Excerpt: ...ice of Exhibits 1 and 2 is GRANTED. Proposed Amendment: The cross complainants' current pleading alleges Trespass and Declaratory Relief causes of action. The proposed First Amended Cross Complaint alleges Declaratory Relief, Slander of Title, Interference with Easement and Negligence causes of action. General Amendment Authorities: Motions for leave to amend are directed to the sound discretion of the judge: ‘The court may, in furtherance of j...

Excerpt: ... support of this issue are reasonably established for purposes of this matter. For Fact 1, it was taken from Plaintiff's operative pleading (see 3rd AC, ¶ 12) and in a summary judgment proceeding, the moving party can fairly rely on the judicial admissions made by the opposing party in the opposing party's pleading to establish a fact and the pleader is generally estopped to deny judicial admissions in his or her own pleading. (Thurman v. Baysho...

Excerpt: ..., 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony receive...

Excerpt: ...ation of Mr. Moon also fails to adequately address the basis for seeking relief as to each (or all) of these three defendants. And while it seems to be seeking relief for defendants MK Fitness and Kim, the attached proposed order is as to MK Fitness alone. The Motion also fails to comply with C.C.P. § 473, as no proposed Answer or otherwise responsive pleading has been submitted with the Motion. (See C.C.P. § 473(b) [“Application for this rel...

Excerpt: ...howing of good cause requiring the continuance. Cal. R. Ct. 3.1332(c). California Civil Procedure Code § 2024.050 governs motions to reopen discovery. A motion to reopen discovery shall be accompanied by a meet and confer declaration, id. § 2024.050(a), which Plaintiff's motion is not. In exercising its discretion to grant or deny a motion to reopen discovery, the court “shall take into consideration any matter relevant to the leave requested...

Excerpt: ...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. Howard Jarv...

Excerpt: ... the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion...

Excerpt: ...esponse to interrogatories shall be as complete and straightforward as the information reasonably available to the responding 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. Plaintiff initially responded to each of the above interrogatories with a statement that she “does not have ...

Excerpt: ...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 defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motio...

Excerpt: ...ct. (See Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876, 881.) But the intent element requires that the defendant either intended to commit a battery or was substantially certain that battery would result from his/her conduct. (CACI 1320; Ashcraft v. King(1991) 228 Cal.App.3d 604, 613.) Plaintiffs assert that by sending them to an infested room, AMC's agents caused them to be bitten by th...

Excerpt: ...perior Court (2008) 159 Cal. App. 4th 273, 286 (citing Cal. Civ. Proc. Code § 367). Standing is a threshold issue. Ibid. The Second Amended Complaint contains 3 causes of action. They are: Breach of promissory note; money lent; and complaint to set aside fraudulent transfer. To allege breach of contract (promissory note), Plaintiff must allege: (1) the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; an...

Excerpt: ...hat there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those o...

Excerpt: ...ttached as Exhibit A to the Declaration of Don McCarroll. Section 10 of the Employment Agreement is the arbitration provision, which states: (a) Any controversy between Employer and Employee involving the consideration or application of any of the terms, provisions, or conditions of this agreement shall on the written request of either party served on the other be submitted to arbitration. Arbitration shall comply with and be governed by the prov...

Excerpt: ...A-Rural Residential? 2. Where in the General Plan are there statements that supports the County's position that the proposed Project is in “harmony” with the terms of the Plan insofar as the Rural Residential designation is concerned? 3. Is the property in question truly a commercial facility? Would it be permissible to have a wedding at the property without charging for use of the facility, i.e., a “non-commercial” use? 4. Can the Court ...

Excerpt: ...person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall co...

Excerpt: ...relevant allegations are as follows:  “On or about May 31, 2016 defendant KATIE NAPIER consumed a grossly excess [sic] amount of alcoholic beverages to the point that she became excessively intoxicated despite knowing that she would need to operate a motor vehicle later on that evening. Even though defendant KATIE NAPIER knew she was drunk and should not be driving a motor vehicle…defendant KATIE NAPIER decided to knowingly operate her Mot...

