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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...LED. Defendants' sole argument as to this cause of action is that it is preempted by the California Uniform Trade Secrets Act (“CUTSA”). However, the Complaint alleges facts other than trade secret misappropriation that would support a cause of action for breach of fiduciary duty. (Compl. ¶¶ 22, 26, 27, 30.) As to the 3 rd COA (Breach of Confidence), the Demurrer is SUSTAINED with leave to amend. As alleged, this cause of action is preempte...

Excerpt: ... entire litigation. Thus, interim attorney fees for an appeal before final disposition are not recoverable. (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 928; Presley of Southern Calif. v. Whelan(1983) 146 Cal.App.3d 959, 961-962.) Similarly, Civil Code section 5975(c) provides that the “prevailing party” shall be awarded reasonable attorney fees. Thus, it appears interim attorney fees for an appeal are also not recoverable under sect...

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 ...

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: ...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: ...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: ...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: ...ease”) between Plaintiff and Esports Arena Seattle, LLC, contains a choice of law clause requires venue for any action on the Lease to be in King County, Washington (Complaint, Ex. B, p. 31), the present matter is not based upon the Lease, but rather it is based upon the Personal Guaranty of Defendant (“Guaranty”). The Guaranty is a separate contract between Plaintiff and Defendant, and contains a separate choice of law clause that pertains...

Excerpt: ...of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within this court's jurisdiction and (2) prevent out-of-state residents from filing frivolous lawsuits against California residents. Alshafie v. Lallande (2009) 171 Cal.App.4 th 421, 428; Yao v. Superior Court (2002) 104 Cal.App.4 th 327, 329. The motion must be supported with evidence demonstrating “a reasonable possibilit...

Excerpt: ...v. Frank (1990) 217 Cal.App.3d 94, 98- 99.) The delay appears to have been caused by unsuccessful settlement efforts, not by hiding the ball. While an earlier motion may have been more convenient, the court find no bad faith. Even if some or all of the proposed cross-claims were permissive, trying them with the complaint serves the interests of justice. (See Code Civ. Proc., § 428.50, subd. (c).) The parties should be prepared to discuss a conti...

Excerpt: ...ster Association's Special Motion to Strike Pursuant to Code of Civil Procedure Section 425.16 is GRANTED. Defendant has met its initial burden of making a prima facie showing that the 1 st, 2 nd, and 3 rd causes of action arise from “an act in furtherance of a person's right of petition or free speech under the United States or California Constitutions in connection with a public issue.” (See CCP § 425.15(e).) The causes of action arise fro...

Excerpt: ...ation). Responding Party Plaintiff Ken Stuart. Ruling: Defendants' demurrer is sustained in its entirety. Plaintiff shall have 15 days leave to amend. Defendants' request for judicial notice is granted. Res Judicata/Claim Preclusion “A clear and predictable res judicata doctrine promotes judicial economy. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be...

Excerpt: ...t first addresses the arguments that apply to multiple causes of action and then addresses the demurrers to individual causes of action. Defendants demur to all causes of action on the ground Plaintiff Economy Auto Body and Auto Sales, Inc.'s corporate status is suspended. This demurrer is overruled. The corporation is now in good standing. (02/22/2019 RJN of Auto Body's Certificate of Revivor.) Defendants also demur on the ground that Plaintiffs...

Excerpt: ... granted. The Case Management Conference is continued to May 6 2019 at 9:00 a.m. First Cause of Action for Violation of Comm. Code §3301 and B&P Code § 17200 B&P § 17200 et seq. (“UCL”) prohibits unfair competition, including unlawful, unfair or fraudulent business acts. Cel-Tech Comm., Inc. v. Los Angeles Cellular Tele. Co. (1999) 20 Cal. 4 th 163, 180. A UCL action is equitable in nature and damages cannot be recovered. Id. at 179-80. It...

Excerpt: ...thin 15 days. The three causes of action that are at issue on the Demurrer are Shin's claims for (1) intentional misrepresentation, (2) concealment, and (3) promise without intent to perform, i.e., promissory fraud. Cross- Defendants demur to all three causes of action on the ground that the fail to state a claim and are, in any event, uncertain. The remaining claim in the SAXC, for breach of contract, is not the subject of the demurrer. All thre...

