Excerpt: ...rone, Conservator of the Estate. Responding Party Cross- Complainants Julie Sebestyen and Just Call Julie Super Service, Inc. Ruling Motion 1: Cross-Defendants' Demurrer to the Second Amended Cross- Complaint is OVERRULED. (Code Civ. Proc., § 430.10(e).) Third Cause of Action (Unlawful Business Practices Against Individual Cicerone). The demurrer to the third cause of action is overruled. Business & Professions Code Section 17200 prohibits “an...

Excerpt: ...ir shared general counsel and the Board of Education did not appoint Jeffrey Riel as the shared general counsel. The first cause of action in the complaint by the Board of Education is for injunctive relief under Code Civ. Proc. sections 526 and 527. A claim for injunctive relief requires: (1) a tort or other wrongful act constituting a cause of action; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actua...

Excerpt: ...d of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.) Plaintiff asserts that the Court's decision was based on an “incomplete consideration of the evidence.” (Mot. at pp. 5-10.) But, Plaintiff is simply disputing the Court'...

Excerpt: ...revised papers, including the class notice. The Settlement Agreement attached to the Declaration of Reuben D. Nathan does not reflect signatures, but only an electronic “/s/” for each signer. Plaintiff must submit a copy of the signature page with copies of actual signatures for the court's review. For final approval, the three plaintiff law firms presumably sharing in the attorneys' fees award must identify the proposed split of their attorn...

Excerpt: ...at hearing (which led to defendant serving supplemental responses) before deciding whether to file this motion. Defendant's request for monetary sanctions is denied. Defendant's argument that CCP §2030.090(c) precluded plaintiff from filing this motion pending defendant's Motion for Protective Order is not supported by the statute. The tentative ruling is to continue the hearing on Plaintiff's Motion to Compel Defendant's Further Response to Pla...

Excerpt: ...s to the deposition notice. (Nguyen Decl., at ¶ 6.) Defendant produced Maria DeSagun to testify as the PMK as to categories 3 [“ALL safety training that PLAINTIFF received from DEFENDANT.”] and 60 [“DEFENDANT'S policy concerning safety complaints, during the timeframe of PLAINTIFF'S employment.”]. DeSagun testified that she was the PMK as to categories 3 and 60, starting from mid-2014. From mid-2014 and before the person who had knowledg...

Excerpt: ...act, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attor...

Excerpt: ...h is consistent with the allegations in the operative pleading, the LWDA letters and the Settlement Agreement release of the PAGA claims. Dates of employment must be part of the definition. Dates for released claims also must be specified in the Settlement Agreement. Plaintiff must then confirm the number of aggrieved employees under that definition. The Gutierrez Declaration in ¶¶5-7 provides information that could lead to a calculation of the...

Excerpt: ...revised papers, including the class notice. Even though the Settlement Agreement provides in ¶34(d) on pp. 12-13 that “Settlement Class Members may also have a right to have their objections heard at the Final Approval/Settlement Fairness Hearing”, the Class Notice on p. 5 in §13 informs class members that written objections are required. The Class Notice must be amended to inform class members that either an objection may be in writing, or...

Excerpt: ...laint named defendant John Seidensticker as the responsible motorist. After learning that Behr was Seidensticker's employer at the time of the accident, Plaintiffs named Behr as Doe 1 defendant. After the court granted in part, and denied in part, Behr's motion to strike, but before Plaintiffs' filed the operative First Amended Complaint (“FAC”), Behr filed the instant motion. Although the Complaint to which the motion is directed is not the ...

Excerpt: ...rogatories and Requests for Production are GRANTED. The evidence submitted to the court shows that defendants received service of the discovery requests no later than 06/24/19 and have yet to serve any responses. All objections are thus waived, and defendants are ORDERED to serve verified responses, without objections, to the subject discovery within 15 days. Additionally, the court imposes monetary sanctions against each defendant in the amount ...

Excerpt: ...eged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1...

