Excerpt: ...lass members. (See ¶8 of Hernandez Declaration). This is an approximately 30% increase from the estimated class size of 350. (See ¶15 of Perez Declaration filed on 3/8/19). Please confirm via Declaration that, consistent with the terms of the Settlement Agreement, the Net Settlement Amount has been proportionally increased. (See §46 of Joint Stipulation of Class Action Settlement and Release). 2. Similarly, please confirm via Declaration that ...

Excerpt: ...proportionate liability.” See Toyota Motor Sales U.S.A., Inc. v. Sup. Ct., 220 Cal.App.3d 864, 871 (1990). However, even if the plaintiff's damages are potentially high, and a defendant's liability certain, “a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.” See County of Los Angeles v. Guerrero, 209 Cal.App.3d 1149, 1157 (1989). Here, Mr. ...

Excerpt: ...there is no dispute that plaintiff qualifies as a prevailing party overall, and with regard to the specific causes of action which carry a potential right to recover attorney fees (more on this below). Although plaintiff did not prevail on all eight causes of action asserted, she prevailed on a majority of her claims and secured a total award in her favor of $53,624.86. Defendants do not dispute that plaintiff qualifies as a prevailing party but ...

Excerpt: ...n under Code of Civil Procedure §430.41. (See Declaration of Craig J. Erickson.) 21st Cause of Action: Aiding and Abetting Breach of Fiduciary Duties Liberatore demurs to Plaintiffs Marcos Trujillo; Elizabeth Aguiar-Gutierrez; Vicky Garza and Darryl Vergolino-Holiday (collectively “Individual Plaintiffs”) 21st cause of action for aiding and abetting breach of fiduciary duties on the grounds the Individual Plaintiffs lack standing to assert t...

Excerpt: ... governmental agency denies a government tort claim the timely filing of anything other than the actual lawsuit renders the action time-barred. Orr is not helpful. In that case, the plaintiff filed a motion to preserve testimony and then, after the six months had run, filed the lawsuit. The appellate court reviewed the language of the statute and concluded that a motion to preserve testimony was not a “suit.” Here, on the other hand, the cros...

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

Excerpt: ...sed on a written instrument it must be attached); (2) a showing that the property is wrongfully detained by defendant, the manner in which the defendant came into possession of the property and the reason for detention according to the plaintiff's “best knowledge, information, and belief”; (3) description and value of the property; (4) “A statement, according to the best knowledge, information, and belief of the plaintiff, of the location o...

Excerpt: ...iffs; but the court consolidated them into one, so there is only one complaint) is based on two separate factual situations: The first and second causes of actions allege the plaintiffs were stalked and harassed by staffers of the Hertzberg campaign at the direction of the Hertzberg and Fukushima; and the third cause of action seeks damages because Fukushima filed a complaint against them with the FPPC and it was done with malice. The plaintiffs ...

Excerpt: ...status conference for a final accounting. Plaintiff shall submit a final report at least 10 days prior to that conference regarding the status of the settlement administration. Counsel should include a date for the final accounting in the proposed order. The final accounting should occur after the deadline for class members to cash their checks. The final report must include all information necessary for the Court to determine the total amount ac...

Excerpt: ...only available after trial. (See Code Civ. Proc., sec. 872.610 “The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.”) “The court in a partition matter must decide between sale or division of the property, which is the primary determination to be made at trial.” (Gray v. Superior Court (1997) 52 Cal. App. 4th 165, 171.) Here, no trial has occurred and Plaintiff contends no...

Excerpt: ...rsy” and is claiming anxiety, insomnia, and post-traumatic stress disorder as a result of the automobile accident that is the subject of her complaint. Defendant provides specific facts showing that its request to conduct a psychiatric examination is directly relevant to plaintiff's mental distress claims. Plaintiff is to submit to an independent psychiatric examination with Dr. James High within the next 30 days, as follows: Dr. James High, M....

Excerpt: ...tions on these exams, the Court DENIES, IN PART, as follows. As to Plaintiff's request that the location of the exams take place in Orange County, there is no legal authority for same. Rather, Code of Civil Procedure section 2032.220(a)(2) states an exam can be “conducted at a location within 75 miles of the residence of the examinee.” Here, Defendants produced evidence that both Dr. Gold and Dr. Henry's offices are located within 75 miles of...

