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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ... (“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: ...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: ...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: ...nd make inconsistent allegations.” Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402. A complaint may plead inconsistent causes of action. . . . [U]nless the alternate pleadings contain antagonistic statements, the statement of facts sufficient to constitute a cause of action in one count is not a bar to the maintenance of a separately stated count in the same pleading based upon inconsistent allegations.” Steiner v. Rowley (...

Excerpt: ...74, 1384, the court held that “the American Motorcycle indemnity action and the plaintiff's tort action are not on the same cause of action. The identity of two causes of action is determined by a comparison of the facts alleged which show the nature of the invasion of plaintiff's primary right.” These were different causes of action. “[T]he analysis focuses on identifying a primary right of the plaintiff and the defendant's breach of a cor...

Excerpt: ...ith leave to amend, based on failure to state facts sufficient to constitute a cause of action. (CCP 430.10(e).) The complaint shows on its face that these claims are barred by workers' compensation exclusivity. (CA Labor Code 3600, 3601(a), 3602(a) [workers' compensation generally exclusive remedy]; Labor Code 3601(b) [no employer liability where “injury or death is proximately caused by the willful and unprovoked physical act of aggression of...

Excerpt: ...Plaintiff's unit, as such defendants knew Plaintiff was suffering yet failed to relocate her, failed to timely and properly treat, failed to abate the bed bug infestation, in acting in this manner Defendant intended to cause or at the very least with reckless disregard of the high probability that plaintiff would suffer emotional distress.” (Paragraph 130, page 22, lines 18-23). These allegations satisfy the requirement that Plaintiff allege De...

Excerpt: ... (a)(3) In the third cause of action, Plaintiffs alleged that Defendant failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. (Complaint, at ¶ 91.) Defendant contends Plaintiffs' claim fails to identify any facility relevant to Plaintiffs' claim or to allege “in even cursory fashion” what literature or replacement part...

Excerpt: ...ender if that person authorized the order or is otherwise bound by it under the law of agency. (b) If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if (i) the security procedure is a commercially...

Excerpt: ...laint and not judicially noticeable. Therefore, the court will not consider arguments based on the extrinsic purchase order on demurrer. The court denies Defendant's request to judicially notice Exhibit B, Plaintiff's Registration filed with the California Secretary of State, as irrelevant. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295, fn. 21.) The lack of registration does not appear relevant to any of Defendant's arguments...

Excerpt: ...auses of action is overruled. Special Demurrer for Uncertainty Ohr argues that the causes of action against him are uncertain. Ohr's special demurrer based on uncertainty is overruled. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and conf...

Excerpt: ...nal distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) “A defendant's conduct is said to be ‘outrageous' when it is so “ ‘ “extreme as to exceed all bounds of that usually tolerated in a civilized community.” ' ” [Citation.]” (Ibid.) And the defendant...

Excerpt: ...lid, doe not state sufficient facts to constitute a cause of action, and is uncertain, vague, and ambiguous. MCWE's notice and demurrer state that MCWE demurs pursuant to 430.10, but that section applies only to complaints and cross-complaints. Because Newport Harbor Offices & Marina, LLC, (“NHOM”) addresses the merits of a demurrer as if brought pursuant to the correct code section 430.20, NHOM waives any objections on proper notice. There a...

Excerpt: ...ling on the Motion for Joinder and, as necessary, the Motion to Stay. Motion for Joinder. The unopposed Motion by Defendants/Cross-Complainants/Cross-Defendants Genie Industries, Inc., and Terex Corporation (“Joining Parties”) to Join in the Motion for Stay of Proceedings filed by Defendants/Cross-Complainants/Cross-Defendants Golden Rain Foundation of Laguna Woods, Third Laguna Hills Mutual, United Laguna Woods Mutual is GRANTED. The motion ...