Excerpt: ...aintiff's Response to Statement of Undisputed Material Facts in Opposition to John and Natalia A. Leehey's Motion for Summary [sic], filed on 12-10-19, as they are procedurally improper. The Separate Statement is not evidence. Any objections to evidence must comply with California Rules of Court, Rule 3.1354. As to Defendants' Objections to Evidence Offered in Support of Plaintiff's Opposition to Motion for Summary Judgment, filed on 12-18-19, th...

Excerpt: ...Electronics Corp. (2008) 169 Cal.App.4th 116, 134; see also SAC, ¶8.) Plaintiff has still not alleged facts showing class action tolling, delayed discovery, equitable tolling/estoppel, repair doctrine, or fraudulent concealment. (See Am. Pipe & Const. Co. v. Utah (1974) 414 U.S. 538; Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808- 809; Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370, 373; Community Cause v. Boatwright (1981) 124 ...

Excerpt: ...Ratings LLC (June 13, 2019, G055429) [nonpub. opn.].) “[W]here a written contract expressly provides for the award of attorney fees, the prevailing party in an action under or relating to the contract is entitled to recover its fees, whether incurred at trial or on appeal.” (Starpoint Properties LLC v. Namar 201 (2011) Cal.App.4th 1101, 1111.) Motion for Attorney Fees (Enforcing Judgment) Cross-complainants attorney fees motion is granted. Cr...

Excerpt: ...ry sanctions to plaintiffs within 30 days of notice. (See Code Civ. Proc., §§ 2031.310, subd. (h).) Defense counsel is included in the sanctions order for its failure to meet and confer in good faith. (See Code Civ. Proc., § 2023.010, subd. (i); 2023.020; see also Morse Decl. ¶¶ 7-9.) Defense counsel asserts in a declaration: “Rather than narrow the scope of the requests at issue, Plaintiff flatly demanded that GM withdraw its objections a...

Excerpt: ...Wintec alleges Skyworks sold it Blackberry phone components for resale, despite knowing no resale market existed for the obsolete products. (See Van Niekerk decl., Ex. B ¶¶ 1, 6-8, 20-25.) While the cases may have overlapping witness lists, they arise out of different contracts and present different factual and legal issues. RTAO/Writ of Attachment Plaintiff Skyworks Solutions, Inc.'s application for a right to attach order and writ of attachme...

Excerpt: ... Court's ruling on this motion, the Court DECLINES to take judicial notice of them. Cross-Complainant Parkview Community Hospital Medical Center (“Parkview”) has filed evidentiary objections to both AmTrust's request for judicial notice and the declaration of Scott T. Melnik. The objections to the request for judicial notice are OVERRULED AS MOOT in light of the above. As to the objections to the Melnik Declaration, the Court OVERRULES Object...

Excerpt: ...2020. Named Defendants demur to each cause of action in the FAC on the grounds of uncertainty. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) As a result, “Where a demurrer is made upon this ground, it must distinctly specify exactly how or w...

Excerpt: ...action is time-barred. (Kreiger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213 [four-year statute of limitations under Cal. Comm. Code 2725 applies to claims under Song-Beverly Act]; Cal. Comm. Code 2725(2) [“breach of warranty occurs when tender of delivery is made”]; Complaint at Para. 9 [subject vehicle acquired 3-26-13].) Further, the complaint fails to adequately allege any basis for tolling the statute of limitations: �...

Excerpt: ...ency 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.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a Demurrer tests only the sufficiency of the Complaint, a court will not consider facts that have not been allege...

Excerpt: ... case shall be allowed to recover a sum equal to the aggregate amount of costs and expenses, “including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Code Civ. Proc., § 1794(d).) The plain wording of the statute requires the trial court to base the fee award on actual time expended on the case, as long ...

Excerpt: ...y. Should Plaintiff wish to pursue any claims relating to off-the-clock work on a class basis, he must file a second amended complaint, either by stipulation or with leave of the Court. Plaintiff's original putative class action complaint was filed on August 31, 2018. Plaintiff's counsel asserts that at Plaintiff's deposition on June 24, 2019, he learned for the first time that Defendant Southern California Discount Tire Co. allegedly required Pl...