Excerpt: ...rt finds there is no conflict based on Pltf's allegations which are pled on behalf of both her and Western Tap; The issues that Defts raise which would arguably result in a determination that there is a conflict of interest are based on the claims asserted in Pltf's federal complaint, which is not before this Court; Deny motion to disqualify; Leave to File 1 st Amended Complaint Pltf has failed to demonstrate diligence in moving for leave to amen...

Excerpt: ... fair and reasonable.” Id. at 2:4-6. Plaintiff's motion asserts (1) the award of damages was inadequate under CCP Section 657(5); (2) the evidence was insufficient to justify the verdict under CCP Section 657(6); and (3) the verdict is contrary to law under CCP Section 657(6). Plaintiff correctly points out that the jury found that (1) both Plaintiff Robert Snell (“Snell” or “Plaintiff”) and Defendant Lance L. Quinn (“Defendant” or�...

Excerpt: ...llegedly breached a Title insurance policy by failing to indemnify her when her neighbor “demolished the existing boundary wall and constructed a new fence 4 feet closer to [Plaintiff's] Property, thereby causing [Plaintiff] loss by depriving her of valuable property.” (FAC at ¶ 12.) Plaintiff submitted a claim to Defendant in September 2017, but Defendant “summarily denied the claim.” Plaintiff resubmitted the claim after she “was for...

Excerpt: ...ged 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 12...

Excerpt: ...age in each brief will be considered. CRC Rule 3.1113(g). As to the arguments, Defendant's Answer and the affirmative defenses contain a mix of both general and specific denials of the allegations in the Complaint, which is appropriate for an Answer pursuant to CCP § 431.30(b)(1). Those allegations are not appropriate for demurrer (Affirmative Defenses (“AD”) 1-6, 8-11, 13, and 16-19. AD 20-25 were not considered as Plaintiffs' Demurrer was ...

Excerpt: ...e review a ruling on a demurrer, we do not assume the truth of contentions or conclusions of fact or law, such as those contained in plaintiffs' pleadings. . .. ‘Facts, not conclusions, must be pleaded.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) In California, all liability against a public entity must be based on a statute creating liability. (Govt. Code §815; Searcy v. Hemet Unified School Dist. (198...

Excerpt: ...ligence” Plaintiffs may file and serve oppositions to the demurrers no later than 1/10/20. Defendants may file and serve replies in support of the demurrers no later than 1/17/20. The parties may file and serve replies regarding the OSC (originally due 8/29/19) no later than Motion for Attorney Fees Plaintiffs Bruce Ibbetson and Donna Warwick's motion for attorney fees is granted. Defendants William Grant, Jon Van Cleve, James Netzer, and Willi...

Excerpt: ...rial to consider. The court will, inter alia, take judicial notice of the records of the case. (Evid. Code § 452(d).) A motion cannot be granted, on the grounds made, “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.” (CCP §657; Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215-2...

Excerpt: ...t reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) Typically, this is done “through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855.) The evidence supporting summary judgment must be summarized in a specially formatted separate statement, which “must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, r...

Excerpt: ...lectively Plaintiffs”) on 8/22/18, and (b) on the First Amended Cross-Complaint (the “FAXC”) filed by Advance on 2/25/19. For the reasons discussed below, Advance's Motion is GRANTED IN PART. Summary adjudication in favor of Advance on Issues 1-3 is GRANTED, which results in judgment on the Complaint in favor of Advance, and renders Issue 4 moot. However, summary adjudication on Issues 5-9 is DENIED, as Advance has not met its burden on the...

Excerpt: ...� 801.) The court OVERRULES all of Plaintiff's objections in the Response to the Separate Statement 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. Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that o...

Excerpt: ...GRANTED. In reaching its decision, the Court applies the law of Utah with respect to the issue of successor liability in Plaintiffs' second cause of action. The laws of Utah and Delaware do not substantively differ from each other as to this particular issue, and therefore if the Court elected to apply the law of Delaware, the outcome would be the same. As both Utah and California have an interest in having their law applied, the question under t...

Excerpt: ...er seeks to compel arbitration: ‘[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving...

