Excerpt: ...e Court partially sustained MCWE's demurrer to the Second Amended Complaint filed by Plaintiffs Newport Harbor Ventures, LLC (“NHV”) and Vertical Media Group, Inc. (“VMG”) (collectively “Plaintiffs”), eliminating two causes of action; that on 6/24/15, Plaintiffs filed a Third Amended Complaint (“TAC”); and that on 6/24/15, the Court granted MCWE's motion for summary adjudication on three of the four causes of action, including all...

Excerpt: ...ited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable 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 co...

Excerpt: ...ned version of any revised papers (including the Notice of Settlement to the class). The moving papers variously reference an estimated class size of over 1,000 (p. 2 of settlement agreement), 1,560 (p. 1 of points and authorities) and 1,650 (Administrator's attached invoice). Which is it, and what is the most accurate class size estimate at this time? The settlement agreement suggests that the Administrator will resolve any workweek disputes. Th...

Excerpt: ...ndant. In the absence of appearance, mail service of the application is insufficient. Where the defendant has not yet appeared in the action and personal service is required, service must be made in the same manner as a summons. (Code Civ. Proc., § 482.070, subd. (d).) Also, here, the proofs of mail service do not show service on Defendant as opposed to other defendants in this action. The court also notes that on their face, the promissory note...

Excerpt: ... an agent of the tenant in Civ. Code § 1162(b)(2). The terms of the commercial lease agreement between the plaintiff and defendant provides that notices given are effective upon “…the earliest of the following: (i) personal receipt by either party or their agent…” The third amended complaint alleges that personal delivery of the notice to quit was made upon the defendant's officer manager on 03/10/17. The court finds that an allegation t...

Excerpt: ...dicial Notice is granted as to Exhibits 3-26. The request is superfluous as to Exhibits 1, 2 and 27—all of which are documents on file in this case—and may be considered by the Court without a request. Defendants' demurrer on the ground of misjoinder is overruled. Defendants' demurrers on ground of lack of standing are sustained with leave to amend as to Plaintiffs Coye Decuir, Martha Diaz, Raivie Galura, Ruffel Galura, Michael Gauthier and B...

Excerpt: ... forth the essential facts of his case with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382. A plaintiff does not need to allege evidentiary facts. C.A. v. William S. Hart Union H.S. Dist. (2012) 53 Cal.4th 861, 872; Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1102. There is no need to require specificity in the pl...

Excerpt: ...uessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187; City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293; McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159-60.) Plaintiffs assert that the claim is meant to seek such relief based on a breach of contract. The demurrer is thus Sustained with leave to amend. The Fourth Cause of Action purports to state a claim for Discrimination in Violation of FEHA, ...

Excerpt: ...int on Defendants on 9/29/17, as confirmed by its proofs of service filed on 10/02/17. Under CCP 430.40 (a), Defendants were required to file their Demurrer within 30 days after being served with the summons and complaint, unless extended by stipulation or court order. The deadline for filing the Demurrer was on or about 10/29/17. Defendants filed their Demurrer nearly two months later on 12/27/17. There is no evidence before the court that the D...

Excerpt: ...Albertson Companies, Inc., rather than Albertsons LLC and because Plaintiff's name was slightly misspelled. Defendant does not, however, point to any place in the complaint or provide any judicially noticeable evidence to support that Defendant was actually ignorant of the LWDA complaint within the one-year statute of limitations or that the LWDA did not have sufficient information to investigate. In determining a demurrer, the Court may look to ...

Excerpt: ...as Exhibit 3 to the Declaration Gabriella A. Pedone. The Plaintiff shall file the Proposed Order within 10 days. The Court finds that Ford has established that materials at issue in this case are entitled to trade secret privacy protections. The defendant has presented evidence which supports a finding that the subject documents Plaintiff wants Ford to produce include confidential, external communications between Ford employees and joint venture ...

Excerpt: ...013) 219 Cal.App.4th 948, 960 [internal citations and quotation marks omitted.]” A claim under the UCL "may be based on representations to the public which are untrue, and also those which may be accurate on some level, but will nonetheless tend to mislead or deceive.... A perfectly true statement couched in such a manner that it is likely to mislead or deceive the consumer, such as by failure to disclose other relevant information, is actionab...

Excerpt: ...s a matter of right, attorney's fees when authorized by contract. Here, plaintiff prevailed in its action for breach of the lease agreement by virtue of the default judgment recently entered in its favor. Plaintiff has established roughly $55,000 in compensable harm, making it the “prevailing party” per CCP §1032(a)(4). The lease agreement provides (at Para 17) as follows: “If after default this agreement is placed with an attorney for col...

