Excerpt: ...th enough lead time to reasonably permit the deponent to prepare and/or respond. CCP §§ 1987(a), 2020.220(a); California Shellfish Inc. v. United Shellfish Co. (1997) 56 Cal.App.4 th 16, 20-21. The subpoena must include an affidavit demonstrating good cause for the requested documents, materiality of the documents to the issues to be addressed, and a basis for believing the witness possesses or controls the documents. CCP § 1985(b). Any intere...

Excerpt: ...r context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer on the ground of uncertainty is disfavored and should be sustained only when the complaint is so incomprehensible that the defendant cannot reasonably respond since ambiguities may be clarified in discovery. (Lickiss v. Financial indus. Regulatory Auth. (2012) 208 Cal.app.4 th 1125, 1135.) When the allegations in a complaint are sufficiently specific to apprise defendant of the is...

Excerpt: ...opounded to plaintiff Lewis Garcia, by and through his guardian, Enrique Garcia regarding the lawsuit of Jacquelyn Negrete; Lewis Garcia by and through G.A.L., Enrique Garcia, Plaintiff, vs. Granny's Attic, Inc., Granny's Attic, Inc. dba the Old Town Antique Faire and Does 1 to 10, Defendants, Case No. MCC1600109, filed in the Riverside County Superior Court, State of California (the “Granny's Attic Litigation”); (2) deposition transcripts re...

Excerpt: ...17.020.) The court exercises its discretion to consider the motion to quash despite Defendant's failure to provide a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should be compelled. (Cal. R. Ct., rule 3.1345(a)(5).) Upon a motion reasonably made by a party, the court may quash, modify or direct compliance with a subpoena for production of documents. (Code Civ. Proc...

Excerpt: ...ode of Civil Procedure Section 1987.1 provides that the court, upon noticed motion, may make an order compelling compliance with a deposition subpoena. Section 2025.450(a) further provides that if a party witness fails to produce documents, the noticing party may move for an order compelling the production of any document described in the deposition notice. This motion is not moot because YouTube has not fully complied with its obligations under ...

Excerpt: ... least some information and facts supporting his defenses, including in the least his own name and contact information, if he is the one alleging those defenses. As there were no objection to FROG No. 15.1, and as Defendant did not provide a proper response, a further substantive response is necessary. As to FROG 17.1, many of Defendant's objections to the RFAs are unmerited (see ruling on Motion to Compel Further Responses to Requests for Admiss...

Excerpt: ...onsider the late filed opposition. Sanctions are awarded against Plaintiff in the sum of $1,500. (2) Defendants' motion for order compelling Plaintiff to appear for an independent neurological examination by Barry Ludwig, M.D. on 12/17/19 at 1:00 p.m. in Santa Monica is granted. The exam may include only the specific diagnostic tests and procedures set forth in the Notice of Motion. The exam may not be videotaped or audiotaped. Defendants are to ...

Excerpt: ...ks summary judgment in its favor on ARI's First Amended Cross-Complaint, or in the alternative, summary adjudication as to the four causes of action therein. “A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” Code Civ. Proc., § 437c(a)(1). “A cause of action has no merit if either of the following exists: (1) One or mor...

Excerpt: ...msl, ¶¶ 15 and 16 indicate that Dr. Himsl cannot absolutely rule out, to a reasonable medical probability, that the stent procedure itself caused Plaintiff's injuries. Dr. Himsl does not expressly state that the stent placement procedural did not cause Plaintiff's injuries. Therefore, Defendant has not met his burden as to whether the stent removal procedure itself caused Plaintiff's injuries. As to the second cause of action for lack of inform...

Excerpt: ...sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.” Collectors Universe did not specifically identify the issues in the notice of motion and did not state the summary adjudication issues verbatim in t...

Excerpt: ...ity (2012) 208 Cal.App.4th 1125, 1135.) 2rd cause of action, breach of lease. The complaint states facts sufficient to constitute this claim. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) The complaint does so. (Compl. ¶¶ 4, 22-24.) 3rd cause of action, bad ...

Excerpt: ...t toward or disposition of the property, interfering with plaintiff's possession, and damage to plaintiff. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.) Money cannot be the subject of a conversion claim unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. (Id.) The plaintiff must allege a right to immediate possession at t...