Excerpt: ...tronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. [¶] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” On 4-24-1...

Excerpt: ...s met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue...

Excerpt: ...e by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive deman...

Excerpt: ...aim. Equitable Tolling: Plaintiff's filing on the union grievance permits equitable tooling to delay filing the Complaint. “[I]f an employee voluntarily chooses to pursue the internal remedy, the time for filing charges with the DFEH or EEOC is equitably tolled: ‘[T]he exhaustion of administrative remedies will suspend the statute of limitations even though no statute makes it a condition of the right to sue.'” McDonald v. Antelope Valley C...

Excerpt: ...quash despite Basix Surfaces West, Inc.'s (“BSW”) failure to provide a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should be compelled. (Cal. R. Ct., rule 3.1345(a)(5).) Upon a motion reasonably made by a party, the court may quash, modify or direct compliance with a subpoena for production of documents. (Code Civ. Proc. § 1987.1, subd. (a), (b).) The court �...

Excerpt: ... of record, Dominque N. Westmoreland, jointly and severally, shall pay sanctions in the amount of $610.00 to D. Sieveke within 30 days of service of Notice of Ruling. If a party to whom interrogatories are directed fails to serve a timely response: (1) the party who has failed to provide a timely response waives any right to exercise his right to produce writings under section 2030.230; and (2) the party propounding the interrogatories may move f...

Excerpt: ...ll changes, deletions, and additions must be submitted as well. As to the Settlement: 1. Please provide proof of service of the settlement and supporting papers on the LWDA, and please provide a copy of Plaintiffs' letters to the LWDA so the Court may evaluate PAGA filing prerequisites. 2. Why is it necessary for the GSA to be funded in five installments instead of a single payment? The moving papers provide no explanation for why the settlement ...

Excerpt: ...ication. In Flatt v. Superior Court (1994) 9 Cal. 4th 275, the California Supreme Court held, “Courts and ethical codes alike prohibit an attorney from simultaneously representing two client adversaries, even where the substance of the representations are unrelated.” Id. at 285. The court added, “Indeed, in all but a few instances, the rule of disqualification in simultaneous representation cases is a per se or automatic one.” Id. at 284....

Excerpt: ...ecember 31, 2019. 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 to the Settlement: 1. The class period begins on July 16, 2014, but the underlying complaint was filed on August 1, 2018. Why does the class period extend more than four years before filing? 2. The class definition excludes plaintiffs in other pending wage-and-hour actions again...

Excerpt: ...ies Act. As one of the requested remedies, Plaintiffs seek public injunctive relief. Complaint, ¶¶ 2, 82, 84, 86, 89- 91 and Prayer for Relief. By its motion, Defendant seeks to compel arbitration of the claims pursuant to an arbitration provision included in the “Loan Agreement[s] and Promissory Note[s]” signed by the Plaintiffs. The arbitration provision (¶ 14 or ¶ 16, depending upon the year of the agreement) includes a class action wa...

Excerpt: ...icularly the case in the context of an unopposed motion for class certification where Mr. Thompson will serve as a class representative. Absent class members are entitled to know the terms of his individual settlement so they may evaluate potential objections to his adequacy as a representative Plaintiff. The Clerk is ordered to publicly file the unredacted version of the Kwak Declaration and all attachments. Furthermore, as discussed in more det...

Excerpt: ...uling denying defendants' prior Motion for Judgment on the Pleadings, within the meaning of CCP §1008. However, at the hearing the court modified its tentative ruling to note that defendants' original motion was for judgment on the pleadings as to the entire First Amended Complaint, not as to its separate causes of action. Since the 1st cause of action for the recovery of expense reimbursements was not subject to the outside salespersons exempti...

Excerpt: ...ction) Plaintiff alleges each of JC Ultimate, Rogers, and Divalentin converted money belonging to Plaintiff by taking money from Plaintiff's account for their own benefit. The elements of a conversion claim are (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1404...

Excerpt: ...entation or fraudulent omission in connection with the purchase or sale of a covered security. Nor does plaintiff allege that the fees defendants charged and/or caused plaintiff to incur drained plaintiff's investments. Plaintiff's First Cause of Action for Violation of the Consumer Legal Remedies Act alleges that defendants provided services within the meaning of the Act apart from providing software, including defendants providing spare change ...