Excerpt: ...otal payment” as follows:  Initial $12,000 payment by 06/25/15;  $1,000/month for 15 months;  Final balloon of $33,000. See Rptr Tx 1:26-2:7. Curiously, plaintiff's counsel who put the terms of the settlement on the record indicated that “we'll call for the entry of judgment if payment is not timely made. The amount would be $50,000 less credit for payment made by that point.” See Rptr. Tx 2:10-13. According to the Griesman Decl Pa...

Excerpt: ...A 748) and BNY (ROA 764), except that judicial notice will not extend to any hearsay allegations or the truth of matters asserted therein. General Law “Any person, firm ... or other entity against whom double or multiple claims are made, or may be made, by two or more persons, which are such that they may give rise to double or multiple liability, may bring an action against the claimants to compel them to interplead and litigate their several ...

Excerpt: ... favoring amendment is so strong, “it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case”. Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530. Plaintiff is not changing the nature of this case, and his new claims are based on the same nucleus of operative facts. The amendment would not result in any undue prejudice to defendants, since the new alle...

Excerpt: ... Driver's Handbook [called “DMV Manual in the Motion] and exclusion of testimony that defendant Nguyen “refused” to take a blood alcohol test – were in error and prevented a fair trial. No authority has been cited that either of these evidentiary rulings are wrong as a matter of law and the Court has located no such authority. As such, the Court's rulings were within its discretion under Evidence Code §352. The Court does not find these ...

Excerpt: ...ough the motion is captioned as a “motion for order of limited waiver of attorney-client privilege,” the relief requested in the Notice of Motion is for “an order requiring further testimony by Plaintiff MIKE JOHAR at deposition” and is based on CCP §§ 2019.010, 2025.010 and 2023.030. A review of the Fischbach Firm's moving separate statement indicates that the Fischbach Firm is also seeking to compel further responses to Request for Ad...

Excerpt: ... conference. One of Citi's arguments is that Plaintiffs cannot adequately represent any class because they are represented by the law firm in which Plaintiff Anthony Graham is a named partner, and that the representation presents an insurmountable conflict between the interests of the class representative and class counsel, on one hand, and the putative class, on the other. (Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1261...

Excerpt: ...e amount it owes AWPA due to AWPA's judgment against KDF. However, KDF's cross- complaint which is going to trial is against Paul Harper, not AWPA. Although KDF named AWPA as a cross-defendant, the court sustained AWPA's demurrer to KDF's cross-complaint without leave to amend on December 10, 2014, and KDF did not appeal from the ensuing September 9, 2015 Judgment. Thus, AWPA is not responsible for any damages KDF may recover on its cross-complai...

Excerpt: ... declaration of Plaintiff's counsel, none of which cite to the actual trial transcripts in this matter. By contrast, moving parties have provided specific cites to the trial record in support of their arguments against the sufficiency of any evidence concerning collectability. This matter is continued to February 1, at 2 p.m. Plaintiff is Ordered to file and serve a supplemental brief by no later than 4:30 p.m. on Monday, January 29, 2018, identi...

Excerpt: ...is involved. Plaintiff has also shown a probability of prevailing on the merits of his first cause of action for violation of the Dodd-Frank Act. (15 USC 1602(bb); 15 USC 1639(c)(1); Verified First Amended Complaint at Paras. 16, 17, 21, 29; Ex. A to Verified First Amended Complaint; Romero Decl. in support of Reply, Paras. 4-7.) Plaintiff's evidentiary objections to portions of the Opposition filed by defendant RSA Premium Finance Company are ov...

Excerpt: ...aintiff's counsel are ordered in the future to dul y participate in the required meet and confer process, pursuant to CC P §430.41(a). Demurrer to 1st C/A for Breach of Written Contract The First Amended Complaint alleges fairly clearly, there was an ora agreement with specific terms (FAC ¶ 11) but it is less clear about the writte n contract. It alleges, the oral agreement “was later memorialized in variou s writings, together constituting a...

Excerpt: ...bina has been appointed as administrator and successor in interest by the probate court as to the estates of both plaintiff John Gambina and plaintiff's former successor in interest, Johnny C. Gambina. The court's records reflect that Dorothy Gambina has attempted to file a Substitution of Attorney, and has also filed a declaration requesting the court order the Substitution be filed, and recognizing Dorothy Gambina as successor in interest. Howe...