Excerpt: ...nd Ins. Companies 91988) 46 Cal. 3d 287, 305. Only parties to an insurance contract and those entitled to benefits under the policy, such as an additional insured or express beneficiary, have standing to sue for breach of the contract's express or implied terms. Thus, a third-party claimant has no standing to sue for breach of the implied covenant of good faith and fair dealing without first obtaining an assignment of the insured's rights. Murphy...

Excerpt: ... (4) The reasons why the request for amendment was not made earlier.” Cal. Rules of Ct., Rule 3.1324. The motion must state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are lo...

Excerpt: ...But the FAC fails to state facts sufficient to constitute this claim. “‘[C]ourts have not extended the Molien direct-victim cause of action to emotional distress which is derived solely from a reaction to another's injury.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 131.) That is exactly what the FAC alleges. It asserts plaintiff Angelique Lynch “suffer[ed] severe emotional distress upon seeing the body of [her h...

Excerpt: ...order,” because Plaintiff did not provide any “new or different facts, circumstances or law,” and because the Court loses jurisdiction to rule on a pending motion for reconsideration after entry of judgment. (APRI Ins. Co. v. Sup.Ct. (Schatteman) (1999) 76 Cal.App.4th 176, 181.) Insofar as the Motion is one for relief under Code Civ. Proc. § 473(b), Plaintiff correctly points out that a Notice of Errata was filed on December 6, 2018, which...

Excerpt: ...ust account. For the reasons set forth below, the Motion is denied. The Court grants the request for Judicial Notice of Exhibits 1, 4, 5, 6, 7, 8, 9, and 10 under Evidence Code Section 452(d). The Court cannot accept as true the contents of pleadings or exhibits just because they are part of a court record or file; they constitute inadmissible hearsay in this action. Day v. Sharp (1975) 50 Cal.App.3d 904, 914. But the legal effect of orders in an...

Excerpt: ....) The motion as to this cause of action is DENIED. Defendant argues that the cause of action fails, because Plaintiff did not perform substantially similar work as other directors. The test is “substantially similar work” “when viewed as a composite of skill, effort, and responsibility” (Lab Code §1197.5(a)). This description suggests a pretty factual inquiry to begin with. The Motion itself does not present enough information about the...

Excerpt: ...ault, who, for understandable reasons, could not address the case until recently. In light of the public policy in favor of hearing matters on their merits, the court errs on the side of granting the motion. ...

Excerpt: ..., the burden of proof is on the plaintiff to show that service was proper. Bolkiah v. Superior Court, 74 Cal. App. 4th 984, 991 (1999) (“once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court's jurisdiction over the defendant.”) Here, Defendant has filed a declaration in which he attests that contrary to the Proof of Service filed by Plainti...

Excerpt: ...n for failure to dismiss for failure to comply with Local Rule 317, Plaintiff dismissed the Complaint and Cross- Complainant dismissed the Cross- Complaint without prejudice. Subsequently, Plaintiff dismissed the First Amended Complaint withoutprejudice. The court set this hearing to determine if these pleading should be dismissed with prejudice. “[A] plaintiff cannot defeat a defendant's right to obtain a determination on the merits by simply ...

Excerpt: ...rds from Behavioral Health Services - American Recovery Services.” The Separate Statement fails to include the definition provided for the term “YOUR” but for purposes of this motion, the Court assumes that it referred to Plaintiff Ali Moghadam. The requested documents appear to be relevant. According to the Declaration of Grace Park dated 2/8/2019, Plaintiff identified Encino Hospital Medical Center as a facility that provided him treatmen...

Excerpt: ...tals LLC to sit for deposition pursuant to the 11/5/18 deposition notice. The plaintiff shall produce documents at the deposition as well. This plaintiff must appear for its deposition within the next 30 days. The Court awards the Defendant a reasonable monetary sanction of $480 payable by Plaintiff Creative Plant Rentals LLC within 60 days. The movant's additional request for terminating or evidentiary sanctions is DENIED. There has been no cour...