Excerpt: ...5:1). Defendant asserts the Complaint includes insufficient facts and is uncertain, “[e]specially given the context set forth above.” (See Demurrer: 5:2). The context referenced by Defendant and heavily relied on in this Demurrer, are factual allegations included within Defendant's Texas Petition; however, while the Court may take judicial notice of the fact such a petition has been filed, the Court cannot take judicial notice of the truth of...

Excerpt: ...f a receiver is a drastic remedy, may involve unnecessary expense and hardship and courts carefully weigh the propriety of such appointment in exercising their discretion to appoint a receiver particularly if there is an alternative remedy.”]) When it appears that no reasonably certain benefit will result to one litigant, and a distinct disadvantage will result to another, courts should carefully weigh the propriety of appointing a receiver. (C...

Excerpt: .../12/19, the Court adopted the recommendation and ordered Plaintiff to provide supplemental responses to those form interrogatories within 30 days. Exhibit K. Defendants now move for terminating sanctions or evidentiary sanctions or an order compelling further responses, based on the assertion that Plaintiff's responses to Form Interrogatories 2.6 and 17.1 remain deficient. In addition, Defendants ask this Court to designate Plaintiffs' responses ...

Excerpt: ...y “the CDG Defendants”) argue that Plaintiffs lack standing to bring the Ninth Cause of Action for Illegal Ownership and Operation of Dental Clinics and the Tenth Cause of action for Declaratory Relief because there is no private right of action under the California Dental Practice Act, Business & Professions Code § 1600 et seq. Defendant Jerry Minsky, D.D.S. joins in the motion. The Ninth Cause of Action alleges that the CDG Defendants and ...

Excerpt: ...s filed on October 30, 2019, but which was not part of the document filed with the court. (Nor were Exhibits 4 or 7.) The court has a copy of Exhibit 9 from the courtesy copy binder plaintiffs submitted, and defendant appears to have the declaration since defendant referenced it in its opposition. Plaintiffs may not recover their costs of suit for the trial. Plaintiffs filed a Memorandum of Costs, defendant moved to tax costs, this court granted ...

Excerpt: ...vide Accurate Itemized Wage Statements; (5) Failure to Pay All Wages Due Upon Separation of Employment; (6) Violation of Business and Professions Code §§ 17200, et seq.; and (7) Enforcement of Labor Code § 2698, et seq. (“PAGA”). Defendant Woodbridge demurs to the entire complaint and the 1st through 6th causes of action on the ground that they are fatally uncertain because Plaintiff fails to sufficiently allege the employment relationship...

Excerpt: ...torneys' fee award.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) Once the lodestar has been calculated, the court “shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the [] award so that it is a reasonable figure.” (Id. at 1096.) “The determination of what constitutes reasonable attorney fees is committed to the discretion of t...

Excerpt: ... to tax costs is GRANTED in part, striking a total of $14,689.43. The Court finds the total allowable costs are $2,157.74. The plaintiff does not oppose taxing item Nos. 2, 8, 11, 12, and 14. Thus, they are STRICKEN. As to item No. 1, the Court STRIKES $210 on the ground the plaintiff posted jury fees after the defendant's 998 offer had expired and allows only $435. As to item No. 4, deposition costs, the Court STRIKES $2,815.81 and allows only $...

Excerpt: ...ing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032; Charton v. Harkey (2016) 247 Cal.App.4th 730, 737. The parties do not dispute that Plaintiff is the prevailing party. If the items in the cost bill appear on their face to be proper, the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper,...

Excerpt: ... distinguished, as in Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 502–503, so that a supplemental designation of Dr. Patel would be permitted, Plaintiff then failed to properly designate Dr. Patel in any event. Plaintiff attempted to supplementally designate Dr. Patel as a retained expert. (Keshmiri Decl. Ex. D.) However, where a treating physician is designated as a retained expert, all of the rules for a retained expert ap...

Excerpt: ...nt. 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 th...

Excerpt: ...c., dba “BSI Financial Services” to Plaintiff's Second Amended Complaint (‘2 ndAC”) are each SUSTAINED with leave to amend. (Code Civ. Proc. § 430.10(e)). The Demurrer to the First Cause of Action For Negligence is SUSTAINED on the grounds that the 2 ndAC fails to allege fact sufficient to create a duty of due care in favor of Plaintiff. (Nymark v. Heart Fed. Sav. & Loan Ass'n (1991) 231 Cal.App.3d 1089, 1100). The Demurrer to the Second...