Excerpt: ...rtners, LLC Joinder Motions: Defendant Wailea Property Partners, LLC's (Wailea) joinder to defendant Colliers International Real Estate Management's (Colliers) demurrer to first amended complaint and motion to strike portions of first amended complaint is DENIED as both procedurally and substantively defective. First, the joinder is untimely. A joinder is timely if it is served and filed within the time for noticing the particular motion at issue...

Excerpt: ...preter fees actually incurred for the second session of Mr. Jin's deposition, not to exceed $1,200.00. Plaintiff to pay for the costs for the court reporter. The second session of the deposition shall occur on a date to be agreed between counsel, but no later than two weeks from today's date. The court finds that circumstances exist to make the imposition of other monetary sanctions unjust at this time, however, should Defendant be required to ap...

Excerpt: ...roper venue. CCP § 395(a). (“Where an individually joined defendant may be genuinely liable on the complaint, it has always been true plaintiff could choose that defendant's residence as the venue even though the corporate defendant was located elsewhere.” Buran Equip. Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1667.) The Michaels defendants reside in this county and are sued as individuals in the 9 th cause of action for violation of...

Excerpt: ...derance of the evidence. (Weil & Brown, Rutter Group, Civil Procedure Before Trial, Chapter 8H-5, Section 8:1454.10, citing Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) A party seeking a protective order must also provide a declaration showing a reasonable and good faith attempt to resolve the issue with opposing counsel. (CCP 2025.420(a).) “[T]he issuance and formulation of protective orders are to a large extent discretionary ...

Excerpt: ...s required setting forth contact information and plaintiff Crystal Cove's pending motion for attorney's fees. See, Rule 3.1362(e). Third, attorney Peter Holzer and his firm failed to give notice of the continued hearing date of 1-25-18 as ordered. On the merits, assuming the service and other procedural defects are resolved, attorney Peter Holzer and the Law Office of Peter Holzer's motion to withdraw as counsel for defendants Se Yull Oh and Jo J...

Excerpt: ...'s failure to comply with this court's orders to provide discovery was willful. Because the Plaintiff has failed and refused to comply with her obligations to provide discovery responses, and her failure to comply with this court's orders, Defendant Jamie Rico Olivarez's ability to prepare for trial has been substantially prejudiced. Given the short amount of time available before trial, an order of sanctions short of the requested terminating sa...

Excerpt: ...rnational's 10 discovery motions filed in August 2017 and continued per ex parte order for hearing, motions relating to discovery were cutoff based on the August trial date. (8-28-17 Minute Order and Order filed 8-28- 17, as well as the 10-25-17 Minute Order.) Frank Li made no request for leave to bring any further discovery motions at the ex parte hearing on 8-28-17. Prevailing party to give notice 2) Frank Li's motion to compel further Response...

Excerpt: ...omplaint responses to the Defendant's discovery requests, and thereby suffer further prejudice in its preparation for trial, the Court reserves the right to revisit the issue of terminating sanctions and shall consider all of the evidence then presented, including the history preceding the date hereof. The Court Orders Plaintiff to serve second further non- evasive, verified responses to Defendant's Special Interrogatories Set No. One, and Inspec...

Excerpt: ...ause it might be required to satisfy the judgment against its insured. The moving party has attached a copy of the proposed answer to th e motion. Colfer Dec. ¶ 2, Exhibit A. The default was enters on July 5, 2017 and default judgment was entered o n July 14, 2017. Rodriguez Dec. ¶¶ 16. This motion was filed on October 10 , 2017. Therefore, it is timely under CCP § 473(b). The moving party has established its insured's default and de-fault ju...

Excerpt: ...arge a daily fee if the expert is required by the requesting party to be available for a full day and the expert had to forego all business would have otherwise conducted but for the request that the expert be available all day for the scheduled deposition. The Plaintiff's Notice of Deposition for Dr. Haiavy states that: “If the deposition is not completed on the date set out above [01/03/18], the taking of the deposition will be continued from...

Excerpt: ...-opposition, stating she does not oppose the motion, and has not presented any evidence showing that moving party was properly served, as is plaintiff's burden. (Ziller, supra at 1232.) Plaintiff to give notice. ...