Excerpt: ...ence to show damages are not adequate or that Defendant is likely to use or disseminate the information/records at issue here? This Court notes this case is six (6) years old. There is no showing that since Defendant obtained the information/records here she has continued to use this information to Plaintiffs' detriment. Plaintiffs do not identify any RFJN document which establishes the Bankruptcy Court specifically found Defendant is likely to u...

Excerpt: ... is objecting to her own deposition testimony, the objection is overruled. 2. 2 -6 = Overruled. Defendant's Evidentiary Objections: 1-4, 10-16, 18-24 = Overruled 5-9, 17 = Sustained Motion for Summary Adjudication Issue 1: Plaintiffs first COA (retaliation in violation of Labor Code § 1102.5) Allegations in the Complaint: The Complaint alleges Plaintiff harbored a reasonable belief that reducing and eliminating training in Quality and Safety, am...

Excerpt: ...ivate conversations with Abrica on her cell phone without Abrica's knowledge or consent in violation of the CIPA. (See Cross-Complainants' Separate Statement (“PSS”) ¶¶ 3-19.) Cross-Defendant, in opposition, contends her recording of Abrica was not unlawful because she made the recording for the purposes of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of a felony invol...

Excerpt: ... assert the 1 st and 2nd COAs because these claims allege violations of Labor Code section 3820(b)(3), not Insurance Code section 1871.7(a), and under the labor code provision, only the district attorney has standing to assert same. Not so. The 1 st COA alleges Defendants violated Insurance Code section 1871.7(a) because they “employed James, along with other Sales and Marketing Representatives specifically to procure clients or patients to obt...

Excerpt: ...4 th 394, 420-421, County of Riverside v. Public Employment Relations Board (2016) 246 Cal.App.4 th 20, 32, and Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1404) cited by Plaintiffs do not support their request for a stay. Code of Civil Procedure section 425.16, subdivision (c)(1), states, “Except as provided in paragraph (2), in an action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to re...

Excerpt: ... deem plaintiffs to have abandoned the issue.”].) Here, based on the above, it appears Cross-Complainant has conceded MP's arguments; however, as this is Cross- Complainant's first attempt at pleading his claims, the Court will SUSTAIN the Demurrer, in whole, with 15 days leave to amend. (2) Motion to Strike is MOOT. RFJN is granted to the extent the documents exist, but not to the truth of the contents therein. Counsel is reminded to engage in...

Excerpt: ...l issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) “Under the Claims Act, no suit for ‘money or damages' may be brought against a public entity until a written claim has been pr...

Excerpt: ...pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) “Under the Claims Act, no suit for ‘money or damages' may be brought against a public entity until a written claim has been presented to the public entity and the claim either has been acted upon or is deemed to have bee...

Excerpt: ... asserted in these documents. (Sosinsky v. Grant(1992) 6 Cal.App.4th 1548, 1564-1570.) The court DENIES the Motion because Cross-Defendants/Cross- Complainants fail to submit a separate statement in support of the Motion to Quash as required by Cal. Rules of Ct., Rule 3.1345(a). The court further DENIES the Motion for the reasons below. On 3-7-13, the court granted Cross-Complainants' motion for discovery regarding financial condition (filed on 1...

Excerpt: ...intiffs to file Opposition to the Motion or before March 4, 2019. Defendant may file its Reply and other documents pursuant to Code. While Plaintiffs' counsel associated an additional attorney to represent the client, the Association of Counsel was not filed with the court. When associated counsel attempted to file Opposition to this Summary Judgment Motion, the papers were rejected. Although Plaintiff counsel had a clerical error, this court sho...

Excerpt: ..., this Court notes that the opposition papers were late. However, the principal purpose behind the statutory timing requirements is to insure that both sides have adequate time to respond. That purpose is served if the aggrieved party can still prepare a responsive memorandum. See In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 828-829; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 343; Carlton v. Quint (2000) 77 Cal.App.4th 6...

Excerpt: ...ial Services NA, LLC. Responding Party Defendant First Class Aviation, Inc. Ruling Motion 2: Plaintiff's unopposed application for writ of possession is GRANTED. Plaintiff has sufficiently shown that it is entitled to possession of the subject 2016 Land Rover Range Rover motor vehicle, serial number SALGS2EF1GA293504 (“Vehicle”); Defendants Mahmod Maggy Mouefi aka Mahmod M. Mouefi aka Mahmod Mouefi or First Class Aviation, Inc. are wrongfully...