Excerpt: ...aims in connection with the foreclosure. Where a borrower moves to set aside a trustee's sale on the ground the sale is voidable due to irregularities in the sale notice or procedure, the borrower must offer to tender the full amount owed on the debt. (Kalnoki v. First Am. Trustee Servicing Solutions, LLC (2017) 5 Cal.App.5th 23, 47 (citing Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112).) Plaintiff alleges Defendants foreclosed when they ...

Excerpt: ...es that Lutsky and other defendants engaged in the “illegal unlicensed practice of dentistry, in violation of Business and Professions Code sections 1625(a) and (e), 1629, 1630, 1701.1, and 1807.” Long Form Master Complaint, ¶¶ 120- 121. Based on the allegations, Plaintiffs seek to recover damages, including punitive damages. Long Form Master Complaint, ¶¶ 122-127. The Tenth Cause of Action seeks a declaration as to whether Lutsky and oth...

Excerpt: ...ible retaliation or other detriment to plaintiff as the result of serving as the named plaintiff. The court concludes that the $161,571.43 class action settlement, as approved, is fair, adequate and reasonable, and approves the following specific awards: ● $53,857.14 to plaintiff's counsel for plaintiff's attorneys' fees, as requested; ● $8,797.52 to plaintiff's counsel for plaintiff's attorney costs, as requested; ● $2,500.00 to plaintiff ...

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: ...ed by absent members of the certified class. A court “may, in the furtherance of justice . . . allow a party to amend any pleading.” (CCP, § 473(a)(1).) “[C]ourts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.” (Magpali v. Farmers Group, Inc., 48 Cal.App.4th 471, 487.) Liberal amendment is particularly favored with respect to answers, �...

Excerpt: ...distinguished itself in this discovery dispute. EVIDENTIARY ISSUES The Court first notes that Defendant's opening papers are supported both by a Declaration of Ronald W. Novotny (ROA 72, filed 10/18/19) and an Amended Declaration of Ronald W. Novotny (ROA 76, filed 10/23/19). Although the title of the “Amended Declaration” suggests it simply corrects errors in the original declaration, the Amended Declaration includes a discussion of events t...

Excerpt: ...s settlement. However, Kirby v. Kindred, Case No. 5:19-cv-00833 is still active and might be impacted by this settlement. The First Amended Complaint in this matter alleges overtime, minimum wage, meal period, rest period, wage statement and waiting time penalties under both class and PAGA theories. The alleged classes include “all of Defendants' current and former non-exempt employees” who were subject to certain alleged violations, e.g. an ...

Excerpt: ...any revised papers, including the class notice. Since plaintiff asserts that he is unable to provide the estimated high and low payments to class members under the proposed settlement, he must provide those figures in his Motion for Final Approval. Those figures are needed to assist the court in properly determining the fairness of the proposed settlement to the class. Since the settlement calls for the employer's share of payroll taxes to come o...

Excerpt: ...nuary 22, 2020. If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions, and additions must be submitted as well. As noted below, the Court has concerns about apparent changes in the methodology and assumptions underlying the potential liability analysis that have occurred during the preliminary approval process. To the extent that post-settlement analyses result in significantly lower potentia...

Excerpt: ...nt bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not ...

Excerpt: ...laintiffs alleged that Dennis Xu had defrauded them, or whether a third party had defrauded them. Based on the revisions made by plaintiffs to the pleading, it appears to the court that plaintiffs' theory of liability against Dennis Xu sounds in negligence, and that their theory against Tri Pointe Connect sounds in respondeat superior. “Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees ca...

Excerpt: ...d. Plaintiff alleges she began her employment with the Art of Gifting, Inc. “doing business as Bellagio Spas and Salons” on September 8, 2012. (See ¶6 of Complaint). Thereafter, Plaintiff alleges she received less in compensation than was agreed to, within an Independent Stylist Agreement, which is attached as Exhibit A to the Complaint. (See ¶7 of Complaint). As noted by Defendants, the Agreement attached to the Complaint was executed sole...