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Excerpt: ...; This showing supports the appointment of a receiver under CCP§564(b)(1); Grant motion as follows: -Deft to change title to the real property to show Pltf and Deft as joint tenants [if this has not already been done]; -Cooperate in the listing marketing and sale of the property; -Hold the sale proceeds in a blocked account pending resolution of the underlying disputes; Unless Deft vacates the property by Saturday, 1/27/18, the Court will appoin...

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Excerpt: ...nst the Ogorzalek Deft; Sustain with 10 daysleave to amend; Special Motion to Strike The Ogorzalek Defts have failed to make a threshold showing that the challenged causes of action arise from protected activity; The gravamen of Pltf's claims are breach of fiduciary duty and elder abuse, not protected activities; Deny. ...

Excerpt: ...otion to quash the subpoena to Dr. Stevens is granted. Defendant contends she seeks Dr. Stevens's records to obtain consent forms signed by Plaintiff and photographs of Plaintiff's face, mouth and teeth, and allegedly to prove Plaintiff was dissatisfied with her breast augmentation and “may suffer from body dysmorphic disorder.” None of these purported reasons for seeking Plaintiff's medical records from an unrelated procedure on a different ...

Excerpt: ...2030.290. Plaintiffs did not serve and have not served responses to these sets of discovery. Plaintiffs also did not file an opposition to Defendant's motions to compel. Defendant served the subject discovery requests by mail on August 17, 2017. Keidel Interrogatory Decl. ¶¶ 2-5; Keidel RFP Decl. ¶ 2. Responses were due September 21, 2017. Plaintiffs did not serve and have not served responses. Keidel Interrogatory Decl. ¶¶ 6-7; Keidel RFP D...

Excerpt: ...m Interrogatory No. 6.4.” Form Interrogatory 6.4 asked Plaintiff whether she received any consultation, examination or treatment from a health care provider for any injury she attributes to the incident at issue in this case, and, if so, to identify the provider, the type of consultation, examination or treatment provided, the relevant dates, and the charges to date. After Plaintiff served her responses to Request Nos. 1-7, 9, 10, 14 and 19, he...

Excerpt: ...Proc. Code § 2032.320 (a). Defendant has shown good cause for the second physical examination with a neurosurgeon. Prior to the first examination with the orthopedic surgeon, Defendant had no medical report indicating that Plaintiff needed surgery. Plaintiff's first neurosurgeon, Dr. Alexander Taghva, did not recommend surgery: “Unfortunately I have no surgery to offer patient, can consider NS second opinion.” Ex. E at 3. In Plaintiff's depo...

Excerpt: ...egarding Requests for Production Nos. 1, 6, 11, 13 and 19, Plaintiff's counsel is ordered to send Defendant's counsel a letter by February 1, 2018 stating whether Plaintiff has withheld any documents responsive to Requests for Production Nos. 1, 6, 11, 13 and 19 on the basis of any of the objections stated in Plaintiff's responses (initial and supplemental, if supplemental responses were served) to those Requests for Production. If Plaintiff has ...

Excerpt: ...gh inadvertence, THE PART DRAWINGS, any portion of THE PART DRAWINGS, and/or any drafts or earlier or later versions of THE PART DRAWINGS.” Plaintiff responded with an objection that the interrogatory is compound and further responded “Responding Party has never made the part drawings publicly accessible through inadvertence or otherwise.” Civil Procedure Code § 2030.060(f) states: “No specially prepared interrogatory shall contain subpa...

Excerpt: ...ant responded to Form Interrogatory No. 209.2 with only objections. Plaintiff's motion is granted, as limited by this ruling. Defendant is ordered to respond to Form Interrogatory No. 209.2 limited as follows: Except for this action, in the past five years has any employee employed in Defendant's Central Business Office or employed in any office overseen or supervised by the Senior Regional Director of Patient Accounting of West Region filed a ci...

Excerpt: ...rminating sanctions were not served on plaintiff's attorney, Timothy Casey. While Casey's motion to be relieved was granted on 7-5-17 and the court signed the order on 7-6-17, no POS showing the order was served was ever filed. As a result, the order granting the motion to be relieved is, as yet, not in effect, and Casey remains counsel of record for plaintiff. Additionally, the street address used to serve plaintiff was not the address set forth...

Excerpt: ...otion, by setting a date and time for hearing pursuant to Code of Civil Procedure section 1212. The Motion is DENIED. “[T]he filing of a sufficient affidavit is a jurisdictional prerequisite to a contempt proceeding.” (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1169 (“Koehler”).) In indirect contempt proceedings based on a disobedience of a prior court order, a valid judgment must establish the following: (1) facts establishin...