Excerpt: ... Court Case No. BC590724, and the arguments raised by the parties on the grounds that they are not relevant for the purposes of the instant motion. Motion to Compel Arbitration: Defendant submits evidence that Plaintiff signed an arbitration agreement which requires Plaintiff's claims against Defendant in this action to be resolved by binding arbitration. (Declaration of Chelsey Banos at ¶¶ 2-3, Exhibits A-B.) Plaintiff, in opposition, does not...

Excerpt: ...holder derivative claims, by failing to allege compliance with Corporations Code §800(d). In this instance, the Complaint alleges Defendants embezzled funds from Heyvoon, Inc. (See ¶16 of FAC). Additionally, the Complaint expressly alleges “Defendants have taken approximately $143,000 of money which belongs to Heyvoon, Inc….” (Id.). Indeed, continuous references to corporate property are included within the First through Third Causes of A...

Excerpt: ...s uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. The Second Amended Complaint is sufficiently certain for Defendant to answer the Complaint. Undertaking Creates a Duty: “The foundational requirement for liability under a negligent undertaking theory is the undertaking of a task that the defendant allegedly performed negligently. . . . The...

Excerpt: ...er a jury returned a not guilty verdict and the trial court ordered Plaintiff's release on May 15, 2017. (See SAC, Page 2, Lines 7- 13 and TAC, Page 1, Lines 18- 21.) However, the Third Amended Complaint and the exhibits attached thereto, fail to demonstrate that Plaintiff provided adequate facts or notice that he was complaining about a false imprisonment which occurred AFTER the not-guilty jury verdict and order of the court on May 15, 2017. Ra...

Excerpt: ...eigh any opposition by the existing parties. (Code Civ. Proc., § 387(a); Truck Ins. Exch. v. Superior Court (1997) 60 Cal.App.4th 342, 346.) Permissive intervention will not be allowed when it would retard the principal suit, or require a reopening of the case for further evidence, or delay the trial of the action, or change the position of the original parties. (City of Malibu v. California Coastal Comm'n (2005) 128 Cal. App. 4th 897, 906.) The...

Excerpt: ...al.App.4th 1371, 1378. In deciding whether to issue a preliminary injunction, a court must weigh two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. “The trial court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one,...

Excerpt: ...r defendant herein. Demurrer SUSTAINED. Plaintiff must provide an offer of proof in order to secure leave to amend. Theresa Van Haeren. There is no mention of this individual anywhere within the operative pleading, save for an averment regarding her county of residence. There is mention of her in the opposition papers as having acted in a fiduciary capacity regarding plaintiff's deceased mother. It is not clear why plaintiff alleges conversion ra...

Excerpt: ...upervisor, attacked him on several occasions. Steven Estrella threatened him for taking time off. In addition, Plaintiff asserted that his Supervisor was upset that Plaintiff complained about Eric Estrella, Steven's son, videotaping with his cell phone. Separate Statement: CRC Rule 3.1350 (b) requires that “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action...

Excerpt: ...w evidence in their Reply. “The general rule of motion practice … is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 312, as modified (Oct. 9, 2002) (“Assignee contends the trial court erred when it considered the supplemental declaration which landlord submitted with its reply papers. We agree.”)....

Excerpt: ...nk of San Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1527; see also Hassan decl. ¶ 4; Ocwen's RFJN Ex. 9.) Plaintiffs' attempt to relitigate these claims is also untimely. Plaintiffs knew or reasonably should have known of their claims by the time they filed their 2012 case, if not by their 2009 default or the 2006 loan. And plaintiffs have not alleged how they have been injured. Their loan is still outstanding; the ba...

Excerpt: ..., 892–893 (the term pain and suffering includes the mental component); Vinson v. Superior Court (1987) 43 Cal.3d 833, 840–842, 847; Acuna v. Regents of University of California (1997) 56 Cal.App.4th 639, 653; Whitfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 81, 82.) In Capelouto, the Supreme Court said that a child is entitled to recover for pain and suffering on the same basis as an adult. The court recognized that a ...