Excerpt: ...der submission. A written decision on the writ petition will follow shortly. Reply Brief Issues The Court exercises its discretion to consider the City's and RPI's joint reply brief (ROA 95), which was filed on December 2, 2019 even though the briefing schedule for this motion (ROA 87) set a deadline of November 29, 2019. Although the reply was untimely, it was still filed 18 days in advance of the hearing, and Petitioner Residents of Westminster...

Excerpt: ...t and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. The class is estimated to have 250 members. How was the class size determined? If the number came from Defendant, did Plaintiffs or counsel make any effort to independently verify this number? 2. The escalator clause applies when the number of workweeks exceeds 7,506 by 10% or more. (Stipulation, § III.O....

Excerpt: ... 452, 458 [elements of breach of contract claim]; Plaintiff's Separate Statement, Fact Nos. 41-51 [existence of contract], 12- 29, 34, 51, 52 [performance or excuse for nonperformance], 34, 51, 55-66, 69 [breach], 12- 29, 34, 40, 50, 51, 69 [damages].) As moving plaintiff has met her initial burden, the burden then shifts to the defendant to present evidence sufficient to create a triable issue of material fact. (CCP 437c(b)(2), (p)(1).) Defendan...

Excerpt: ...ted by any evidence. While the court could grant the summary judgment motion given that opposing parties have not supported their arguments with any evidence that might create triable issues of fact, the court will provide plaintiffs with an opportunity to supplement their papers. The hearing on this matter is continued to January 31, 2020 at 1:30PM in CX 101 so that plaintiffs can, if they wish, supplement their papers appropriately. Any supplem...

Excerpt: ...ob, she accepted the arbitration agreement. In addition, she electronically signed the agreement. Full Agreement: In the moving papers, there was a clerical error, where the portions of the pages of the agreement were cut off. Upon notification of the defect, Defendants corrected it by filing a Notice of Errata on December 10, 2019. There is no showing that Plaintiff was prejudiced by the clerical error. The agreement had been sent to Plaintiff's...

Excerpt: ... demonstrated that plaintiff has refused to arbitrate (see Tahim Decl. ¶¶ 2-3, Exh. 1). Each independent contractor agreement contains a broad arbitration clause requiring binding arbitration of “any dispute [that] arises under th[e] agreement,” and further providing that the parties are “specifically ... agreeing to waive their right to a jury trial to resolve any disputes in this matter.” (Malkin Decl. ¶ 2, Exh. A, italics added; App...

Excerpt: ...270.) The consent of the parties to a contract must be communicated by each party to the other. (Civ. Code, § 1565, subd. (3).) “Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.” (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141.) “A p...

Excerpt: ...ement must be within the “reasonable range” (i.e., within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proce...

Excerpt: ...address and was sufficient. (Code Civ. Proc., § 1013, subd. (a).) He asserts that he did not receive the declarations or exhibits, that he had disclosed to the parties and the Court that his mailing address was no longer able to accept mail, and that he had filed a notice of change of address that only included a fax number and did not include a new mailing address. This assertion is inaccurate. Plaintiff filed a notice of change of address in G...

Excerpt: ...ition to compel arbitration is simply a suit in equity seeking specific performance of that contract. Little v. Pullman (2013) 219 Cal.App.4 th 558, 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, th...

Excerpt: ...al allegations set forth in the complaint “are deemed to be true, however improbable they may be.” (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action …. There is no need to require speci...

Excerpt: ...rally, violates public policy by allegedly offending the integrity of the legal system. For the following reasons, Plaintiffs' motion is denied. Plaintiff sued Jones Day and four of its current and former attorneys for legal malpractice and other claims related to legal work Defendants performed for Plaintiffs in an unlawful detainer action (the “UD Action”). At the time of the UD Action, Holladay and Lim were associate attorneys at Jones Day...