Excerpt: ...aint on 8/8/18. The pleading is not properly labeled to indicate whether it is the first amended complaint or intended to be something else. In addition, the causes of action are not separately stated in compliance with Rule 2.112 of the California Rules of Court. The subject property at issue in the pleading is not identified or described. The plaintiffs allege that the property is located at SE Corner Carpenter and Second Ave, Carmel by the Sea...

Excerpt: ...t present admissible evidence with particularity. (CCP §§ 482.040, 484.030; Goldstein v. Barak Const. (2008) 164 Cal.App.4th 845, 853; Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1391; Bank of America v. Salinas Nissan, Inc. (1989) 207 Cal.App.3d 260, 272-74.) The MP has the burden of proving that there's an appropriate claim for the remedy to issue, and also, the probable validity of that claim. (CCP § 484...

Excerpt: ...of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably...

Excerpt: ...nges 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 the sufficiency of the complaint, a court will not consider facts t...

Excerpt: ...eritless, the court can properly overrule, and a reviewing court ignore, all of the objections on the ground that they constitute oppression of the opposing party and an imposition on the resources of the court”. Defendants' voluminous objections include several as to materiality and relevance that are meritless, and several as “repetitive”, which is not a proper basis for objecting. Triable issues of fact exist as follows: - whether Safeco...

Excerpt: ...lly to the twelfth and thirteenth causes of action of Plaintiffs Wendy A. Burgo and Devion N. Coleman's Complaint. Defendant Intermatic Incorporated demurs generally to the sixteenth, nineteenth, and twenty-second causes of action in Plaintiffs' Complaint. The demurrers are sustained without leave to amend. The twelfth, thirteenth, and sixteenth causes of action are for negligent infliction of emotional distress. The nineteenth cause of action is...

Excerpt: ...en shifts the Plaintiff establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. (Code Civ. Proc., § 437c, subd. (p)(2); Id. at 850–851.) In her First Amended Complaint, Plaintiff alleges that Defendant provided unsafe chairs at Haskett Public Library. Plaintiff also alleges that Defendant failed to keep the premises clean and safe by providing unsafe seating equipment. Prior to filing a cl...

Excerpt: ...h 4 of the deposition subpoena. With the exception of the term “work party”, which was subsequently adequately defined by Moving Party's counsel via email, the terms “photography”, “airplane”, “airport,” and “airplane flight” are not so vague and ambiguous such that Responding Party cannot properly respond. A party objecting to discovery as vague and ambiguous has the burden to show such vagueness or ambiguity and, in respondi...

Excerpt: ...urt will not enforce the PAGA waiver. This action is ordered stayed pending completion of the arbitration. The Case Management Conference set for today is ordered off calendar. A Post- Arbitration Review Hearing is set for August 23, 2019 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing. Defendant has shown that there exists a valid written agreement to arbitrate the individual claims asserted by plainti...

Excerpt: ...hould not be viewed as the basis of any contractual obligations of Hyundai.” The plain meaning of this term is that, with the exception of at-will employment, none of the terms contained in the handbook, including the arbitration provision, rise to the level of a binding contract. Even if the court were to find the language ambiguous, that ambiguity would have to be interpreted against Hyundai as it drafted the handbook. There are many ways an ...

Excerpt: ...tion is GRANTED in part at this time. As to the aspect of the motion seeking an order prohibiting Gulfstream Finance, Inc., Bruce Elieff, Kathy Elieff and WCR Development Company, LLC, or anyone acting on their behalf, from submitting a credit bit at the non-judicial foreclosure sale, that portion of the motion is GRANTED as an unopposed motion. No party other than Gulfstream, a competing junior lienholder, filed an opposition to the motion. Howe...

Excerpt: ...87, 1297 to 1298. The Cinel case is distinguishable as the arbitrators had already terminated the arbitration. Also, the resetting of trial simply followed the denial of the motion to confirm arbitration award by the court. The Roldan case is distinguishable as it addressed whether an arbitration could proceed when plaintiffs claimed a financial inability to pay fees relating to the arbitration forum. This was based on the public policy of provid...

Excerpt: ...hanges, deletions and additions shall be submitted as well. As to the Settlement: 1. The Court cannot locate in the file a proof of service of the settlement agreement on the LWDA. 2. There is insufficient evidence from which the Court can determine the GSF is fair, adequate and reasonable. The valuation provided by Attorney Hawkins is conclusory and lacks specific information as to the investigation and analysis performed, and the total maximum ...