Excerpt: ...ion that conforms with the page requirements of the Rules of Court. The amended opposition must be filed and served, pursuant to code, no later than 03/12/19. Defendants will may file and serve their own amended reply brief responding to Plaintiffs' amended opposition, no later than 03/18/19. The amended reply brief must also be filed and served pursuant to code. Finally, the Court notes that Plaintiffs filed what appears to be a Sur-Reply to Def...

Excerpt: ... action when it believes that the action may be more appropriately and justly tried elsewhere. Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751. A trial court considering a forum non conveniens issue engages in a two-step process: First, the court must determine whether a suitable alternative forum exists. An alternative forum is suitable if it has jurisdiction and the action in that forum will not be barred by the statute of limitations. It is ...

Excerpt: ... attorney's fees. To the extent Plaintiff intended to seek fees pursuant to C.C.P. §874.020, there has been no showing the referenced fees were incurred for the mutual benefit of the parties, as opposed to “litigating purely controversial issues…” (See C.C.P. §874.020 and Stewart v. Abernathy (1944) 62 Cal.App.2d 429, 433). Alternatively, to the extent the instant Motion is brought pursuant to the Settlement Agreement, the request is prem...

Excerpt: ...nts to an incorrect address – where someone signed for them. Had no one signed for the documents, the agent would have been on notice to confirm defendant's address – as it did when its subsequent mail to defendant was returned as undeliverable. While defendant could have better ensured its agent had the correct address in the first place, it had no control over its FedEx package being accepted and signed for by a stranger. Defendant's neglec...

Excerpt: ... without regard to the laws of those particular states. (McKenzie Decl., Exs. A & B.) But a non- party resident of a foreign state can be compelled for deposition only under the law of the place where the deposition is to be taken. (See C.C.P. § 2026.010 et seq., 2029.100 et seq, and Rutter Group, Civil Procedure Before Trial §8:637 – 8:640.) Plaintiff here has failed to show that its subpoenas complied. The Motion is therefore GRANTED as to ...

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

Excerpt: ...be determined in connection with Plaintiff's Third Cause of Action is whether Plaintiff's subdivision application should be “deemed approved” under California's Permit Streamlining Act (the “Act”), Government Code section 65920 et seq., and in particular, pursuant to Section 65956(b). (See Plaintiff's Motion, p. 1, lines 16-19, p. 2 [heading II], lines 12-14, Plaintiff's SSUF No. 10; Defendant's Motion, p. 2, lines 8-10.) In his motion, P...

Excerpt: ...tice of documents filed in the instant matter is denied. 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) ¶ 9:53.1a.) Fleming's evidentiary objections to Shirley Bridwell's declaration are sustained as to nos. 1, 2, 5, and 8, t...

Excerpt: ...t an “employer” as a matter of law under FEHA. Pursuant to a Stipulation and Order, the parties agreed to bifurcate Defendant's motion, so the only issues to be decided in this phase are Issues 1 and 2 and any legal effect that may result as to the remaining issues as a result of the Court's ruling. The Motion for Summary Adjudication is DENIED as to Issue 1 (Ministerial Exception) and GRANTED as to Issue 2 (FEHA). Rulings on Evidence Plainti...

Excerpt: ...iff's full response, verbatim, in the separate statement. Sufficient responses were provided to form interrogatory no. 7.3 and special interrogatory no. 25. The Motion is denied as to form interrogatory nos. 6.4, 7.3 and special interrogatory no. 25. Form Interrogatory No. 4.1 Plaintiff provided his auto insurance information in response to this interrogatory, but does not provide his medical insurance information. In Plaintiff's separate stateme...

Excerpt: ...eneral jurisdiction, in that Plaintiff fails to present evidence that demonstrates that Defendant Brook Kozlowski was located in California, or that he conducted sufficient business in California to support general jurisdiction. (Daimler AG v. Bauman (2014) 571 U.S. 117). However, Plaintiff's evidence is sufficient to demonstrate the existence of specific jurisdiction over Defendant Brook Kozlowski. Plaintiff presents evidence that Defendant Kozl...