Excerpt: ...rted representation. Plaintiff alleges Physician violated subsections (a)(5) and (a)(7) of section 1770. The gravamen of Plaintiff's claim is that he was harmed as a result of being discharged without receiving adequate warnings of the potential risks. Although Plaintiff now also alleges (in a somewhat conclusory manner) that he was harmed as a result of Defendants' statements that were intended to and did in fact induce Plaintiff to purchase med...

Excerpt: ...ses of action, sustained without leave to amend as to the 20th cause of action, and overruled as to the other causes of action. The motions to strike are denied. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) All factual allegations set forth in the complaint “are deemed to be true, however improbable they may be.”...

Excerpt: ...�prevailing party” is the party with a net monetary recovery or for whom judgment is entered, or the party who recovers “greater relief” on the contract claim. Code Civ. Proc. § 1032(a)(4); Civil Code § 1717(b)(1). Section 1033.5(b)(5)(B) expressly provides that attorneys' fees awarded pursuant to Civ. Code § 1717 are allowable costs. Section 1033.5(b)(5)(A) specifically provides that attorneys' fees allowable as costs may be awarded on ...

Excerpt: ...fault prove up hearing/bench trial, the court found in favor of plaintiff Balboa against defendants Ramian Estate, LLC dba Ramian Wines, Brian Graham and Ramian Wine (collectively “Defendants”) in the amount of $35,484.93, attorney's fees and post judgment interest to be determined. The lease agreement (“Lease”) upon which Balboa bases its suit includes an attorney's fee provision. See Lease, ¶ 13. As the prevailing party, plaintiff seek...

Excerpt: ...ce to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” The court's discretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Id. Plaintiffs seek to add Defendants Jason Godoy and Coldwell Bank...

Excerpt: ...d settlement agreement”, to avoid waste of limited Court time and resources. 1. The Release still references “this Action or in any other action or proceeding in this Court or any other Court or forum.” (See §14.1 of Amendment to Joint Stipulation: 5:24-25). The Court will only approve a Release which is limited to the facts alleged in this action. 2. Based on the Declaration provided by Counsel, the Court understands that PIFs will be nec...

Excerpt: ...for violation of B&P Code section 17200 and fourth cause of action for violation of HBOR are sustained without leave to amend. The Court grants Defendant's request for judicial notice of certain recorded documents, exhibits A through H. Evid. Code §§ 452(h), 453. However, in taking judicial notice, the Court does not take judicial notice “of the truth of the matters stated therein”; the truthfulness of the contents remain subject to dispute...

Excerpt: ... would have standing to bring the motion as to the Cross-Complaint, but that is what the notice of motion says. The motion could probably be denied on this ground alone—i.e., the wrong parties (the “plaintiffs”) are bringing the motion. The Cross-Complaint is equally confusing. It lists only one cross-defendant; i.e., “Jaswinder Singh Grover as Trustee of the Grover Family Trust dated March 22, 2004.” He is listed that way in the captio...

Excerpt: .... 1 is denied. Any incorporation by reference of matter in the court's file (in the present or any other action) “shall set forth with specificity the exact matter to which reference is being made and shall not incorporate the entire file.” [CCP § 437c(b)(7) (emphasis added).] It is therefore improper to ask the court to judicially notice any entire case file generally. The court grants JJW's Request for Judicial Notice of Ex. A and B. The c...

Excerpt: ...low, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Plaintiff argues that the Motion filed on September 26, 2019 is untimely because Reat Taste was served with the Summons and Complaint via substitute service on August 16, 2019, and based on the date of service, any motion to quash was required to be filed by September 25, 2019. Reat Taste contends t...

Excerpt: ...substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” The standard under subdivision (d) is more specific and rigorous than under subdivision (a) which applies to litigants who are over 70 years of age. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534.) Case law recognizes that section 36 “was enacted for the purpose of...