Excerpt: ...he named plaintiffs. Defendants have failed to show, pursuant to CRC 2.550(d)(1), that their interest in keeping out of the public record the amount they have agreed to allocate to the individual plaintiffs in settlement of their individual claims overcomes the right of public access to the record. As a general rule, amounts paid in settlement are not confidential. See Copley Press, Inc. v. Superior Court(1998) 63 Cal. App. 4 th 367, 376 [“Howe...

Excerpt: ...rst Amended Complaint 5)Status Conference 1. Demurrer by Defendants Catlin Specialty Insurance Company and Catlin, LLC to First Amended Complaint The Demurrer by the Catlin Defendants is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the Sixth Cause of Action for Fraud and the Ninth Cause of Action for Breach of Contract. Catlin Specialty demurs to the Sixth Cause of Action for Fraud, and Catlin, LLC demurs to the Ninth Cause of Action for Breach of...

Excerpt: ...Defendant Ragland is to answer the Second Amended Complaint by March 1, 2019. The gravamen of Plaintiff's SAC is that Defendant violated the law when he issued to Plaintiff a medical marijuana recommendation without first performing a required medical examination and having a licensed physician sign off on the recommendation. Assuming Plaintiff's allegations are true, the foregoing alleged conduct would constitute violations of laws applicable to...

Excerpt: ...s to the second cause of action. First Cause of Action for Violation of Business & Professions Code § 17200 by way of violation of Business & Professions Code § 21713.5 Business and Professions Code section 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.4th 163, 180.) A UCL action is equitable in nature and da...

Excerpt: ...ve to amend. Patch's Request for Judicial Notice is denied. NVSI fails to adequately allege any misrepresentation of fact by Patch or how any representation of fact by Patch was false. Nor does NVSI adequately allege any unjust enrichment of Patch. Civil conspiracy is not an actionable cause of action on its own but requires an underlying civil wrong. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 510-11. NVSI does not...

Excerpt: .../1/19. BTC has alleged facts sufficient to constitute cause of actions for declaratory relief against WRW regarding whether BTC has continuing obligations under the Ground Lease. BTC alleges WRW's decision to terminate the Ground Lease as to the assignee, JVS, effects a termination of the Ground Lease as to BTC, and that the foreclosure of the Ground Lease by ARC Retail I extinguished BTC's continuing liability thereunder. (FACC ¶¶ 19-22, 24, 2...

Excerpt: ...o evidence to justify its objection based on undue burden or oppression. If Defendant GM LLC possesses any responsive, non-privileged documents, Defendant must produce them. Requests for Production Nos. 30-33 seek documents related to similar complaints and repairs relating to, as well as repurchases of, the 2015 Chevrolet Cruze. This is reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Defenda...

Excerpt: ...halter's Memorandum of Costs erroneously states in Attachment 16, line 2, that a total of $11,936.58 was incurred for the discovery referee, but the correct amount is $7,330.58 in light of a credit issued by the referee of $4,600. (Id., Ex. H.) Accordingly, the Court awards costs of suit to Buchalter in the amount of $282,545.24. Grounds for Denial of Motion In their motion to tax costs, Plaintiffs challenge Items 4 (Deposition Costs), 12 (Models...

Excerpt: ...010) 191 Cal.App.4th 53, 63.) The motion, however, is not intended to be used as a “procedural ‘line item veto' for the civil defendant.” (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682-83.) To plead a claim to recover punitive damages, a Plaintiff must allege specified facts showing malice, oppression, or fraud. (Civ. Code, § 3294(a).) While punitive damages can be available in a negligence action, causing an accident while un...

Excerpt: ...nsel. The cases share common questions of fact and law. Legal issues will recur and would consume additional trial and appellate court time if the litigation is not coordinated. In addition, there is a potential for inconsistent rulings on the same or related legal issues if the cases are not coordinated and appeals are presented to different appellate courts. Coordination of discovery will substantially reduce duplicative document and deposition...

Excerpt: ... of punitive damages. No allegations of “malice” or intent to injure plaintiff are required, because fraud is an alternative basis for recovery (“oppression, fraud or malice”). (Weil & Brown, Civil Procedure Before Trial, Chapter 6-B, Section 6:165, citing Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610 [“Civil Code section 3294 … treats ‘oppression, fraud, or malice' as separate bases for imposition of exemplary damages �...