Excerpt: ...constructive notice of the dangerous condition. Defendant's second ground for relief fails in the first instance because it does not address all of the material allegations of the complaint. (See Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889 [if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them]; see also Teselle v. McLoughlin (2009) 173 Cal.Ap...

Excerpt: ...matter with the reply should only be permitted in the exceptional case. . ." (Ibid.) This Court exercises its discretion and declines to consider the new evidence submitted by Defendant. In any event, Plaintiff himself pled that LegalShield received notices of levy from the IRS. (FAC, ¶ 7, p. 2.) Plaintiff admits he worked for Defendant because he alleges that he earned commissions. He believes he was an independent contractor: “(I am not an e...

Excerpt: ...sion included at the conclusion of its handbook. According to Defendant, the provision covers “any dispute or aspect of the terms and conditions.” (Emphasis added.) MPA at 1:8-10. The provision does not include that specific phrase. It reads, in full: “I agree that any dispute involving discharge that is left unresolved by the company and is covered under California's Fair Employment and Housing Act or Title VII of the Civil Rights Act of 1...

Excerpt: ...since November 1. Plaintiffs' and Defendants' motions to seal (respectively ROAs 284 and 360 [Plaintiffs], 276 and 352 [Defendants]) are GRANTED IN PART AND DENIED IN PART as set forth below. Except for documents the Court orders sealed below, the clerk is directed to publicly file the unredacted versions of the parties' summary judgment papers that were conditionally lodged with the Court. Standard for Sealing A court may order a record to be fi...

Excerpt: ...ty of solar PV roof panels as a mitigation measure for greenhouse gas emissions. Specifically, in May 2019, the Court of Appeal issued an opinion (See Protect Our Homes and Hills v. County of Orange (May 8, 2019, No. G055716) 2019 WL 2022564 (the “Opinion”)) directing this Court to rescind the order discharging the original peremptory writ and to modify the peremptory writ to address the RFEIR's analysis of the feasibility of rooftop solar ph...

Excerpt: ...ard applicable to decisions by State Personnel Board]; JKH Enterprises, Inc v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057 [defining substantial evidence].) SCIF cited eight grounds under Gov't Code 19572 for petitioner's dismissal: (1) incompetency; (2) inefficiency; (3) inexcusable neglect of duty; (4) insubordination; (5) dishonesty; (6) discourteous treatment of the public or other employees; (7); willful disobedience...

Excerpt: ... prevailing party must be (1) incurred by that party, whether or not paid; (2) ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation'; and (3) reasonable in amount.” Charton v. Harkey (2016) 247 Cal.App.4th 730, 739. Item No. 1—Filing and Motion Fees: $6,706.08. Plaintiff agreed to reduce the costs by $124.00. Code Civ. Proc., § 1033.5 (a) (1) provides that Filing, motion, and...

Excerpt: ...tion is GRANTED in the amount of $4,235. MOTION TO TAX COSTS Plaintiff, the prevailing party in this Song-Beverly Act action, filed a verified memorandum of costs seeking to recover a total of $46,886 in costs. (ROA 572.) Ford moves to tax $37,322 of this amount. I. Standard of Review The Song-Beverly Act allows a prevailing plaintiff to recover “the aggregate amount of costs and expenses . . . determined by the court to have been reasonably in...

Excerpt: ...l on this motion, that all three plaintiffs reside out of state or are foreign corporations, and that there is a reasonable possibility that defendant will obtain judgment in this action. However, defendant has failed to provide an affidavit that sets forth the nature and amount of the costs and attorneys' fees defendant has incurred and expects to incur by the conclusion of the action. Defendant's Memorandum of Points and Authorities cites Monks...

Excerpt: ...uash. Plaintiff also argues that Defendant did not meet and confer prior to filing this motion. While a motion to enforce a subpoena over a consumer's objections requires prior meet and confer efforts, it does not appear that a consumer's motion to quash does. (Code Civ. Proc. § 1985.3(g).) The subpoena seeks the following two categories of documents from Citibank and Financial Partners Credit Union: 1) Any and all documents, inclusive of cashed...

