition shall be s...

Excerpt: ...rvice. The Court hereby considers the merits of Plaintiff's motions. The Court reminds the parties that litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984- 985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247. A self-represented litigant is not entitled to any greater consideration than other liti...

Excerpt: ...ode Civ. Proc. § 664.6 procedure empowers the judge hearing the motion to determine disputed factual issues that have arisen regarding the settlement agreement. Fiore v. Alvord (1985) 182 Cal. App. 3d 561, 566. The court may interpret the terms of the contract to determine what the parties agreed to. Fiore v. Alvord (1985) 182 Cal. App. 3d 561, 566; Skulnick v. Roberts Express, Inc. (1992) 2 Cal. App. 4th 884, 889. The terms of a contract are de...

Excerpt: ...substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” Subdivision (a)(1) of Section 418.10 reads: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: . . . (2...

Excerpt: ...the case ending in -0447 presents only equitable issues, for which no jury is permitted, and the case ending in -2848 presents legal issues, for which Plaintiff refuses to waive a jury trial. (Opp'n at 1.) Plaintiff, on the other hand, contends that this action, the case ending in -0447, “can and will be heard and decided by a jury.” (Reply at 2-3, citing Thomson v. Thomson (1936) 7 Cal.2d 671, 681.) Although the court is not making a determi...

Excerpt: ...state facts that will support class certification. As Defendants note, Plaintiffs have previously stated that they are aware of at least one other person who has similar claims as Plaintiffs. The identity of this third-party is responsive to all four interrogatories and he or she should be disclosed. As should any other person that Plaintiffs are currently aware of, who has similar claims as Plaintiffs. Nos. 23-30 to Pano: The information request...

Excerpt: ...1:4-6 [“restitution of all monies due Plaintiff including back pay, front pay, lost employment benefits and other compensation…”]. Defendant CALTRANS has also raised the affirmative defense of failure to mitigate. (See Answer, RFJN, Exh. 2.) Given the foregoing, the Motion is DENIED as to the following as the Court finds they are relevant to the issues in this case:  Wages, and earnings paid, commissions paid;  1099 statements, and ot...

Excerpt: ...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.) The court GRANTS Defendants' request for judicial notice of Exhibits 10, and 12-15 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sos...

Excerpt: ...ed. [¶] (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, provides, “(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. [...

Excerpt: ...judicial notice pursuant to Evidence Code section 452, subdivision (d). The court limits this notice to the documents themselves. The court does take judicial notice of Defendant's interpretation of these documents. Under Evidence Code section 452, subdivision (d), the court GRANTS judicial notice of the following Minute Orders, within this action: (1) October 4, 2018; (2) July 13, 2018; (3) September 14, 2017; (4) June 15, 2017; and (5) February...

Excerpt: ...duced therefrom. (See Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) Plaintiff's Request for Judicial Notice in Support of Opposition to Motion for Summary Judgment is GRANTED as to Exhibits A, B, and C, and DENIED as to Exhibit D. (Evid. Code, § 452(h).) Although the court takes judicial notice of the existence of documents attached as Exhibit A, B, and C, and the clear legal effects of the same, the court is not required to ...