Excerpt: ...to amend. (Code Civ. Proc. § 430.10,(e)). The Demurrers to the First, Second, Third, and Fourth Causes of Action in the 3 rdAC are SUSTAINED without leave on the basis that the 3 rdAC again fails to allege adequate facts to bring the subject loan within the statutory scheme supporting these causes of action. Even if the predicate facts were pled, Civ. Code § 2923.4, which states that nothing in the HBOR shall be interpreted to require a particu...

Excerpt: ...nt AAI conceded a joint employer relationship can exist and presented no argument or authority in support of its general demurrer. Rule 3.1113(b). Hence defendant AAI's general demurrer is overruled. As to the special demurrer, defendant AAI is clearly apprised that plaintiff Anderson is contending AAI is her joint employer. A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably ...

Excerpt: ...d it that a voluntary dismissal would not leave it liable for attorney's fees, and GXP has submitted Mr. Benneville's declaration attesting to his mistaken advice. “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shal...

Excerpt: ... upon giving notice in the manner provided in subdivision (b) of Section 1005. … … (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. (c) A determination by the court that the settlement was made in good faith shall bar any other join...

Excerpt: ...rt “no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” Code Civ. Proc. §2034.220. “The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.” Cod...

Excerpt: ... Court will continue the trial and any related dates for an appropriate period of time. Regardless of the presence of some delay by the Defendant in introducing the defenses into the case, the denial of leave to amend is too drastic an outcome here, where the prejudice can be remedied by the Court giving Plaintiff time to address the defenses. The equities weigh in favor of granting leave. The Court expects the parties to pursue their remaining d...

Excerpt: ...iser Foundation Health Plan, Inc., it is MOOT. A dismissal with prejudice was requested and entered as to it on March 21, 2018. The alternative motion for summary adjudication is defective for procedural reasons. Under subdivision (b) of CRC 3.1350, “[i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of ...

Excerpt: ...is evidence the harassment occurred on a “daily basis while [she] was at work.” (See Paragraph 7 of the Plaintiff's Declaration; Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 278-279.) The defendant relies heavily on evidence Plaintiff had pre- existing mental health issues. (See Separate Statement of Undisputed Facts Nos. 39-40.) However, evidence of pre- existing conditions does not establish, as a matter of law, a lack...

Excerpt: ...s granted. Due to Defendant's failure to serve responses to the interrogatories, Defendant has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . .” Cal. Civ. Proc. Code § 2030.290(a). Defendant shall provide responses, without objections, to Plaintiff's Special Interrogatories (Set...

Excerpt: ...t. Davis served the four sets of interrogatories by overnight mail on November 20, 2018. Responses were due December 24, 2018. The parties dispute whether OC Auto Expo Group and Husaini served timely responses. OC Auto Expo Group and Husaini maintain that they served timely responses. Plaintiff's counsel states in his declaration that he served the four sets of responses on December 24, 2018. Walton Decl. ¶¶ 7- 8. Plaintiffs have submitted a Pr...

Excerpt: ...ocess service, Mario Gomez, specifically states, “I have been unable to locate defendant [both Sami Fargo and Khelood Fargo in the respective declarations], therefore I have been unable to effect service. Fargo Opposition, Ex. 3. As neither Sami Fargo nor Khelood Fargo were served the deposition subpoenas pursuant to CCP § 1987(a), the motion to quash these subpoenas are Granted. The motion is Denied as to the subpoenas of Pamela Allen (“Pam...

Excerpt: ...ny and all documents and records pertaining to employment [of plaintiff Quiroz], including but not limited to, pre- employment applications, job evaluation and performance documentation, payroll and/or salary records, (including pay reviews and/or pay raises, weekly/quarterly/annual payroll records and W-2 forms (where applicable), attendance records, tax, union and benefit records, contracts, time sheets, time cards, attendance records and any a...

Excerpt: ...ve received the same reprimand, and that hers was worse because she was female. On 10/25/18, this Court granted defendant's motion for summary judgment. After reviewing all the evidence, this Court found in pertinent part as follows: “Plaintiff admits that she was an at-will employee, subject to immediate termination for violating [company policy]. Nonetheless, plaintiff contends that the decision to terminate her for violating company policy w...

Excerpt: ...d cause of action, it shall be prepared to discuss at the hearing what specific new facts it can allege to cure the defects in this cause of action. Defendant's request for judicial notice is granted as to the existence of the complaint in another action. Evid. Code § 452(d). Judicial notice is not necessary for the Court's own minute order. First Cause of Action for Violation of Civ. Code § 2923.55 Civil Code Section 2923.55 primarily requires...