Excerpt: ...ant agreed to comply, in full, with requests 18 and 19. To the extent Defendant has responsive emails that it has not produced, Defendant must produce them within 10 days. Code Civ. Proc. § 2031.320. The remainder of the motion is denied. Defendant was ordered to provide a privilege log if it withheld any documents on the basis of privilege. Defendant has confirmed that it did not provide a privilege log, because no documents have been withheld ...

Excerpt: ...d are not merely correcting a typographical error or making a minor, unsubstantial change. The documents Plaintiff filed on 3/5 include a new separate statement, a declaration from Plaintiff and a revised declaration of Plaintiff's counsel, Mr. Bruchey. The purpose of these documents is to introduce new facts and evidence (i.e., Plaintiff's declaration). This is improper and the Court declines to consider the untimely new documents. Evidentiary O...

Excerpt: ...y of Orange. (Defendant's Exhibit C) substantially complied with the claim filing requirement. “The requirement for advance notice of the claim has at least three purposes. First, it provides the public entity with sufficient information to enable it to perform an adequate investigation of the claim and, if appropriate, settle it without the expense of litigation. . . . Second, the written claim informs the public entity of potential liability ...

Excerpt: ...ion is settled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar 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 mater...

Excerpt: ...ud claim by alleging that Plaintiff mailed his application to the address generated on Defendant's website and that Defendant returned the application, claiming it was mailed to the wrong address. (FAC, ¶ 17.) Plaintiff also claims that Defendant failed to properly ensure that his application was complete before it forwarded it to the British Consulate. (FAC, ¶ 20.) Nevertheless, Plaintiff still has not pled the elements of a fraud cause of act...

Excerpt: ...Defendant's request for judicial notice is granted. First Cause of Action for Breach of Oral Contract. Plaintiffs fail to state sufficient facts to constitute a cause of action for breach of oral contract. The alleged oral contract falls within the statute of frauds. (Civ. Code, § 1624(a)(3) [an agreement for the sale of real property or an interest in real property comes within the statute of frauds]; see also Secrest v. Security Natn'l Loan Tr...

Excerpt: ...aintiff, including, but not necessarily limited to, those contained in Complaint ¶¶ 110, 111, 113, and 115-17 as to COA #4; Complaint ¶¶ 119-31 as to COA #5; Complaint ¶¶ 133-36, 140, 142-47, and 149-154 as to COA #6; Complaint ¶¶ 162-64 and 167 as to COA #7; Complaint ¶¶ 169, 174-87 as to COA #8; and Complaint ¶¶ 190 and 192 as to COA #9. These allegations are properly pled with sufficient facts to inform a defendant whose name is di...

Excerpt: ...m of abuse and custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Thus, health care providers who engage in “simple professional negligence” are not subject to the heightened remedies available under Welfare and Institutions Code section 15657. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 781, 784; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 331, 337.) Here, Plaintiff alleges that whi...

Excerpt: ...ion 13.2(f) in ruling on SCE's motion for prejudgment possession, the Court invokes its inherent authority to reconsider its own interim orders. (LeFrancois v. Goel (2005) 35 Cal. 4th 1094, 1107-1108.) CCP § 1260.040 provides as follows: “If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move the court for a ruling on the issue. The motio...

Excerpt: ...represented to the Court, that there were 441 putative class members (non-exempt employees employed by Defendant in California between September 29, 2013, through March 19, 2018). (See 6/14/18 Setareh Decl., ¶9 [ROA 42].) Now that number has increased by more than 50% to 693 without any explanation. (2/13/19 Alcantara Decl., ¶6.) Presumably, counsel for Plaintiff assessed Defendant's maximum potential liability and the value of the claims in co...

Excerpt: ...this action only on the issue of damages. The court finds that Plaintiff's noneconomic damages were $20,000. By applying the amount that Plaintiff was comparatively at fault for 40%, the net award for general damages was $12,000.00. The award of “zero” damages is inadequate as a matter of law. Plaintiff injured his neck and right shoulder. He received multiple trigger point injections for his neck. In March 2015, he underwent a right rotator ...