Excerpt: ...tervenor shall give notice of the ruling. DEMURRER BY ESTHER ANDREWS The demurrer by Plaintiff/Cross-Defendant Esther Z. Andrews (“Ms. Andrews”) is sustained in part and overruled in part. The demurrer is overruled with respect to Defendant/Cross- Complainant Eric Hess' (“Mr. Hess”) first cause of action. The demurrer as to the second through fourth causes of action is sustained with 15 days leave to amend. The Court grants Ms. Andrews' r...

Excerpt: ...rge batch of documents produced on March 20, 2019 and clawed back late on March 21, 2019, the night before the Jacks deposition. Moriarty used the document the following day at the deposition. Then, in August at the deposition of Jay Lutsky, Moriarty used a different privileged document. That document had been included in a production made many months earlier. However, Defendants hadn't identified it as privileged or requested its return until it...

Excerpt: ...um 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.” Cal. Civ. Code § 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 as such fees are reasonably incurred – ...

Excerpt: ...able under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.) A special demurrer for uncertainty is strictly construed, even where a com...

Excerpt: ...t to the extent that it contends that it cannot be vicariously liable for any defects in the vehicle caused by another. Subdivision (a) of section 30106 provides: “An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or ...

Excerpt: ...ays after the conference. The conference is not meant to substitute for any future meet and confer that will be required under § 430.41(a), if there is another demurrer to the next pleading. Defendants are to give notice. Uncertainty There is some uncertainty about whether Plaintiff Touraj is alleging a direct-victim or bystander theory of negligence, as the facts implicate both potentially. Therefore, the next pleading should be clear by includ...

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

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

Excerpt: ...o consider, it is not the sole test of the existence of a fiduciary relationship, otherwise, attorneys would not have fiduciary duties to their clients, except where they are holding clients' funds. “A fiduciary relationship is created where a person reposes trust and confidence in another and the person in whom such confidence is reposed obtains control over the other person's affairs.” (Lynch v. Cruttenden & Co. (1993) 18 Cal.App.4th 802, 8...

Excerpt: ...ed excision and treatment of Plaintiff's plantar warts, among other things, thus necessitating multiple additional treatments and surgeries, as well as additional hospitalizations.” (Complaint, ¶ 6.) Defendants contend that they not only complied with the standard of care in treating Plaintiff, but that the cause of action is time-barred under Code Civ. Proc. § 340.6. Defendants submit the declaration of Philip Radovic, D.P.M., who is board c...

Excerpt: ... (concealment), respectively, in Plaintiff's TAC, which are the subject of Defendants' SLAPP motion, as well as the alter ego status of Defendants. Plaintiff contends Plaintiff previously attempted to take the depositions of Cook and Kohn, but Defendants objected and did not appear, in line with Defendants' history of stonewalling discovery. Plaintiff contends this is just another stall tactic by Defendants. In opposition, Defendants contend disc...

Excerpt: ... requirements contained in CCP §1005(b). Pursuant to California Rules of Court, Rule 3.1324, the moving party must: a) Specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and b) Include with the moving papers:  a copy of the proposed amended pleading; and  a declaration specifying: (1) the effect of the amendment(s); (2) why the amendment is necessary and proper; (3) when th...

Excerpt: ... may include, but is not limited to, a direction that “a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.” Id. § 2031.060(b)(5). Plaintiffs seek a blanket protective order governing documents and information to be produced in discovery in this case. Plaintiffs argue that Defendant's discovery requests seek commercially-s...

Excerpt: ...Sunbelt. The court finds the deponent to be an apex employee and Plaintiffs have not met their burden at this time to show that he has unique or superior personal knowledge of discoverable information. (Liberty Mut. Ins. Co. v Superior Court (1992) 10 CA4th 1282, 1289). DEF/XComplainant/XDEF JLG Industries, Inc. 2. Motion for Summary Judgment and/or Adjudication Defendant JLG Industries, Inc.'s motion for summary judgment or adjudication on the f...

Excerpt: ...wo females, and then slapped one of them on her bottom. Nobody was amused. Several students complained, prompting Bassinne to ramp up his shenanigans by actively intimating students who he viewed as potentially adverse witnesses. Defendant district investigated, and found all the allegations (sexually abuse and subsequent intimidation) credible. The Orange County District Attorney also investigated, and secured from Bassinne a guilty plea to a fe...