Excerpt: ... Defendants to give notice. Defendant Crescent Moon is not a Proper Party to the Motion Defendant Crescent Moon Foundation Inc. joins in the motion. (See the Notice of Motion p. 1, Fears Dec. ¶ 1.) But this defendant did not serve or propound the discovery here. (See Moving Fears Decl. Ex. B, the RFPs, p. 1.) Under the Code (CCP §§ 2031.310(a) and 2031.010), it is the “demanding party” who can bring the motion to compel the further respons...

Excerpt: ...iff failed to allege whether the contract was oral, written or implied by conduct. Code Civ. Proc. § 430.10(g). Second, the claims for breach of contract and common count appear on the face of the Complaint to be time-barred. The Complaint alleges that the breach occurred between 10/8/12 to 3/15/13. The Complaint was not filed until 11/21/18, more than 5-1/2 years after the latest alleged date of breach. Thus, even under the four-year statute of...

Excerpt: ..., the Court declines to consider the reply papers. Plaintiff contends the petition is defective on procedural grounds. Relying on CCP section 1290.4, Plaintiff contends the petition was not properly served because it was served on her by mail and Panopio is not a party. CCP Section 1290.4(a) provides that a copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based ...

Excerpt: ...f Civil Procedure section 1281.2 must plead and prove (1) the existence of a written arbitration agreement and (2) that the other party has refused to arbitrate. (Code Civ. Proc., § 1281.2; Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640-641.) Plaintiff contends that Defendants have failed to meet their burden of establishing the existence of an arbitration agreement between the parties. Plaintiff argues that Defendants have only atta...

Excerpt: ...fendant attached the worksheet to its summary. In the worksheet, Defendant itemizes the dates and amounts of jury fees incurred, the deponents and the transcribing amounts for each, and the dates and amounts for court reporter fees. The prevailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032. To claim its costs, the prevailing party must file and serve a memorandum of costs within 15 days fro...

Excerpt: ...ch 31, 1997), and Bill's Sweeping Service, LLC. The Court strikes the November 5, 2018 entry of default. Defendant shall file his Answer and Cross-Complaint (which were previously rejected for filing by the clerk's office) within ten days. The Court denies the requested sanctions. Plaintiffs filed their Complaint in this case on 12/14/17. The Court sustained Defendant's Demurrer as to the entire Complaint and granted leave to amend. Plaintiffs fi...

Excerpt: ...he Court to set aside judgment under the discretionary basis of CCP § 473(b). Plaintiffs and their daughter actively participated in the mediation process with aid of a Spanish interpreter. Modarelli Decl. ¶¶ 5-15; Nunez Decl. ¶¶ 4-10. The interpreter also verbally translated the settlement agreement to Plaintiffs prior to Plaintiffs signing the agreement. Id. Although Plaintiffs' former attorney attests that Plaintiffs did ask about the aff...

Excerpt: ...s based on a forum selection clause in the promissory note at issue that identifies New York as the proper jurisdiction. California (and federal) courts presume the validity of forum-selection clauses. A party seeking to defeat such a clause bears the burden of proving that its enforcement would be unfair or unreasonable under the circumstances of the case. (See Miller-Leigh LLC v. Henson (2007) 152 Cal.App.4 th, 1143 1149; Richtek USA, Inc. v. u...

Excerpt: ...5.6 only applies to subpoenas. Pursuant to Code Civ. Proc., § 2031.310 (h), Plaintiff's request for sanctions is denied, because the circumstances make the imposition of sanctions unjust. Privacy: “'[C]ourts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.'. . . ‘In determining whether disclosure is required, the court must indulge in a ‘careful balancing' o...

Excerpt: ...apers do not comply with California Rule of Court 3.1350(b), the court must treat the motion solely as a motion for summary judgment. Under Code of Civil Procedure Section 437c(c), a summary judgment motion shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A plaintiff meets its burden on summary judgment by showing plaintiff has prov...

Excerpt: .... Defendants' Motion for Summary Adjudication is DENIED as to Issues Nos. 1 to 9. Issue No. 1: The First through Fifth Causes of Action have no merit because SCE was not injured in its dealings with the Sharifi Entities and Plaintiffs ratified or are estopped from complaining about distributions to Sharifi or his interests. Analysis: Bob failed to meet the burden to show SCE was no damaged. Ali disputed the accuracy of the Quickbooks accounting. ...