Excerpt: ...es a claim for loss of consortium. The defendants do not cite any case that addresses that specific issue. Both Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274 and Lantis v. Condon (1979) 95 Cal.App.3d 152 simply hold that this cause of action is not derivative to the other spouse's injury and damages. The plaintiff shall give notice. ...

Excerpt: ... terminating, issue and/or evidentiary sanctions is GRANTED in part as to an evidentiary sanction. C.C.P. § 2023.030(c) but DENIED as to terminating sanctions. Terminating sanctions are to be used sparingly and plaintiff Nancy Horner has submitted to depositions and produced discovery responses, even if not fully compliant with the discovery act. Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4 th 736, 764 to 765. The Parker case is disti...

Excerpt: ...esented evidence to create triable issues of material fact as to a prima facie case for violation of Labor Code § 1102.5. Labor Code § 1102.5(b), Civil Code § 1798.81.5(b), McVeigh v. Recology San Francisco (2013) 213 Cal.App.4 th 443, 468. [Plaintiff's Response to Defendant's UMF Nos. 3 and 16.] Also, temporal proximity between the claimed reporting and termination is sufficient to support a prima facie case. Loggins v. Kaiser Permanente Int'...

Excerpt: ...reasonable fee altogether”].) The fee declaration by attorney Hailyn Chen states that this matter was handled pursuant to an “alternative fee arrangement,” but that her standard hourly rate in 2018 while this matter was pending was $850 per hour. Is there any evidence that that is a reasonable hourly fee for like work in Orange County? In his opposition to the motion for attorney fees, the plaintiff suggests the defendants are not obligated...

Excerpt: ...denials of factual contentions. The court granted Defendant's summary judgment motion on November 1, 2018. See11/01/18 Order. For the following reasons, Defendant's motion is denied. Sanctions may be imposed pursuant to section 128.7(b)(2) if a paper contains a claim, defense, or other legal contention that is not warranted by existing law or by nonfrivolous argument for the extension, modification, or reversal of existing law or the establishmen...

Excerpt: ...party if any party to the action requests attorney's fees and costs upon the initiation of the action. However, if the prevailing party in the court action is not an employee, attorney's fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith. This section shall not apply to an action brought by the Labor Commissioner. This section shall not apply to a surety issuing...

Excerpt: ...is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day” (emphasis added). Cannivet contends that the $355,455 in damages awarded to him was certain or capable of being made certain by virtue of the fact the monies related directly to services rendered. The test for determining...

Excerpt: ...he parties to engage in a meet and confer conference to occur within the next 10 days to discuss the amendment of the pleading and any future responsive pleadings. Plaintiff must initiate the conference. The amended complaint is due within 10 days after the conference occurs. For reasons of judicial economy, the Court is not granting Plaintiff leave to add new causes of action at this time but Plaintiff may pursue a noticed motion for leave to am...

Excerpt: ...ved for the jury if reasonable men could differ (see Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499), and particularly when it is combined with a claim for breach of implied warranty of habitability (see Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922). Here, the failure to repair knowingly harmful mold may reasonably be found to qualify as “outrageous.” 2. Fifth Cause of Action for Nuisance Because this claim is not being as...

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

Excerpt: ...emurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Pr...

Excerpt: ...t is time barred by the 3-year statute of limitations under CCP § 338(d). The Complaint does not invoke the delayed discovery rule. Even if it did, the delayed discovery rule does not apply. Constructive notice is the equivalent of actual notice (Citizens for Covenant Compliance v. Anderson(1995) 12 Cal.4th 345, 355). A marriage certificate is a matter of public record. If Alma Bouchot Soto was legally married to someone else, plaintiff would ha...

Excerpt: ...acts” and “uncertainty,” as against each Affirmative Defense. Nonetheless, as the Notice references the “[F]irst through Fifteenth Affirmative Defenses,” the Court will interpret the Notice as demurring to each individual Affirmative Defense. Next, pursuant to Code of Civil Procedure section 430.20, a party may Demurrer to an Answer, where the Answer “does not state facts sufficient to constitute a defense” or “is uncertain.” (S...

Excerpt: ...re section 170.6, subdivision (a)(2), provides, in relevant part, “The fact that a judge, court commissioner, or referee has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion prior to trial, and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph at the time and in the manner herein pr...