Excerpt: ...ntiff's statement that she did not appear due to a family emergency does not explain Plaintiff's failure to notify Defendants sooner nor does Plaintiff provide any explanation why she could not have returned in time for the long-scheduled medical examination. Plaintiff does not oppose Defendants' motion and states in her opposition that she will appear for the medical examination on or after December 11, 2019. Plaintiff Kennetha Moon is ordered t...

Excerpt: ... The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. Little v. Pullman (2013) 219 Cal.App.4 th 558, 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 necessar...

Excerpt: ... no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Cal. Civ. Proc. Code § 437c(p)(1). Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Id. In her second and third causes of action, Acevedo alleges that (i) Defe...

Excerpt: ...action "binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government." (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) As to the Settlement 1. Paragraph 4 of the Memorandum of ...

Excerpt: ...30, 636. Standing may arise from an attorney-client relationship between the moving party and targeted counsel or from a duty of confidentiality owed by the attorney to the moving party despite the absence of an attorney-client relationship. Id. at 636-37. The party seeking disqualification has the burden to establish the attorney-client relationship. Lynn, 15 Cal.App.5 th at 638; Koo v. Rubio's Restaurants, Inc. (2003) 109 Cal.App.4 th 719, 729....

Excerpt: ...ling), the Demurrer is SUSTAINED without leave to amend. Defendants argue Plaintiff cannot state a viable COA for breach of implied covenant of good faith and fair dealing because Plaintiff has not alleged facts showing his own performance or excuse for nonperformance. Plaintiff does not rebut this argument, thereby conceding the same. In addition, Plaintiff's COA is based on the allegation that the loan modification applications were improperly ...

Excerpt: ...ivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.' [Citation.] [¶] If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put ...

Excerpt: ...lect. 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 relief is made no more than six...

Excerpt: ...l Procedure section 2033.250, subdivision (a), provides, in part, “Within 30 days after service of the requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared . . . .” Code of Civil Procedure section 2033.260, subdivision (a), explains, “The party requesting admissions and the responding par...

Excerpt: ...urden, 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 objections to evidence that it deems material to its disposition to the motion.” Aguilar v. Atl...

Excerpt: ...t the complaint “arises from” defendant's constitutionally-protected free speech or petition activity. (Code Civ. Proc. §425.16(b); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) Once the defendant makes such prima facie showing, then the burden shifts to the plaintiff to establish a “probability” of prevailing o...

Excerpt: ...rately from other motions or requests and shall describe the specific alleged action or tactic, made in bad faith, that is frivolous or solely intended to cause unnecessary delay.” Code of Civil Procedure section 128.7, subdivision (c)(1), states, “A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b).” Since Cross-Defendan...

Excerpt: ...harm to the parties from issuance or nonissuance of the injunction. [Citation.]” “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, the less must be shown on the other to support an injunction. [Citation.] Of course, ‘[t]he scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at tria...

Excerpt: ...ufficiently established a probability of prevailing on the merits of its claims. This litigation arose following the default by Defendant American Life Capital, LLC (“ALC”) on a multi-million dollar loan secured loan made by Plaintiff to Defendant ALC in 2012. (See Complaint; see also Rivin Decl., ¶ 2.) Here, Plaintiff correctly notes this Court already found Plaintiff was likely to succeed on the merits of its claims when it granted Plainti...

Excerpt: ...ikely to mislead for want of communication of that fact” Civ. Code § 1710(3). “To state a claim for fraudulent concealment, a plaintiff must allege: “ ‘(1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.' ” In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pr...

Excerpt: ... causing the harm.” Ralphs Grocery Co. v. Victory Consultants, Inc., 17 Cal. App. 5th 245, 262, 225 Cal. Rptr. 3d 305, 317 (Ct. App. 2017), as modified (Nov. 6, 2017). Here, the Complaint is devoid of any facts supporting any of the elements of trespass, other than plaintiff La Floresta Regency, LLC's, (“Plaintiff”) ownership of the Village at La Floresta, located in Brea, California. Facts supporting a cause of action for trespass should i...