Excerpt: ...eply. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) However, the court observes that nothing in the supplemental exhibits would cause the court to reach a different conclusion as to the merits of this matter. First, Second, and Third Causes of Action Generally, there is a presumption that employment is at will. Lab. Code §2922 (“An employment, having no specified term, may be terminated at the will of either party on notice to the other...

Excerpt: ...has considered all of the papers submitted in connection with that application, but finds that reconsideration is not warranted here, and that even if the Court were to reconsider the prior ruling, it would reach the same result. Under C.C.P. § 1008, reconsideration may be sought based upon new or different facts, circumstances, or law. The moving party must also provide a satisfactory explanation for failing to produce such evidence for the hea...

Excerpt: ...ming that it has been appointed as a Referee pursuant to CCP section 638. This is not an appropriate subject for judicial notice. Defendants raise two grounds for their Motions: (1) collateral estoppel and (2) quasi-judicial immunity. The Court finds that collateral estoppel does not bar this action. Defendants have not shown an identical issue was litigated in the Carter v. Carter, 2015-00796360 (“the 2015 Action”). Accordingly, the demurrer...

Excerpt: ...claration in compliance with Code of Civil Procedure Section 435.5. Pursuant to Code of Civil Procedure Section 436 the court may strike out “any irrelevant, false, or improper matter inserted in any pleading.” The motion, however, is not intended to be used as a “procedural ‘line item veto' for the civil defendant.” (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682-83.) Punitive damages are available in actions “for breach ...

Excerpt: ...a notice designating record on appeal. Appellants sought to include in the reporter's transcripts two oral proceedings that were held before JAMS, rather than the Superior Court. On November 13, 2018, the clerk mailed out a “Notice of Inability to Provide Reporter's Transcript” (“Notice”) as to these two proceedings because the proceedings were not proceedings in the trial court and thus do not fall within the provisions of rule 8.130. (S...

Excerpt: ...t concedes that the Motions are now moot as to every request discussed in the Motions except those Requests for Production (“RFP”) relating to the text messages between Plaintiff and his wife. Specifically, Defendant argues that RFP Nos. 9, 16-19, and 36 are still in dispute and, therefore, each will be discussed below. RFP No. 9: All WRITINGS in the form of the written communications exchanged between YOU and Reno Carothers in the 30 days pr...

Excerpt: ...m the matters admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220”]; see also St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 782 [actual compliance not required where the proposed response is facially a good-faith effort to respond to requests...

Excerpt: ...show both: (1) relevant to the subject matter (e.g., how the information in the document 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. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) In the Motion, Defendant argues that “good cause exists for the production of the re...

Excerpt: .... However, there is nothing in the referenced paragraph that explicitly states the settlement agreement is deemed rescinded or is otherwise void if or when plaintiff files another FINRA action. Moving party's request for judicial notice is granted. Moving party to give notice. ...

Excerpt: ...stence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821. Plaintiff has alleged the existence of the contract in paragraph 13, plaintiff's performance in paragraph 14, defendants breach in paragraphs 15 and 16 and damages in paragraph 18. The second cause of action for rescission is properly...

Excerpt: ... prevailed on this claim, as Plaintiff's Summary Judgment motion was granted on August 13, 2018. Plaintiff is therefore entitled to its attorney fees. Plaintiff is awarded $17,334.50, consisting of all $16,787 requested by Plaintiff in addition to 1.5 hours for travel and appearance for hearing on this motion at $325 per hour and the $60 filing fee. Plaintiff to give notice. ...

Excerpt: ...that of the $221,471.00 in attorney's fees sought by Defendants, the sum of $173,617.50 was reasonably and necessarily incurred in this action. The court significantly reduced the fees sought by the Landay Roberts Firm on the grounds of overbilling and pervasive block billing, rendering the court's job difficult to impossible to determine the time spent on a number of entries. Defendants failed to meet their evidentiary burden as to the flat fee ...

Excerpt: ...19. Please submit clean and redlined copies of any changes to the Settlement Agreement and the proposed letter to aggrieved employees, and a revised Proposed Order. 1. What amount, if any, has been paid or will be paid to Plaintiffs individually either as part of the PAGA settlement or separately for the settlement of this action and for what purpose are/were such payments being made? Submit any individual settlement agreements entered into in co...