Excerpt: ...ntial Listing Agreement, which states: “Broker agrees to exercise reasonable effort and due diligence to achieve the purposes of this Agreement.” (See ¶7(a) of Exhibit A to FAC). Additionally, Plaintiff cites to the Disclosure attached as Exhibit B of the FAC, which states: “A Seller's agent…has the following affirmative obligations: To the Seller: A Fiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Selle...

Excerpt: ...ies listed on Annex A shall take all appropriate actions to dismiss their monetary claims against the Debtors with prejudice within such time frame.” (See Notice filed January 17, 2018; See also Exhibit 5 of RJN [underlining added].) Included within Annex A is an express reference to this case and the statement: “The parties' proofs of claim were expunged by Court order [Docket 4328 and 5892].” (See Exhibit 5 of RFJN, Item No. 6 in Annex A)...

Excerpt: ...Exhibit 2 to Declaration of Scott Moore filed on 9-19-18. (Salvaty v. Falcon Cable TV(1985) 165 Cal. App. 3d 798, 800 – when a complainant references an agreement in the complaint and gives no indication why judicial notice would be improper, the court may take judicial notice of the complete document; San Francisco Unif. Sch. Dist. ex rel. Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal. App. 4th 438, 444 n.5 – Courts have taken judicial n...

Excerpt: ...may be proper, may allow the amendment of any pleading or pretrial conference order.” Similarly, per Code of Civil Procedure section 473(a), a court may, in its discretion and in the furtherance of justice, allow a party to amend any pleading. A motion for leave to amend is proper and should be granted if said motion is timely made and the granting of that motion will not prejudice the opposing party. (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 52...

Excerpt: ...rder. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” Code of Civil Procedure section 2031.060, subdivision (b), provides, “The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the foll...

Excerpt: ...) as the Objections were filed and served on 1-9-19, two days after the Opposition papers were due and also fail to comply with 3.1354(b). Plaintiff's Evidentiary Objections in Support of the Reply: The Court SUSTAINS Objection No. 1. Plaintiff is correct that Defendant's lodging of the entire deposition of Richard Therrien failed to comply with CRC Rule 3.1116. However, the Court will still consider same as evidence in support of the Opposition....

Excerpt: ...ction 452, subdivision (d), as to the existence of the documents marked as exhibits, but not as to the truth of the matters asserted in these documents. (Sosinsky v. Grant (1992) 6 Cal.App.4 th 1548, 1564-1570.) On 3-7-13, the court granted Cross-Complainants' motion for discovery regarding financial condition (filed on 11-28-12). (3-7- 13 Minute Order.) On 7-29-14, the court appears to have confirmed the 3-7-13 ruling. (7-29-14 Minute Order.) On...

Excerpt: ...To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 62.) Whether a duty of care exists is a question of law to be determined on a case-by-case basis. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 4...

Excerpt: ...n is DENIED. Defendant presents evidence that it has already produced the entire investigative file concerning Mr. Alcala and Mr. Padilla's involvement in the discovery of a homeless encampment under the Newhope St. bridge of State Route 22 freeway (“Newhope”) and the presence of private equipment being stored on the State right of way. (SeeMorrison Decl., ¶ 15.) Defendant has also produced the findings of the investigations into Mr. Alcala ...

Excerpt: ...rt, upon motion, may enter judgment pursuant to the terms of the settlement. If requested, by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Weddington Productions, Inc. v. Flick (Weddington) (1998) 60 Cal.App.4 th 793, 809-810, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract ...

Excerpt: ...ck of jurisdiction of the court over him or her.” “When a defendant challenges the court's personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to effective service.' ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (footnote 35 omitted); Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1160.) Lebel v. Mai (201...

Excerpt: ...urprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for reli...

Excerpt: ...urt's fundamental power to hear or determine a case, we are persuaded it is more appropriate and just to treat a corporation's failure to be represented by an attorney as a defect that may be corrected, on such terms as are just in the sound discretion of the court. First and foremost, this approach honors the cornerstone jurisprudential policies that, in furtherance of justice, complaints are to be liberally construed (§ 452) and disputes shoul...