Excerpt: ...arch Cove Community Association failed to properly maintain a wall within the community. Prior to trial, Plaintiff objected pursuant to Evidence Code § 352 to the introduction at trial of several judgments previously obtained by Defendant Estates and or Jeffrey Rhoades against Mr. Rodarte (a principal of Plaintiff R&R). [ROA 425.] The Court gave Plaintiff's counsel the option of working on a stipulation or having the judgments admitted. Plaintif...

Excerpt: ... Obj. no. 5 to ¶ 11 (page/line 5:14-19) is sustained on the grounds of legal conclusion (see Towns v. Davidson, supra, at 472-473); and Obj. no. 7 to ¶ 13 (page/line 5:25- 6:10) is sustained only as to the statements at page/line 5:25-6:3 on the grounds of legal conclusion (see Towns v. Davdison, supra, at 472- 473). The remainder of the evidentiary objections to the Rabinoff declaration are overruled. Defendant H2O's evidentiary Obj. no. 2 to ...

Excerpt: ... of Lodgment filed in support of the demurrer and concurrently filed motion to strike. The only complaint on file is the complaint Plaintiff filed on 10/5/2018. This is the operative pleading and the Court considers Association's demurrer as to Plaintiff's 10/5/2018 complaint. Plaintiff did not oppose Association's demurrer. Failure to oppose the demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 13...

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: ...that “[o]n motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” CCP section 2024.050(b) provides, “[i]n exercising its discretion to grant or deny this motion, the court shall take i...

Excerpt: ...nal Complaint at Paragraphs 23 and 24 and Paragraph 1 of the Prayer was inadvertent and that he is not seeking underpaid wages in this action. (Opp., p. 3, lines 13- 20, pp. 4:18-5:8, p. 8, lines 3-5 [“Plaintiff is only seeking those civil penalties that are required to be shared with the LWDA and no individual/victim-specific relief or underpaid wages”]; Messrelian Decl., ¶2-7) After Defendant filed the motion, Plaintiff filed a First Amend...

Excerpt: ...spicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court ruled that non-intentional torts may form the ba...

Excerpt: ...ce to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case), and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117.) Arguments made in the moving papers are insufficient to satisfy this requirement; good cause must be shown by ...

Excerpt: ...(10) days of this ruling. Defendant's Request for Judicial Notice is denied. Defendant requests for the Court to take judicial notice of documents previously filed in this case. 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 2016) �...

Excerpt: ... creates a rebuttable presumption that service was proper. (Floveryor Intl., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Here, Defendant has rebutted the presumption. On its face, the proof of service appears invalid. The proof of service states that another individual (Lance Sarrington), other than Defendant, was served. But, the proof of service represented that Defendant was personally served. The proof of service did not indicate ...

Excerpt: ...orth a brief background of the case is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) Defendant Wesco Insurance Company, Inc. has satisfied its minimal burden to set forth the grounds of good faith and a brief background of the case. Together, its moving papers and supporting declaration adequately set forth the nature of the case and all pertinent facts, the settling parties' relative litigation positions...

Excerpt: ...the continuance is discovered.” (Cal. Rules of Ct., Rule 3.1332(b).) Trial continuances are disfavored. (Cal. Rules of Ct., Rule 3.1332(c).) The Court “may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability o...

Excerpt: ...nded response. Plaintiff shall serve a verified, Code-compliant supplemental response to request number 5 within 15 days of the notice of the ruling. Although the parties dispute the sufficiency of Defendant Peace's meet and confer efforts, Plaintiff does not explain why attorney Mazza did not respond to Defendant Peace's meet and confer correspondence. The court finds that Defendant Peace's meet and confer efforts were adequate. The court awards...

Excerpt: ...ing served a valid objection under Section 2025.410.” (Code Civ. Proc., § 2025.450, subd. (a).) A written objection to a deposition notice must be served at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc., § 2025.410, subd. (a).) The record demonstrates that on October 18, 2018, Plaintiff initially served a notice of the deposition of Decker Prairie RV Park's PMK, scheduled for November 2, 2...