Excerpt: ... or law.” (See Moncharsh v. Heily & Blasé (1992) 3 Cal.4 th 1, 11). The California Supreme Court in Moncharsh acknowledged “a risk that the arbitrator will make a mistake,” but nonetheless asserted “by voluntarily submitting to arbitration, the parties have agreed to bear that risk in return for a quick, inexpensive, and conclusive resolution to their dispute.” (Id.). Judicial review of arbitration awards is limited to the grounds stat...

Excerpt: ... Inc. seeks the production of ten categories of documents. For the following reasons, Defendants' motion is denied. Defendants did not file a separate statement in support of their motion. California Rule of Court 3.1345(a) requires a separate statement for “[a]ny motion involving the content of a discovery request or the responses to such a request,” including a motion to quash the production of documents. Defendants did not address this arg...

Excerpt: ... Plaintiff Brian M. Sax's Motion to Compel Responses to Form Interrogatories (Set One) Plaintiff Brian M. Sax moves to compel responses to his Form Interrogatories (Set One) from Defendants Convergence Wireless, Inc., Timothy L. Hirou, Nora R. Hirou, Aaron T. Hirou, Hannah N. Hirou, Judy Hirou, Jacob Zepeda, Enrique Zepeda, Otilia Zepeda and Ana Zepeda Boddeker. For the following reasons, Plaintiff Brian M. Sax's unopposed motion is granted. Due ...

Excerpt: ... Lane, Huntington Beach, California 92649-1308. A “proof of delivery” filed with the court on November 27, 2019 purports to show service on Defendant Nicole Bermensolo by substitute service on Danielle Bermensolo, who is identified as “sister/occupant,” on October 22, 2019 at 6510 Ocean Crest Drive, Apt. 301, Rancho Palos Verdes, California 90275-5403. California Corporations Code § 17701.16 governs service on limited liability companies...

Excerpt: ...intiff has the initial burden of demonstrating, by a preponderance of the evidence, facts justifying the exercise of jurisdiction. Ziller Electronics Lab GmbH v. Superior Ct. (1988) 206 Cal.App.3d 1222, 1232-33; Sacramento Suncreek Apts., LLC v. Cambridge Advantaged Props. II, L.P. (2010) 187 Cal.App.4 th 1, 9. The plaintiff must do more than allege jurisdictional facts; the plaintiff must provide affidavits and other authenticated documents that...

Excerpt: ...ng Lee, and Hwang Sung Ja filed a notice of stay after Lee petitioned for Chapter 7 bankruptcy petition. The parties should be prepared to discuss whether the matter should proceed while the action is stayed as to Lee. Status Conference re Lee's bankruptcy is set for 1/17/20 at 8:30AM. The Court also notes that Plaintiffs only paid one filing fee. Plaintiffs shall pay an additional filing fee of $60 within 10 days. The Court further notes Plainti...

Excerpt: ...e documents under CCP § 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).) A motion to compel further responses to interrogatories must include a meet and confer declaration pursuant to CCP § 2016.040 and a separate statement. (CCP § 2030.300(b); Cal. Rules of Ct., Rule 3.1345.) Here, the evidence submitted demons...

Excerpt: .... Ex. 2 (4:21-22). Deposition Topic No. 2: Granted in part and denied in part. Defendant is ordered to produce a witness to address all Technical Service Bulletins, if any, applicable to the alleged defect(s) in the Subject Vehicle, including those superseded. Defendant has not provided any evidence substantiating its attorney-client privilege, attorney work product, or trade secret objections. Deposition Topic No. 3: Granted in part and denied i...

Excerpt: ...nt asserted causes of action for negligence, intentional tort, and fraud against California State Automobile Association and DOES 1‐50. On 2/19/2016, Judge Cadei found Gonzalez to be a vexatious litigant in Gonzalez v. Kitay, Sacramento Superior Court Case No. 34‐2012‐00134527. Because Gonzalez was declared a vexatious litigant, he was required to obtain a pre‐filing order from the Presiding Judge before filing an new action. (CCP §391.7...