Excerpt: ...ead of filing and serving the opposition nine court days prior to the hearing (12/03/19), Plaintiff allegedly served the opposition five court days before the hearing (12/09/19) and filed it four court days before the hearing (12/10/19), both of which are improper. Id. Additionally, it was not properly served as Plaintiff states she was the serving agent, which, as a party to the lawsuit, is not permitted. CCP § 414.10. The proof of service stat...

Excerpt: ...the inducement is a subset of the tort of fraud. It ‘occurs when ‘ “the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294–295.) The Supreme Court has expressed, “An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff t...

Excerpt: ... truthfulness of the contents remain subject to dispute. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1374- 1376. Plaintiff's 23-page opposition violates subdivisions (d) and (g) of Rule 3.1113. Plaintiff did not ask for permission to file an oversized memorandum, nor did he explain why his argument could not be made within the 15-page limit. Thus, the Court exercises its discretion to consider only the first 15 pages....

Excerpt: ...s 998 Offer The Supreme Court has not expressed whether section 998 has an implied term that an offer must be reasonable and in good faith. (See Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 531 (“Assuming without deciding that … section 998 entails such a requirement, we conclude that the trial court did not abuse its discretion in awarding fees and costs”); and id. at 531 (“the City satisfied whatever g...

Excerpt: ...ntiff alleged that the City retaliated against him for making “oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative.” The cause of action merely alleged that City officials' negative comments created a “hostile work environment.” In a supermarket, a resident allegedl...

Excerpt: ...ded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 265.) But as to Exhibit 19, a court cannot take judicial notice of the truth of hearsay allegations just because they...

Excerpt: ...ers and (2) plaintiff's former and current employers. As such, plaintiff is seeking relief on two separate issues and is required to pay, at least, two separate filing fees, and has only filed one. Kashini Decl., at ¶7. The Court's order will not be effective until the additional filing fee is paid. Although a separate statement is required for this motion (CRC Rule 3.1345) and plaintiff failed to file any, the Court may exercise its discretion ...

Excerpt: ...hall or shall not operate as a general or special appearance.” (Slaybaugh v. Superior Court (1977) 70 Cal.App. 628, 632.) If a party seeks relief on any basis other than lack of personal jurisdiction, it is a general appearance. “One cannot alter by reservation the personal jurisdiction conferred by minimum contacts or consent.” (Szynalski v. Superior Court (2009) 172 Cal.App.4 th 1, 10.) CCP § 418.10 authorizes a motion to quash service s...

Excerpt: ...d to be open.” CRC Rule 2.550 (d) provides that “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing i...

Excerpt: ...h defendants from this action and dismissing the entire action with prejudice on the basis that Plaintiff's claims are barred by collateral estoppel / res judicata. Defendants should have raised their collateral estoppel argument in a demurrer, but the Court has discretion to treat this as a motion for judgment on the pleadings. (Pierson v. Sharp Memorial Hosp., Inc. (1989) 216 Cal.App.3d 340, 342-343.) Collateral estoppel applies to preclude rel...

Excerpt: ... (“FAC”). Notice, 2:12-5:3. Pursuant to CCP Section 436, the court may strike out “...any irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court.” Attorneys' fees generally are not recoverable unless specifically provided for by statute or subject to an express agreement between the parties. D'Amico ...

Excerpt: ...en guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code § 3294(c)(1).) In the SAC, Plaintiff adds several paragraphs including specific factual allegations which could support a finding of “despicable conduct that is carried on with a willful and conscious disregard of the ...

Excerpt: ...efendant's Exhibit B, The Certificate of Formation of Covenant Medical Center (“CMC”) filed with the Texas Secretary of State on September 19, 2017. However, Defendant has not provided a basis under which the court can judicially notice Covenant Health System's Medical Staff Bylaws on demurrer. The Request for Judicial Notice of the Bylaws is denied. Writ of Mandamus “When a hospital excludes or dismisses a doctor from staff privileges purs...