Excerpt: ...ify a specific date, time and place for the deposition. While Plaintiff's counsel represents in his opposition the motion was unnecessary and that he is willing to appear for deposition on March 8, the Court agrees with Defendant's counsel that a court order is appropriate in light of the prior communications, cancelations and delays in scheduling this deposition. It is not clear whether Defendant's counsel is available on March 8, so the Court w...

Excerpt: ...certain, 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...

Excerpt: ...de of the landlord's property managers. . . . Because section 789.3 does not apply to persons other than landlords, we can see no basis for holding the managers liable.” Otanez v. Blue Skies Mobile Home Park (1991) 1 Cal.App.4th 1521, 1526. Since the statute only applies to the landlord, the Demurrer should be sustained with leave to amend. Second Cause of Action for Intentional infliction of Emotional Distress: “In order to allege Intentiona...

Excerpt: ...Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to...

Excerpt: ...f Tadeusz McMahon, Esq. The court grants Defendants' Request for Judicial Notice in its entirety. Plaintiff's objections to the request for judicial notice are overruled. The court can take judicial notice of the records in the pending action, or in any other action pending in the same court or any other court of record in the United States. (Evid. Code, § 452, subd. (d); see Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 192 [court took judi...

Excerpt: ...emurrer is sustained. The plaintiff may file a first amended complaint by 2/22/19. 2. Defendant's motion to strike portions of plaintiff's complaint. No opposition. Motion granted in part, with leave to amend, and denied in part. The motion is granted with respect to the claim for $500,000.00 in damages, but denied as regards the claim for a return of the $10,000.00 allegedly paid to defendant for lease of the subject property. Plaintiff has labe...

Excerpt: ...ds the policy and defeats coverage, and plaintiff has failed to raise a triable issue of material fact as to the application of that defense. “A fraud and concealment clause in an insurance policy generally voids the policy upon the insured's attempts to deceive the insurer. Deceit may involve false representations to obtain benefits after a claimed loss.” Leasure v. MSI Ins. Co. (1998) 65 Cal. App. 4th 244, 248; Cummings v. Fire Ins. Exchang...

Excerpt: ...though a non- signatory, as an employee of defendant FI may enforce this agreement. See, Thomas v. Westlake (2012) 204 Cal.App.4 th 605, 614. Consideration of an application for employment is sufficient to support an agreement for binding arbitration. See, Mago v. Shearson Lehman Hutton Inc. (9 th Cir. 1992) 956 F.2d 932, 933 to 934. The Romo case is distinguishable because the court concluded the arbitration agreement was separate from the emplo...

Excerpt: ...nses prior to the hearing on the “deemed admitted” motion will defeat a propounding party's attempt to have the requests deemed admitted].) A copy of the responses were attached to the opposition. (Zacher Decl. at ¶ 2.) Monetary sanctions are granted in favor of Plaintiff and against Defendant. Within 30 days of the notice of ruling, Defendant Jaridly Corporation shall pay $215 to Brett M. Murdock. Plaintiff shall give notice of the ruling. ...

Excerpt: ...The act of willfully becoming intoxicated and operating a motor vehicle can reasonably be held to reflect a conscious disregard for the safety of others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-96.) However, Plaintiff must show that Defendant's conduct “was such as to amount to a conscious disregard of the safety of and probable injury to other persons.” (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 87.) Plaintiff here pleads that Defend...

Excerpt: ...elevant, false, improper, or not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Defendant's Motion to Strike paragraph 46 also is denied. To properly allege entitlement to punitive damages, there must be circumstances of oppression, fraud or malice, and facts must be alleged in the pleading to support such a claim. (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.) Plaintiffs' First Amended...

Excerpt: ...to exercise its discretion to find this motion timely under CCP §436. Thus, the motion is untimely under CCP §435(b)(1). In any event, this motion, at this time, is not the proper vehicle by which to challenge the case's manageability (if that even is a death knell for PAGA cases, which itself is not legally beyond dispute). Moreover, the other case is a class action suit, and the manageability standards for class action cases are not necessari...

Excerpt: ...lvement in the day to day operation, management or business of AG Seal Beach, LLC. The Court, for good cause shown, may make any order that justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) A Protective Order prohibiting the deposition of a corporate officer at the apex of the corporate hierarchy may be granted absent a reasonable i...