Excerpt: ...t”) name was added to title as a result of some undisclosed fraud and deceit. Defendant then wrongfully moved into the property and took over the collection of rent from the existing tenants. Plaintiff contends that Defendant has no right to title or any other interest in the property. On 1/22/19, the parties attended a mandatory settlement conference. The matter settled and the 2/8/19 trial date was vacated. On 3/28/19, a proposed judgment on ...

Excerpt: ... Claire passed away in July 2012. Shortly before her death she resigned as trustee, and two of the settlors' children, Marianne and Gail, became the successor trustees of all three subtrusts, and Peter served as a third trustee for Trusts B and C.1 Disagreements between the siblings resulted in this trust proceeding2 and the appointments of Diane Davies (“Davies”) as the court‐appointed successor trustee for Trust A, and Jed Hazeltine (“H...

Excerpt: ...f Painted Cave Committee for Fire Agency Responsibility, Inc. (“Committee”) filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief against the Board of Directors of the Painted Cave Volunteer Fire Department, Inc. (“PCVFD, Inc.”) and the Board of Directors of the Painted Cave Volunteer Fire Department (“PCVFD”). The causes of action in the petition/complaint are: 1) Petition For Writ of Manda...

Excerpt: ... to Ira Smith and Tony Ordaz in exchange for $920,000.00. (the “First Loan”). On 11/26/12, Plaintiff and Don B. Clark signed a promissory note in favor of Ira Smith and Tony Ordaz for $50,000.00, to start being repaid on 1/1/18. (the “Second Loan”). With the passing of Don B. Clark, Defendant Linda Clark is alleged to be the beneficiary of both loans. Plaintiff also alleges that it was obligated to pay $442,670.52 in undisclosed liabiliti...

Excerpt: ...e'), and Live Oak, LP (‘Live Oak') are also a members of LOLS. Plaintiff VWC Lofts has at all times been managed by Vision Wise. Except for a brief period, Vision Wise is and has been managed by Sanford Coggins. Coggins was manager of Vision Wise at the time VWC Lofts filed its current complaint. Cathy (Mary) Aronson was named as a defendant in her capacity as principal of Live Oak.” (Motion P&As at p. 5.) “By her proposed amended answer, a...

Excerpt: ...e sale of real property. The Blandons sold a single‐family residence located at 9112 Durness Way in Sacramento, California (the “Property”) to Plaintiff Hyeon Do “David” Seo (“Plaintiff”). The Property was listed with Mr. Carrion, the Blandon's son and real estate agent. Prior to the sale, the Property was occupied and rented by the Blandon's other son, Francisco Blandon. After the close of escrow, Plaintiff alleged he found defects...

Excerpt: ...tain, and that the fraud claims were not pled with specificity. In this action, Plaintiff sued RCH for two causes of action, medical negligence and fraud. It should be noted that the first page of the Complaint has three causes of action for: 1. Medical Negligence; 2. Negligence; and 3. Fraud, but the body only alleges two causes of action. Plaintiff has not filed an opposition to this demurrer. Page 8 of 8 With respect to the negligence cause of...

Excerpt: ...acher who was employed by defendant AUHSD, during 2009-2011 while plaintiff was a middle school student. Both defendants have answered. On 1/10/19, the court granted defendant AUHSD's motion for summary adjudication as to the 3 rd C/A for sexual harassment. On 3/13/19, the court denied without prejudice plaintiff's motion for leave to file an amended complaint to substitute as defendant The David M. Bruce Family Trust, by and through the Trustee ...

Excerpt: ...ent facts relevant to this motion. Plaintiff Tseday Aberra alleged she was a senior psychologist for the California Institute for Women (CIW) in Corona (a division of the Department of Corrections and Rehabilitation of the State of California, or CDCR), and was discriminated against and did not receive a promotion because of the actions of other CIW employees. Plaintiff alleged that in August of 2016 she was being strongly considered for the posi...