Excerpt: ...12, 16-33, 35, 36, 38, 40, 42, 44-46 and OVERRULED as to Nos. 7, 11, 13-15, 34, 37, 39, 41, and 43. A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4 th 826, 850.) Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “ca...

Excerpt: ... at ¶8. Additionally, Plaintiff does not dispute that both defendants may seek to enforce the arbitration agreement. Thus, the burden shifts to Plaintiff to demonstrate the arbitration agreement is not enforceable. (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Plaintiff argues that the arbitration provision in this case is not enforceable because it fails to meet the additional procedural requirements for unwa...

Excerpt: ..., or any other official proceeding authorized by law, (e)(2) 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…” (CCP § 425.16(a); Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) The Defendant must show that the activity giving rise to his asserted liabi...

Excerpt: ...y valid; (3) the attachment is not sought for any purpose other than securing the creditor's claim; and (4) the amount to be secured by the attachment is greater than zero. (Code Civ. Proc., § 484.090.) Nor has Plaintiff demonstrated that the claim arises out of conduct of trade, business, or profession of Defendants. (Code Civ. Proc. § 483.010, subd. (c).) The Court finds Defendants' evidentiary objections to be well-founded again. This is bec...

Excerpt: ...on, and requests for production; 3. An order compelling defendant/cross-complainant TDR, Inc. to provide responses to its first sets of form interrogatories, form interrogatories–construction litigation, and requests for production; 4. An order deeming the matters in its first set of requests for admission to defendant Ysali Pockman admitted; 5. An order deeming the matters in its first set of requests for admission to defendant Kenneth Shank a...

Excerpt: ...pt. 2003, Saba and Grantham formed a joint venture with Robert E. Zuckerman to develop residential units on the property. Zuckerman formed San Jacinto Z, LLC (“SJZ”) to handle the development. In December 2003, SJZ acquired the property from Saba and Grantham, after which ensued a series of lawsuits. Attorneys Saba and Grantham agreed to provide SJZ with legal services to resolve title and lien issues concerning SJZ's property. According to S...

Excerpt: ...h and Technology, a business entity, form unknown; (5) Boeing Test and Engineering, a business entity, form unknown; (6) Enterprise Core Organization, a business entity, form unknown; (7) Gregory Gracey; (8) Heidi Capozzi; (9) Jeffrey Recktenwald; (10) Peter Rosenbloom; (11) Chris Roshak; (12) Phillip Downs; (13) Richard Harwin; (14) Steve Glogoza; (15) Amy Bartram; (16) Gina Kim; (17) Erica Maloney; (18) Joann Urtula. Plaintiff's complaint alleg...

Excerpt: ...peated, verbatim, in the separate statement of undisputed material facts.” (Calif. Rules Court, rule 3.1350, subd. (b)). Defendant Crocs, Inc.'s separate statement fails to comply with these requirements, lumping all of the undisputed facts into a single list and making no reference to the two issues noticed for summary adjudication (i.e. the 2 nd & 3rd Causes of Action). Additionally, the separate statement includes photographs, which are evid...

Excerpt: ...en a reasonable time to correct the deficiency, and [4] resulting damages.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297. Although Plaintiff alleged that she complained about the bed bugs, she failed to allege that Defendant was given a reasonable time to correct the problem. The pleading should be amended to complete these allegations. Sixth Cause of Action for Battery. “The essential elements of a cause of action ...

Excerpt: ...Cal.3d 311, 318.) A Demurrer may be based on, among other grounds, failure to state sufficient facts to constitute a cause of action, uncertainty, and misjoinder. (Code Civ. Proc., § 430.10, subds. (d), (e), (f).) The examination of the complaint is “guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it doe...

Excerpt: ...ated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 839- 840 [examples of possible factors supporting unity of interest].) Both defendants' demurrer to the first cause of action for promissory fraud is sustained, with leave to amend, as this cause of action fails to allege the purported representations with the required specificity. (Complaint, Para. 20; Lazar v. Superior Court (1996) 12 Cal.4 th 631, 645 [fraud must be pled with pa...