Excerpt: ...efendants, Jason Askenaze and Roger Urroz, on the FEHA Discrimination Claims, to the 11 th to 13 th C/A: In prior rulings, it was noted that FEHA does not provide for personal liability of individual supervisors, co-workers, or nonemploying individuals, for discrimination claims. FEHA makes the individual employer, or organizational employer liable. (See Minutes of 4/30/18, p. 2. SeeGovt Code §12940(a), §12926(d); Jones v. Lodge at Torrey Pines...

Excerpt: ...s (1967) 66 Cal.2d 435, 437; Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168); two years for interference with prospective economic advantage (CCP § 339(1); Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 10); also two years for negligence (CCP § 335.1); and four years for a violation of §17200. (B&P § 17208; Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1193.) Generally, a cause of action accrues when...

Excerpt: ...act claim. MPs argue that the agreement on its face was to serve solely as a backup for any refusal by the insurer to pay. But that is not self-evident from the face of the agreement. (XC Ex. 1.) And the XC at ¶ 12 specifically asserts that Advance was told not to bill the insurer. Where a pleading is based on an attached written contract, a general demurrer admits not only the contents of the instrument but also any pleaded meaning to which it ...

Excerpt: ...C on the basis that it contains little more than conclusory statements and conjecture. It does not plead specific facts supporting fraud, malice, or oppression as required by Civ. Code § 3294; ‐ TAC ¶¶ 48-50 – These paragraphs merely parrot the law of Civ. Code § 3294(b), and provide no specific facts to support the allegations; ‐ TAC ¶¶ 89, 91, 92, and 97 – As pled, these paragraphs appear to argue a class action, which has not bee...

Excerpt: ...egations included in Plaintiff's SAC do not sufficiently address the issues raised in the Court's 7/19/2018 and 10/30/2018 rulings sustaining District's demurrers with leave to amend. The Court denies Plaintiff's request for judicial notice. The Board Policy that is the subject of the request is not an appropriate subject of judicial notice. Civil Code section 51.9 provides, in pertinent part: (a) A person is liable in a cause of action for sexua...

Excerpt: ...es of Court, Rule 3.1324, the moving party must: a) Specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and b) Include with the moving papers:  a copy of the proposed amended pleading; and  a declaration specifying: (1) the effect of the amendment(s); (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and ...

Excerpt: ...cial notice is granted as to Exhibits 1-10. (Evid. Code § 452(h)), though it is unnecessary to ask the court to take judicial notice of materials previously filed in this case. First Cause of Action (Predatory Lending Violations). The demurrer to the first cause of action for predatory lending violations is sustained with leave to amend. The SAC does not allege facts to show the loan at issue to be a “covered loan” pursuant to Financial Code...

Excerpt: ... the first cause of action in moot in light of the ruling on the demurrer. The Court notes, however, that moving defendant Ocean Hills Recovery, Inc. is not named in the fourth cause of action. It appears to be asserted only against Doe I. Request for Judicial Notice (RJN) The Court denies Plaintiff's Request for Judicial notice on two grounds. First, the document for which judicial notice is sought are irrelevant, as they relate to different fac...

Excerpt: ...sustained with 15 days leave to amend as to the third and fourth causes of action. Defendants' motion to strike is granted in part and is denied in part. The motion to strike is granted as to the prayer on the first cause of action, item 2, and the prayer on the second cause of action, items 2 and 3. It is otherwise denied as moot. Demurrer A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading....

Excerpt: ...emurrer to the Third Cause of Action is OVERRULED. (Code Civ. Proc., § 430.10(e).) The elements of a cause of action for financial elder abuse are: (i) Defendant took or retained plaintiff's property; (ii) Plaintiff was 65 years or older at the time of the conduct; (iii) Defendant took or retained Plaintiff's property for a wrongful use, with the intent to defraud, or by undue influence; (iv) Plaintiff was harmed; and (v) Defendant's conduct was...

Excerpt: ...urrer to the sixteenth and seventeenth causes of action is SUSTAINED for failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10(e).) Plaintiff shall file and serve an amended complaint within 15 days of service of the notice of ruling. Government Claims Act – Notice Requirements “The Government Claims Act (§ 810 et seq.) establishes certain conditions precedent to the filing of a lawsuit against a publ...