Excerpt: ...Barbara Goldsmith (the Goldsmiths) filed their original complaint in this action for declaratory relief against defendants Milton Pinsky and Elizabeth Pinsky (the Pinskys). In their complaint, the Goldsmiths seek declaratory relief regarding their rights to restore a hedge of trees that they allege operated as a privacy screen to separate their property from their adjacent neighbors, the Pinskys. On August 2, 2019, the Pinskys filed their answer ...

Excerpt: ...S THIRD AMENDED COMPLAINT BY WEST COAST COMMONWEALTH PARTNERS LLC Tentative Ruling: The demurrer is overruled as to the second cause of action and sustained with 20 days leave to amend as to the first and fourth causes of action. The Motion to Strike is granted with 20 days leave to amend. Third Amended Complaint, Issues, and Contentions: The operative Third Amended Complaint (TAC) of September 9, 2019 asserts causes of action for: (1) Willful Mi...

Excerpt: ...ated in the Court's 12‐18‐18 and 7‐9‐19 Orders sustaining WF's Demurrers to the prior versions of the Complaint. Code Civ. Proc. § 430.10(e). The deficiencies identified in the Court's prior Orders relating to this cause of action have not been remedied. As did the FAC, the SAC alleges WF breached the parties' Deed of Trust (DOT), but does not identify any DOT provision that WF purportedly breached. It alleges ¶28 of the DOT permits Pla...

Excerpt: ...ndant defaulted on the account and failed to make payments as they became due and owing. (Id. at 3, 6, 8, 12, 15 and 17.) The last payment applied to the account was on or about November 24, 2017. (Id. at 7, 16.) The total amount due and owing is $11,669.91. (Id. at 3, 8, 12 and 17.) Plaintiff filed the underlying complaint on August 2, 2018 and asserts common count causes of action for account stated and open book account. On September 17, 2018,...

Excerpt: ...ibits 1 – 6, 8, and 12 In Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (overturned on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939 n. 13), the court stated it could “take judicial notice of the of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative l...

Excerpt: ...k by a vehicle while crossing Market Street in the City of Jurupa Valley (Defendant) after using the restroom at Defendant Adams Motorsport Park. Plaintiffs allege that Defendants caused a dangerous condition to exist for both motorists and pedestrians accessing Adams Motorsport Park. As a result, Plaintiffs filed their Complaint on 2/8/19 and First Amended Complaint (FAC) on 9/26/19 alleging causes of action for: (1) wrongful death, negligence; ...

Excerpt: ...; additional $25,000 “progress payment” due February 1, 2018; $725,000 “private note,” at 5% interest only for 60 months. (FAC at Ex. 1 and FAC at Ex. 1.) Although the original agreement included a “monthly payment” of $2,916.66, “due on the 1st of each month, with the first payment due on 10-01-2017;” Plaintiff's FAC contends that this monthly payment was subsequently changed by oral agreement of the parties to $3,020.83. (Ibid.)...

Excerpt: ...n for negligence and premises liability against Defendants. Plaintiff's FAC states that he was injured while riding his KTM 250 SXF bike (the “dirt bike”) along property owned, leased, occupied, or controlled by Union Pacific. (FAC, p.4.) Plaintiff alleges that on the property was a dangerous condition, namely an abandoned thick metal cable, secured to the ground on one end and hidden by heavy vegetation. (Ibid.) While Plaintiff was riding th...

Excerpt: ...e waived any error or irregularity with those notices. (Code Civ. Proc. § 2025.410(a).) Defendant has also failed to file, promptly or otherwise, a motion for a protective order permitting Defendant to refuse to produce any deponent for deposition. (See, Code Civ. Proc. § 2025.420(a).) Accordingly, Defendant must produce these employees for deposition. As to the person most knowledgeable, the Court overrules the objections regarding the product...

Excerpt: ...006, and divorced on December 5, 2017. As part of the divorce, Defendant obtained real property located at 180 Shortt Road (“Subject Property”). According to the Complaint, on November 9, 2017, Plaintiff was in lawful possession of the property but was forcibly removed after Defendant called the Santa Rosa Police Department indicating Plaintiff was a trespasser. Plaintiff was forcefully removed under threat of arrest. After moving back in, on...