Excerpt: ...iff has opposed the motion on the merits and has not claimed any prejudice due to the untimeliness, the Court finds that the notice defect has been waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Plaintiff issued a “deposition subpoena for personal appearance and production of documents and things,” on October 28, 2019, and served the subpoena on nonparty Lawrence Zabaneh. The deponent appears to have been served as the purported c...

Excerpt: ...scovery at issue on September 11, 2019. Defendant telephoned and sent Plaintiff's counsel a meet and confer letter regarding the deficiencies in the responses on October 3, 2019. As of the time the motions were filed, Plaintiff had not responded to Defendant's meet and confer efforts. It was not until after the motions were filed, on November 19, 2019, that Plaintiff's counsel sent a letter and spoke with defense counsel on the phone about the is...

Excerpt: ...mpelling Plaintiff Jodi Ditolla to serve responses without objections to Defendant Syndimate LLC's Special Interrogatories, Set No. 1, evidentiary and issue preclusion sanctions if responses are not served within ten days, and imposition of $4,763.00 in monetary sanctions against Plaintiff. Motion No. 3: For issuance of an order compelling Plaintiff Jodi Ditolla to serve responses without objections to Defendant Sam Schapiro's Special Interrogato...

Excerpt: ...ted 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 that have not been alleged in the complaint ...

Excerpt: ...is denied and the City's motion is denied. A. Summary Adjudication As an initial matter, the Eppeldauer Defendants style their motion as a motion for summary judgment, but their Separate Statement identifies two “issues” for adjudication. To the extent the Eppeldauer Defendants intend to move for summary adjudication of these issues, the Eppeldauer Defendants' motion is denied because their Notice of Motion and Separate Statement do not compl...

Excerpt: ...ualify as alter egos. Before the Court this day is a defense motion by the three putative alter ego defendants (CFNFS, J&W and DJ) for summary judgment on the principal basis they are not alter egos of National Flooring. Plaintiff correctly notes that this is an “unusual motion” – but not for the reason proffered. It is unusual because most of the time plaintiff-creditors seek to add alter egos to an existing judgment by way of a noticed mo...

Excerpt: ...; 2) the de minimis defenses fail as a matter of law under Troester v. Starbucks Corp. (2018) 5 Cal.5th 829; and 3) Defendant failed to reimburse employees for necessary pens, pencils, and paper. These issues are addressed below. “When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion ‘only if it completely disposes' of the defense. [Citation] The plaintiff bears the initial burden to show ...

Excerpt: ... to modify the Note. However, he does not clarify whose offer it was. The fact that plaintiff signed the document indicates that he accepted an offer from Civic Financial Services, thus creating a binding written modification. See Riverside Rancho Corp. v. Cowan, 88 Cal.App.2d 197, 208 (1948). Additionally, the court notes that this cause of action is legally improper. Declaratory relief is inappropriate to “correct conduct that occurred in the...

Excerpt: ...time. However, the mediator did not “require” in person attendance. Rather, as shown in Exhibit C to the Hanle Dec., it was “strongly recommend[ed] that the principal parties” attend in person. Defendants also argue that the Plaintiffs' counsel promised that Plaintiffs would appear in person. However, the email exchange between counsel does not include either a specific request for in-person attendance or a specific representation that Pl...

Excerpt: ...s' attorney's fees and costs. As an initial matter, Code of Civil Procedure section 128.5(f)(1)(B) provides that a motion for sanctions based on the filing and service of a cross-complaint that can be withdrawn or appropriately corrected “shall not be filed . . . unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.” Cross-Defenda...

Excerpt: ...at made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Code Civ. Proc., § 1008(a).) “The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4t...