Excerpt: ...subdivision (a) provides that: “In any action on a contract, 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 ad...

Excerpt: ... 1366, 1375. Defendant's Objections to the Declaration of Aparajit Bhowmik are sustained. A Motion for Judgment on the Pleadings must be based on matters that appear on the face of the challenged pleading or that the court must judicially notice. CCP §438(d). Here, however, the court cannot establish through plaintiff's First Amended Complaint and/or defendant's judicially-noticeable documents that plaintiff did not opt out of the settlement in ...

Excerpt: ...erior Court No. RIC10014774 (Curry), on the grounds that the plaintiff in the first-filed Curry matter sought to certify the same class as Plaintiff here. Summary judgment was entered in Equilon's favor in the Curry matter, and on April 26, 2018, the Court of Appeal affirmed in a published opinion. (23 Cal.App.5th 289.) Following the Court of Appeal's decision in Curry, the Court lifted the stay in this matter. Plaintiff and Equilon then agreed t...

Excerpt: ...all “set[] forth plainly and concisely all material facts that the moving party contends are undisputed.” CRC 3.1350, subdivision (d)(3) requires that a Separate Statement of Undisputed Material Facts be in a two-column format that states each undisputed material fact in the first column, followed by the evidence that establishes those undisputed facts in that same column. Citation to that supporting evidence must include reference to the exh...

Excerpt: ... party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc., § 473, subd. (a)(1).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd...

Excerpt: ...1-800”). Defendant Marc Lazo sold the property on 1-800's behalf. Plaintiff alleges he did so without permission or authority. Sunset Escrow was the escrow company on the sale. Defendant Shirley Thompson owned Sunset Escrow and Defendant Jessica Sarpong was her assistant on the sale. At some time prior to the sale, Lazo, an attorney, represented Sunset Escrow and a small amount remained on unpaid for legal services. 1-800 alleges that because o...

Excerpt: ...tes “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” Standing: Plaintiffs filed objection to ...

Excerpt: ...4th 1109, 1124.) The Court bases this ruling on the papers filed by the parties with respect to the original August 16, 2019 hearing date and the continued hearing date of October 4, 2019. Plaintiff's October 30, 2019 reply was not timely filed pursuant to CCP § 1005(b) and therefore is not considered by the Court in its ruling. Likewise with respect to Defendant's sur-reply. That being said, this ruling does not preclude Plaintiff from renotici...

Excerpt: ...��any incident, injury or emergency” occurring at the museum. Defendant agreed to produce responsive documents limited to those relating to choking injuries. In moving to compel a further response, Plaintiffs argue that evidence of similar accidents or injuries is relevant to prove: (1) the existence of a defective or dangerous condition; (2) the cause of the subject accident; (3) knowledge/notice of the condition; and (4) negligence in permitt...

Excerpt: ... Temenoujka Marinov, Maria Martinez, and Rosa Islas as time-barred under CCP § 583.360 (5-year statute). As a preliminary matter, the Court takes judicial notice of the pleadings attached to the Declaration of Simren K. Gill. The motion is opposed only by Casas. Pursuant to CCP § 583.340, a case which has not been brought to trial within five years of its filing must be dismissed. The statute dictates that the five-year period is tolled during ...

Excerpt: ...rock Low Volatility (Master) Fund, Ltd.'s Motion for Summary Judgment, or in the Alternative, Summary Adjudication, By Plaintiffs DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION Defendants Jefferies LLC and Jefferies International Limited (“JIL”)'s motion for summary judgment, or in the alternative summary adjudication, on the amended complaint of Plaintiffs Rimrock High Income Plus (Master) Fund, Ltd. and Rimrock Low Volatility ...

Excerpt: ...ntered a verdict in Plaintiff's favor in this trade secret dispute, Defendants prevailed on a motion for judgment notwithstanding the verdict. Defendants now seek to recover their costs both (1) as a prevailing party under CCP § 1032, and (2) as a prevailing party under the terms of a 2006 nondisclosure agreement, governed by Oregon law, which allows for the recovery of “reasonable . . . costs incurred in resolving or settling the dispute.” ...