Excerpt: ...the final payment to be made to PHI (contract sum remaining) is if the amount certified by the architect for the final payment. Under each of these contracts, the architect determined here that no amount is owed because of the deficient construction and, after adjusting for the offsets to correct the deficient construction, per the parties' written agreements, determined that PHI has an insufficient contract sum due and owing for the work it comp...

Excerpt: ...es liability, against the Greenes; and (3) strict liability for ultrahazardous activity, against all Defendants. The complaint arises out of serious injuries that Plaintiff sustained to her thumb while firing a crossbow owned by the Nankivells at a social gathering hosted by the Greenes at the Greenes' property. The Nankivells filed a motion for summary judgment on the grounds that Plaintiff is barred from recovery pursuant to the doctrine of pri...

Excerpt: ...ermines that the plaintiff has established that Page 2 of 3 there is a probability” that the claim will prevail. (Code Civ. Proc., § 425.16, subd. (b)(1).) In order to demonstrate a probability of prevailing on the merits, a plaintiff may not rely solely on its complaint but must also produce admissible evidence sufficient to overcome any privilege or defense that defendant has asserted. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323 [litigation...

Excerpt: ...st 20, 2019. Plaintiff alleges that on August 21, 2019, Defendant attempted to reset Plaintiff's account passwords for certain AVBI officers and managers. The next day, Plaintiff discovered that 84 of its email accounts were deleted. Plaintiff alleges that Defendant also interfered with its computer network such that it was forced to shut down company computers and phones. The complaint asserts causes of action for injunction, claim and delivery,...

Excerpt: ...e “wrong” parties, who did not own the Property at the time of the alleged incident. To the extent that Defendants seek relief under Code of Civil Procedure section 473(b) for mistake, in advertence, or excusable neglect, the motion is untimely. The court has inherent equitable power to set aside a judgment on the basis of extrinsic fraud or mistake. Olivera v. Grace (1942) 19 Cal.2d 570, 576. The moving party must show three elements: a meri...

Excerpt: ...udgment can be attacked “at any time.” (Code of Civ. Proc. Sect. 473, subd. (d); Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1250.) The evidence establishes that Defendant did not reside at the Menlo Park address when Plaintiff attempted substituted service. The USPS Request for Change of Address does not support service at the Menlo Park address, because Plaintiff's inquiry sought the new address related to a Post Office box; ...

Excerpt: ...tained Sohi's objection to the entire declaration of Kendra Whitley, D.D.S. (Plaintiff's subsequent treating dentist and expert) because the declaration was signed “under penalty of perjury under the laws of the state of Tennessee.” Additionally, Dr. Whitley's declaration lacked foundation since she failed to state that she is familiar with the standard of care for general dentist in Sacramento, or even California. (See 9/10/2019 Order.) The ...

Excerpt: ...pointment of himself as Director of Sacramento Progressive Communities, Inc. under Corporations Code section 5220(e). Corporations Code Section 5220(e) states that: "If a corporation has not issued memberships and (1) all the directors resign, die, or become incompetent, or (2) a corporation's initial directors have not been named in the articles and all incorporators resign, die, or become incompetent before the election of the initial directors...

Excerpt: ... defendants allegedly knew this. Plaintiff contracted multiple infections from the surgery and has become a paraplegic. The Second Amended Complaint contains causes of action for: medical negligence, corporate negligence, premises liability and fraudulent concealment. In June of 2018, the case of Burghardt v. Dennis was filed the same attorney for the plaintiff (2018-1000970). According to the operative complaint, Mr. Burghardt also had spinal su...

Excerpt: ..., it required 2 court days for the clerk's division to process these submissions alone. Apparently due to the volume of work and brevity of the timelines, Defendant Safeway has added 3 additional attorneys to their team through applications to appear pro hac vice. The Johnson & Johnson Defendants likewise seek to add 3 additional attorneys to their team pro hac vice. Plaintiffs' pleadings reflect that at least 4 attorneys are working to advance t...