Excerpt: ...he shipping in the first place. While probably wishful thinking on the part cross-complainant (that it will ever be able to prove the necessary fraudulent intent) it is sufficient for the pleading stage. Defendant to file an answer to the first amended cross – complaint by 2/8/19. 2. Cross-defendant's motion to strike portions of the first amended cross-complaint. Motion granted in part and denied in part. The court grants the motion with respe...

Excerpt: ...IES Plaintiff's motion to consolidate this action with Lavelle vs. Nationstar Mortgage, OCSC Case No. 30- 2017-00917438. Defendant's RJN is GRANTED. The Court schedules a Status Conference for April 24, 2019 at 9:00 a.m., in Department CX-104. Plaintiff initiated this case as a wage and hour putative class action against Defendant Nationstar Mortgage, LLC, and WMIH Corp., on October 5, 2018. The matter initially was assigned to the Honorable Rand...

Excerpt: ...otion to Strike is MOOT. Defendants' Request for Judicial Notice is Granted. (Evid. Code § 452 (d), (h).) A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4 th 968, 994....

Excerpt: ...er to the 9th cause of action is overruled on each of the stated grounds. A. Standing Defendants argue that Plaintiffs lack standing to bring the 1st-8th causes of action because they do not allege any direct injury or interest. Plaintiffs argue that they have taxpayer standing to pursue all the claims alleged in the First Amended Complaint (“FAC”). Plaintiffs' 1st, 4th and 7th causes of action assert claims under §42 U.S.C. § 1983 based on...

Excerpt: ...189 Cal.App.3d 91, 94.) The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to Plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman(2011) 51 Cal.4th 811.) Here, the Complaint does not allege facts supporting the existence of a contract between Plaintiff O'Keefe and Defendant Brower. In fact, th...

Excerpt: ...s a change in the obligations of a party by a subsequent mutual agreement of the parties. . . . A contract in writing may be modified by a contract in writing. (Civ. Code, § 1698, subd. (a).)” West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 798. UMF 14: “On April 1, 2016, Adam Reifman, Director of Guest Experience at RMC, confirmed in writing that ‘Eric . . . said he is more than happy to extend the deadline out so you can ma...

Excerpt: ...th 15 days leave to amend. Code of Civil Procedure Section 1060 provides that: “Any person interested under . . . a contract . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross- complaint . . . for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the . . . co...

Excerpt: ... on the status of Plaintiff's application to the Fresno Superior Court for permission to file a petition for coordination, which Plaintiff represents will be heard on March 19. When Plaintiff initiated this action, there was already pending in Fresno Superior Court an action by another employee of Defendant seeking civil penalties under PAGA based on similar claims, including allegations that Defendant failed to comply with the Labor Code regardi...

Excerpt: ...mption, actually implied pre-emption, defendants have not carried their burden of establishing that the Legislature created a statutory scheme such that it intended to pre-empt the field. American Financial Services Ass'n v. City of Oakland (2005) 34 Cal.4 th1239, 1251 to 1255 [Predatory lending scheme, enforcement mechanisms, and defenses, so extensive in scope to demonstrate an intention by the Legislature to adopt a general scheme for regulati...

Excerpt: .... To state a cause of action for legal malpractice, Plaintiff must allege: (i) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (ii) a breach of that duty; (iii) a proximate causal connection between the breach and the resulting injury; and (iv) actual loss or damage resulting from the attorney's negligence. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179.) A...

Excerpt: ...]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 prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or...

Excerpt: ...he GSINDA Policy, is such coverage subject to a $1 million self- insured retention that applies at GSINDA's layer of coverage after exhaustion of the limits underlying GSINDA's policy? If so, does that self-insured retention apply to losses falling within Insuring Agreement B (excess)?” This case relates to various layers of insurance obtained by Defendant Lennar for its operations during the years 2004 to 2009. The first layer of insurance was...

Excerpt: ...aint that added new factual allegations and causes of action that were not present in the original complaint. Although the parties stipulated to its filing, and further stipulated that the filing would not preclude the Court from ruling on the pending motion for summary adjudication, case law mandates that the Court refrain from doing so. As stated by the court in State Compensation Insurance Fund v. Superior Court (2010) 184 Cal.App.4th 1124: Be...

Excerpt: ...�� from the trial court's order denying leave to amend. (Id. at p. 297.) Plaintiffs concede that they have delayed for two months in seeking leave to amend. (Reply at 3.) However, absent prejudice, delay is an insufficient basis to deny leave to amend. If the delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. It is an abuse of discretion to deny leave in such a case even...