Excerpt: ... the merits of Plaintiffs' motion for reconsideration and motion to vacate and denied Plaintiffs' motion. (See ROA 303 [Minute Order].) A motion for reconsideration must be filed within 10 days of service on him of notice of entry of the order in question. (Code Civ. Proc., § 1008, subd. (a).) As provided in section 1013, the five-day extension of time for mail service applies in the absence of a specific exception. (Code Civ. Proc., § 1013, su...

Excerpt: ...and a mandatory relief component and provides, in relevant part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.... Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than...

Excerpt: ... waived its right to compel arbitration. Significant delay alone does not constitute waiver and waiver will only be found when the moving party has taken substantial advantage of the judicial process or engaged in bad faith. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4 th 348, 3760377; Khalatian v. Prime Time Shuttle , Inc. (2015) 237 Cal.App.4 th 651. Although there has been some delay in bringing this motion, there is no evid...

Excerpt: ...as barred by Code of Civil Procedure section 340.5. “A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith...

Excerpt: ...son and EQD, LLC's Demurrer to the SAC is OVERRULED as to the 1 st-3 rd COAs; SUSTAINED WITHOUT LEAVE TO AMEND as to the 4 th COA; and SUSTAINED, with 20-days leave to amend, as to the 5 th COA as follows. Defendants' Requests for Judicial Notice of Exhibits A-I are GRANTED, pursuant to Evidence Code §452(d), however, the Court takes notice of the existence of the documents, only, and not Defendants' characterization of the same, within the Requ...

Excerpt: ...within a reasonable time not exceeding six months after judgment, dismissal or order, the court is empowered to relieve a party “upon such terms as may be just ... from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” “A party seeking relief under section 473 on the grounds of excusable neglect bears the burden of demonstrating that the neglec...

Excerpt: ...d (d).) Defendant moves for summary adjudication of the first COA (legal malpractice), claiming Plaintiff's causes of action are without merit, and Plaintiff cannot establish Defendant's breach was a substantial factor in causing his injuries. Defendant's motion for summary adjudication of the second COA (breach of fiduciary duty) is made on the same grounds and evidence as the first COA. Defendant contends Plaintiff cannot present evidence estab...

Excerpt: ... Her Counsel (C.C.P. § 128.7) (Motion), filed on 4-9-18 under ROA No. 892, is DENIED. The court construes Defendant's Motion as a Motion for Reconsideration or a Motion for Renewal. Code of Civil Procedure section 1008 states in part, “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 da...

Excerpt: ...nt in 2013 and was denied. He filed another petition for reinstatement on 4/6/17. The Commissioner of the California Department of Business Oversight (Respondent) denied the Petition on 10/8/18, finding that the Supplemental Declaration Petitioner submitted in support of his petition had false or misleading statements of facts, and that Petitioner's employment history since the Order Barring failed to demonstrate his claimed rehabilitation and co...

Excerpt: ...fficient to support a prayer for punitive damages: “There are no specific allegations as to what the defendant did that would justify the imposition of punitive damages … plaintiff is basically summarily concluding that the alleged acts were … intended to harm plaintiff.” Based on just the four corners of the operative pleading, it is clear that plaintiff has alleged malice. Malice means “despicable conduct which is carried on by the de...

Excerpt: ...llowing costs are in dispute: $2,245 for costs already incurred; $500 for future motion and filing fees; $2,500 for future daily jury fees; and $400 for future record subpoenas. Defendant Saez has shown that although the costs per day for a court reporter is $700, that amount does not include fees for transcript preparation, charges for computer assistance, and other charges, nor does it include the need for interpreters and translators. Defendan...

Excerpt: ... producing the documents would cause unwarranted annoyance, embarrassment, oppression, or undue burden and expense. CCP § 2031.060(b). Plaintiff has also not shown that the “burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” CCP ¶ 2017.020(a). Although Plaintiff's arguments regarding “vouching in” and collateral attacks on t...

Excerpt: ...g especially to the extent that communication between counsel is not taking place. Counsel are reminded of the duty to meet and confer which applies not only for the present motion but for others as well. In the future the power to impose appropriate remedies for any failures on the part of counsel may be necessary to consider. Although the RP proposes that the demurrer be overruled for perceived deficiencies, it is clear by the statute that “a...