Excerpt: ...dants' objections are OVERRULED. Plaintiffs explain that they delayed bringing the motion because they were trying to obtain sufficient evidence and conduct analysis of that evidence to allow them to oppose the anti-SLAPP motion without resorting to discovery. This is a reasonable argument. This case also turns not only on the conduct of Defendants towards Plaintiffs but their motivations and whether they have treated similar employees differentl...

Excerpt: ...h believe that the police department records may contain relevant information documenting the circumstances surrounding Vanessa's decision to end her life and subsequent suicide. Per defendant, the records may show whether she had a history of mental health issues, prior suicide attempts or instances of domestic abuse. The records may also contain information relating to whether she was treating with other physicians for any mental health issues ...

Excerpt: ...aint is granted. In this action Plaintiff alleges that he was employed by Golden Coast Construction & Restoration ("GCCR") as a fire restoration salesperson and that GCCR improperly deducted amounts from his commissions, failed to provide him commissions on certain jobs, and failed to provide him information to verify GCCR's commission totals. Plaintiff seeks further responses to Requests Nos. 7 ‐ 14, contending that Defendant failed to Comply ...

Excerpt: ... Best and Sean Best and their two minor children, plaintiffs Inez Best and Joaquin Best, formerly resided at 2828 Serena Road, Santa Barbara, California 93105 pursuant to a written lease agreement with defendant Steven J. Sherwin, individually and as Trustee of the Steven J. Sherwin Separate Property Trust, the owner of the property. The property is managed by defendant Meridian Group Real Estate Management, Inc. Starting in February 2018, plaint...

Excerpt: ...he Court finds that the subject requests are worded broadly enough to potentially call for the production of privileged materials, Defendant is nevertheless entitled to a Code-compliant response which provides sufficient factual information to allow Defendant to evaluate the merits any claims of privilege, including provision of a privilege log where necessary. The Court further finds that all responsive documents not subject to a claim of privil...

Excerpt: ...laim or dispute related to the vehicle and/or the RISC. Plaintiffs are permitted to select the American Arbitration Association (“AAA”) or any other arbitration organization subject to approval. Westlake now moves to compel arbitration to be heard before AAA. In opposition, Plaintiffs concede that a valid arbitration agreement exists. They insist, however, that the Court has no authority to grant the relief requested because Westlake failed t...

Excerpt: ...ect. Plaintiff asserts that Defendant has suffered no prejudice in the delayed responses to the RFAs as discovery is still ongoing between the parties, no depositions have been taken and no trial date has been set. The declaration of counsel accompanying the motion states the same. No explanation is given as to why no responses were provided to the RFAs within the statutory time, nor why Plaintiff failed to respond to the motion to have the admis...

Excerpt: ...ntiff alleges that Defendants' staff dropped Plaintiff during a transfer, causing a compound hip fracture, and failed to document the incident. Plaintiff's family has made the decision not to put Plaintiff through hip replacement surgery, and she is currently in hospice care. Plaintiff alleges that Defendants both were negligent and failed to provide contracted- for levels of care to Plaintiff. Plaintiff filed her complaint against Defendants San...

Excerpt: ...t makes perfect sense to preclude them from arguing that someone else is to blame. However, as made clear by the parties' filings, this motion is far broader than that and potentially affects much of the evidence at issue in this case. Accordingly, rather than rule on any particular evidence or argument, the Court sets forth some basic principles it will apply at trial. Evidence (and argument) that goes solely to the issues of Jeffries LLC's scie...

Excerpt: ... section 473.5, but provides no argument for this proposition. On the other hand, defendant cites to Stevenson v. Turner (1979) 94 Cal.App.3d 315 and Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, for the proposition that when the default is void, defendant can seek relief to set the default aside at any time. Defendant appears to argue the default is void on its face, in which case the motion may be made at any time. (Schwab, supra, 114 C...