Excerpt: ...th cause of action for private nuisance, pursuant to Code of Civil Procedure section 1008(a), based on newly discovered facts. Defendant Plaza-Irvine Owners Association (the “Association”) has filed an opposition, and Defendants, John Warren, Karen Warren, Barbara Milbert and Allen Milbert have filed a Joinder to the opposition. Plaintiffs' motion for reconsideration is filed beyond the statutory 10-day limitation period for filing a motion f...

Excerpt: ...eks judicial notice of various trial court rulings in other unrelated cases on purportedly similar motions. Pursuant to Evid. C. § 452(d)(1), the court may take judicial notice of records of “any court of this state.” However, while the court may “judicially notice a variety of matters, only relevant material may be noticed.” Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4 th 556, 569. The orders submitted by moving party are irrelevant to...

Excerpt: ...r than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. The Settlement purports to settle Plaintiffs' PAGA claims against Defendant. However, no PAGA claims are asserted in this action. Further, the PAGA action brought by Plaintiff Juarez in San Bernardino County Superior Court (the “PAGA Action”) appears to have been dismissed. (Settlement, p. 1:26-27.) Do Plaintiffs intend to amen...

Excerpt: ...ered a verdict in favor of the two remaining Plaintiffs for $14,784,031.00 in favor of Claremont Toyota (R&C Motor Corporation) and $3,324,802.00 in favor of Capistrano Toyota (Hogan SRK, Inc.). Discounts of $474,972.00 and $1,848,004.00, respectively, were applied to the jury verdict awards based on Plaintiffs' own misconduct, resulting in net jury awards of $12,936.027 and $2,849,830.00 respectively. Moving Parties contend as follows: Plaintiff...

Excerpt: ...ces for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (CCP § 340.5.) The Supreme Court has provided guidance about the difference between professional negligence versus ordinary negligence by health care providers: “[W]e conclude that whether negligence in maintaining hospital equipment or premises qualifies as professional negligence depends on the nature of th...

Excerpt: ...se of Action for Breach of Fiduciary Duty “ ‘The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. [Citation.]' [Citation.]” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 646.) The Cross-Complaint alleges that “RAYMOND was responsible for the company's in-house accounting and bookkeeping and that in th...

Excerpt: ...emurrer 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 the sufficiency of the complaint, a court will not c...

Excerpt: ...egations 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 inferred from th...

Excerpt: ... yards. 3. Plaintiff is the prevailing party in this action and entitle to costs of $2334.01 and attorneys' fees of $122,187.00. 4. Interest on the above penalties and costs will accrue at the rate of 10% per annum from entry of the amended judgment. RELIEF SOUGHT: Plaintiff and judgment creditor applies to the court for an Order of Sale of the property at 12 Gondoliers Bluff, Newport Coast, CA 92657. Moving Party's CONTENTIONS: Plaintiff is tryi...

Excerpt: ...ntiff Pedro Guerrero dismissed his cause of action for loss of consortium, which means that the sole remaining cause of action is for medical negligence. KHO contends that it is not directly liable for any alleged negligence in the care and treatment of plaintiff because it is not a healthcare provider. It contends that it is a holding company that is incorporated in Delaware and has its principal place of business in Louisville, Kentucky. It con...

Excerpt: ...ve been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Robertson v. Fleetwood Travel Trailers of California, Inc. (Robertson) (2006) 144 Cal.App.4 th 785, 817- 818, states, “The plain wording of the statute requires the trial court to base the fee award upon actual time expended on the case, as long as such fees are reasonably incurred—both from the standpoint of time spent and the amou...

Excerpt: ...ant the motion and enter an order for reclassification only if both of the following conditions are satisfied: [¶] (1) The case is incorrectly classified. [¶] (2) The moving party shows good cause for not seeking reclassification earlier.” Walker v. Superior Court (1991) 53 Cal.3d 257, 270, states, “We conclude section 396 permits a superior court to transfer a matter if, during the course of litigation, it reasonably concludes that the ver...

Excerpt: ...ivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.' [Citation.] [¶] If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put ...