Excerpt: ...failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim(1941) 18 Cal. 2d 872, 883.) “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. 4 th 612, 616.) Further, uncerta...

Excerpt: ...hich of the hours expended by the attorneys were “reasonably spent” on the litigation. (Meister v. Regents of University of California (1998) 67 Cal.App.4th 437, 449.) Additionally, a trial court has broad discretion to determine the amount of reasonable attorney's fees, as an experienced trial judge is in the best position to decide [the] value of professional services rendered in court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1...

Excerpt: ...upport the position of the party in question.” (Id. at 851.) A defendant seeking summary judgment meets the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc. § 437c(p)(2); Villacres v. ABM Industries, Inc.(2010) 189 Cal. App. 4 th 562, 575.) The scope of this burden is determined by...

Excerpt: ...her proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Code Civ. Proc., § 473(...

Excerpt: ...to Form Interrogatories, Special Interrogatories, and Requests for Production, and to Deem Facts in the Requests for Admission as Admitted is GRANTED IN PART, AND DENIED IN PART. On 11/19/18, Defendant personally served plaintiff Shakeel Ahmed (“Plaintiff”) through his then attorney of record with written discovery requests. Goldstein Decls. Exs. A. Plaintiff's responses to these requests were due to be served no later than 12/19/18. CCP §§...

Excerpt: ...leged documents in its possession, custody, or control within 20 days. Defendant Kindred Healthcare Operating Inc. shall serve complete, code-compliant, verified further responses -- without objection other than attorney-client privilege, work-product protection, third-party privacy, or Evidence Code section 1157 -- to plaintiff's requests for production #14 and 23 within 10 days, and shall produce all responsive, nonprivileged documents in its p...

Excerpt: ... (Code Civ. Proc., §§ 2030.300; 2031.310.) Plaintiff asserted essentially the same objections in response to each of the Requests for Production (“RFP”) at issue: (1) the RFPs are overbroad, unintelligible, vague and ambiguous, and burdensome, (2) the RFPs invade Plaintiff's right to privacy, and (3) the RFPs are not relevant to the subject matter of this action. (Kolar Dec., Ex. B.) The RFPs at issue are not vague or ambiguous, and Plainti...

Excerpt: ...c. (No. 6) (collectively “Cross-Defendants”) to serve verified responses confirming full production of responsive documents; and compelling them to produce the documents response to RFP, Set No. Three, including specifically RFP Nos. 31-38 and 43; and monetary sanctions in the amount of $8,367.40 payable by Cross- Defendants and/or their counsel. Motions 2-6 are Denied without prejudice. Cross Complainants filed one motion failing to address ...

Excerpt: ...ted deposition officer on or before 11/02/18. No response occurred by that date, nor did Epoxy2U object, seek an extension or move for a protective order. The production date passed without so much as a whisper. However, all is not so clear. The individual responsible for making personal service upon Epoxy2U included with the subpoena a “service packet” containing a cover letter from the deposition officer, a letter from plaintiff's counsel, ...

Excerpt: ...., the pre-printed dates on the Notice and Motion are approximately three months apart, and there is no date on the Korff Decl. It appears that this motion may have been filed in error or may be incomplete. Cross- Complainants may serve and re-file this motion at a later date should they so choose. B) Motion for Leave to File Amended Cross-Complaint Cross-Complainants unopposed Motion to File a First Amended Cross- Complaint (“Motion”) is DEN...

Excerpt: ...a Bolt's ex parte application is denied. OSC is moot. A plaintiff generally has an unfettered right under CCP § 581 to dismiss a cause of action before the commencement of trial. Panakosta Partners, LP v Hammer Lane Mgmt., LLC (2011) 199 CA4th 612, 632–633 (“a substantial and fairly complex body of case law has grown up involving when—and when not—a plaintiff's statutory right to dismiss … is cut off by the presence of some impending �...

Excerpt: ...act Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1262.) In their briefs, each party recognizes different ways in which the subpoena might be limited. They should continue exploring the specific information that defendants seek and plaintiff's exact concerns about that specific information. There is reasonable middle ground here. The court is confident the parties can find it. The court anticipates this matter will be resolved before Mond...