Excerpt: ...e based on violations of Labor Code §§1198 and 510, but neither of those statutes is listed in Labor Code §210 as a statute that may give rise to civil penalties under §210. Plaintiff argues that defendant violated Labor Code §204, which is listed in Labor Code §210, but plaintiff does not cite §204 in her 2nd or 3rd causes of action (and already has her 5th cause of action addressing that statute). The decision in Nationwide Biweekly Admi...

Excerpt: ...gment on the cause of action.” Code Civ. Proc. § 437c(p)(1). Once the plaintiff meets this burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc. § 437c(p)(1). The elements of a claim for unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. Lectrodryer v. Seoul Bank(2000) 77...

Excerpt: ...party to amend any pleading....” Code Civ. Proc., § 473(a)(1). “Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown.” P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345. “In particular, liberality should be displayed in allowing amendments to answers, for a defendant denied leave to amend is pe...

Excerpt: ...to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. (b) For purposes of this section: (1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on a...

Excerpt: ...pondence attached as Exhibit 5 to 5th Rock, LLC's (5th Rock) Notice of Lodging, Bates Nos. 5TH000001--5TH00104 was authenticated in the Holland Depo., Volume VII, 1539:8-1540:15. 5th Rock's objections made as part of its responsive Separate Statement are overruled in their entirety. Facts set forth in a Separate Statement are not evidence and 5th Rock did not properly object to the evidence filed in support of the motion. (CRC 3.1354(b).) Grounds...

Excerpt: ...��A trial court is to apply an objective standard in making its inquiry concerning the attorney's or party's allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7.” (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.) “[T]o obtain sanctions, the moving party must show the party's conduct in asserting the claim was objectively unreasonable. [Citations.] A claim is objectively unreas...

Excerpt: ...ing 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) 25 Cal.4th 826, 850-51. If a d...

Excerpt: ...mance or excuse for failure to perform, defendant's breach, and damage to plaintiff resulting therefrom.” Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655. Plaintiff has established the following undisputed facts: (1) Plaintiff and defendant Buelah Land Christian Center, Church of God in Christ, Inc. (“Defendant”), entered into a written Lease Agreement. (SUF no. 1.) (2) Under the Lease Agreement, Defendant was required to make 63 monthly...

Excerpt: ... of $180, plus accruing attorneys' fees and costs. Plaintiff further requests an Order that Plaintiff is awarded reasonable attorney fees and court costs according to proof. A motion for summary judgment shall be granted only if it disposes of the entire action. (See Code Civ. Proc., § 437c(c).) Here, Plaintiff's verified complaint consists of four causes of action. Plaintiff's motion for summary judgment only addresses two of the four causes of...

Excerpt: ...y Bank of Nev. v. Superior Ct. (1975) 15 Cal.3d 652, 656 (individual has right to privacy in his or her confidential financial affairs); SCC Acquisitions, Inc. v. Superior Ct. (2015) 243 Cal.App.4 th 741, 756 (corporations have non-constitutional right to privacy; corporate right to privacy is “a lesser right than that held by human beings” and requires balancing discovery's relevance to subject matter in dispute and whether discovery appears...

Excerpt: ...774 (Ladas).) Code of Civil Procedure section 1033.5 enumerates allowable costs and costs which are not allowable. Even those amounts that are defined as recoverable under section 1033.5, subdivision (a), may only be recovered if they are both reasonable in amount and reasonably necessary to the conduct of the litigation, as opposed to merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3).) Finally, an ...

Excerpt: ...for waiting time penalties, such a cause of action can be stated against defendant Jeffrey Bulger in his individual capacity based on Labor Code § 558.1, which became effective in 2016. Labor Code § 558.1, McClain v. PQ Beverly Hills, Inc. (CD Cal. 2017) 2017 WL 1250978, and Roush v. MSI Inventory Service Corp. (ED Cal 2018) 2018 WL 3637066. The Reynolds decision in 2005 pre-dates the passage of Labor Code § 558.1. Next, plaintiff Wagner has a...