Excerpt: ... state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we no...

Excerpt: ... oath separately to each interrogatory by any of the following: [¶] (1) An answer containing the information sought to be discovered. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.260, subdivision (a), provides, in relevant part, “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded s...

Excerpt: ...of the documentation within five business days of receipt. In its initial acknowledgment of receipt of the loan modification application, the mortgage servicer shall include the following information: (1) A description of the loan modification process, including an estimate of when a decision on the loan modification will be made after a complete application has been submitted by the borrower and the length of time the borrower will have to consi...

Excerpt: ...utions in connection with a public issue,” and specifically constitutes “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. (Code Civ. Proc., § 425.16(e)(2).) Statements and writings made “in connection with” judicial proceedings are covered by section 425.16. (Briggs v. Eden Council for ...

Excerpt: ...atutes, case law, and facts, the Court will give a combined analysis. Defendant All Pro (“All Pro”) has failed to abide by the Court's 09/23/19 order to provide responses to sets one of Form Interrogatories and Requests for Production propounded by Plaintiff within 10-days of service of the Notice of Ruling (“Notice”) and to pay combined monetary sanctions in the amount of $1,121.25 within 60-days of service of the Notice. Additional sanc...

Excerpt: ...i v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487. While there does appear to be some delay by Plaintiff in conceiving of the theories of liability he now seeks to impose against the opposing party, Lowe's Home Centers, LLC (“Lowe's”), Lowe's would not suffer any “probable prejudice” if it is provided with adequate time to challenge the pleadings and conduct discovery on Plaintiff's proposed causes of action. Thus, Lowe's appear...

Excerpt: ...grant the present Motion. To the extent that this Court has the jurisdiction to grant the Motion under a different code section, Defendant's failure to cite to such a code section prohibits granting the Motion. In addition to not citing to a statute that permits the Court jurisdiction to grant the Motion, the Court finds that in reviewing the arguments by the parties, that it is not convinced the jury should have reached a different verdict or de...

Excerpt: ...to the sale of merchandise that was defective without indicating that the merchandise was defective. [FAC ¶ 20.] Plaintiff's allegations of the advertisement and his injury are without any facts specific to this action. [FAC ¶¶ 20-23.] Business and Professions code Section 17531 provides: “It is unlawful for any person, firm, or corporation ... to advertise, call attention to or give publicity to the sale of any merchandise, which merchandis...

Excerpt: ..., 8.7, 8.8, 10.1, 10.2, 10.3, 12.1, 12.2, 12.3, and 12.4 within 20 days of this ruling. Cross-Defendants' request for judicial notice is DENIED based on relevancy. In this instance, the other ruling has no precedential value. Each answer to an interrogatory must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to t...

Excerpt: ...bout the previous order by the Hon. Ronald L. Bauer. Code Civ. Proc. § 1008(b). Further, the supporting declarations by Defendants' attorneys show that default was entered as a result of their neglect, mistake or surprise. Plaintiff's counsel apparently informed Defendants' counsel that Defendants had been served, but defense counsel was not aware of, or did not receive, this email; and, as a result, failed to file answers on behalf of Defendant...

Excerpt: ...mma faced by a defendant who must choose between defending the civil litigation by providing testimony that may be incriminating on the one hand, and losing the case by asserting the constitutional right and remaining silent, on the other hand. At the same time, courts must also consider the interests of the plaintiff in civil litigation where the defendant is exposed to parallel criminal prosecution. Plaintiffs are entitled to an expeditious and...

Excerpt: ...overrules the Demurrer as to Plaintiff Jae Ho Kim (Ho). MEPC has 30 days leave to amend. The Court notes that it does not consider “supplemental” briefing that are submitted without leave of court. Thus, the Court has not considered Plaintiff's Supplemental Authority re Standing Issue in Opposition to Defendant's Demurrer to the First Amended Complaint. Notice of Errata The Court rejects the “Notice of Errata” directed to the First Amende...