Excerpt: ...uch was not required. Upon learning plaintiff provided services without leave, the bankruptcy court set an OSC re: disgorgement of plaintiff's fees. On October 11, 2018 plaintiff and Christel Pascucci entered into a settlement agreement under which plaintiff disgorged all fees and assigned his claims against WHB to Christel; the agreement was approved by the bankruptcy court on October 15, 2018. On October 14 and 15, 2018 debtor and Christel Pasc...

Excerpt: ...anufacturer of the stairs, moves for summary judgment on causation grounds. Summary Judgment Standard A court determining a summary judgment or adjudication motion must (1) identify the issues framed by the complaint, (2) determine whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determine whether opposing party raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4t...

Excerpt: ...intiff responded to the January and February discovery on May 29, 2020 and provided further responses on October 8, 2020. Defendant claims these responses were deficient and contained improper objections. To date, plaintiff has not responded to the December 23 RFPs. Defendant moves to compel further responses. Analysis Information is discoverable if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating...

Excerpt: ...ication. Plaintiff's evidentiary objections OVERRULED. Summary Judgment Standard A court determining a summary judgment motion applies a three-step process: (1) identifying issues framed, (2) determining whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determining whether the opposing party has raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662. A de...

Excerpt: ...rance agreement, under which lender would refrain from seeking to collect until May 1, 2020, when the entire outstanding debt came due. Plaintiff alleges the loan has not been paid and moves for summary judgment. Evidentiary Objections Defendant's Objections: SUSTAINED as to objections 6 and 7 (hearsay) and 16 (improper legal opinion/speculation.) OVERRULED as to other objections. Plaintiff's Objections: SUSTAINED as to objection 1 and 2 (Respond...

Excerpt: ... a type of remedy. Batt v. City & County of San Francisco. (2007) 155 Cal.App.4th 65, 82. Plaintiff seeks declaratory relief in connection with her first cause of action. A separate claim for declaratory relief is redundant and adds nothing by way of law or fact. SUSTAINED without leave to amend. Private Nuisance A nuisance consists of “anything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to t...

Excerpt: ...l contract, promissory estoppel, fraud and negligent misrepresentation. Breach of Oral Contract The elements of a cause of action for breach of oral contract are (1) the contract, (2) plaintiff's performance, (3) defendant's breach and (4) damages. Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186. Defendants argue terms and parties are insufficiently alleged because plaintiff lumped together both defendants and failed to clarify how those who...

Excerpt: ...ing that the action is barred by state and local eviction moratoriums adopted in response to COVID-19. The court sustained a demurrer to the initial complaint on the grounds that, under the county eviction moratorium, the lease was automatically renewed. Leave to amend was granted, and defendant demurs to the FAC on essentially the same grounds. State Executive Order N-28-20, issued March 4, 2020, states “[t]he statutory cause of action for jud...

Excerpt: .... A party may obtain discovery regarding any non-privileged subject matter relevant to a pending action if the matter itself is admissible or is reasonably calculated to lead to the discovery of admissible evidence. Cal. Code of Civ. Proc.§2017.010. Generally, evidence of insurance coverage is not relevant in a civil action, but it is not strictly excluded from discovery. Irvington‐Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, 740. ...

Excerpt: ...sustained in part. Defendants Elliman and Kanani demur to the SAC on similar grounds. Defendants Ezhari and Babak Ezhari, Trustee, also demur. Elliman/Kanani Demurrer Breach of Covenant of Quiet Enjoyment The court previously sustained defendants' demurrer to this cause of action without leave to amend. 11/19 Minute Order, pgs. 1-2. The SAC should not have named Elliman Trust and Kanani in connection with this claim. SUSTAINED without leave to am...

Excerpt: ...laintiff because the patio did not meet the county's air flow requirement. On February 24, 2021 the DPH issued a citation shutting the patio. Plaintiff moves for a temporary restraining order to allow dining on the patio. Pursuant to Los Angeles County's Health Officer Order, “to operate for outdoor dining service, the facility's outdoor dining area must allow for the free flow of outdoor air through the entire space and must follow the State's...

Excerpt: ...default against Banner Promotions on May 7, 2020, which now seeks dismissal for lack of jurisdiction and forum non conveniens. Plaintiff files supplemental briefing detailing attorney's fees incurred obtaining entry of default and opposing defendant's motion to set aside default for attorney error. A court has general personal jurisdiction over a defendant if the defendant has “constant and pervasive” contacts with the forum state. Daimler AG...

Excerpt: ...marketing and sales services in 2016 and terminated him in 2017. Eckey alleges Damon fired him because of his sexual orientation and because he complained about Damon's unlawful practice of selling used beds as new, and he did not receive owed commissions. Damon alleges Eckey was fired because of poor sales performance, inadequate management style and disrespect toward customers and coworkers. Damon alleges Eckey took confidential documents, incl...

Excerpt: ...t up to code. Plaintiff served requests for production of documents and special interrogatories on July 2, 2020. Despite several extensions, defendants did not timely serve responses. At a December 7, 2020 informal discovery conference, the court ordered defendants to serve code-compliant responses within 30 days. Defendants responded on January 7, 2021. Plaintiff argues defendants' responses were insufficient and moves to compel further response...

Excerpt: ...final modification agreement, they would qualify for a loan modification. Plaintiffs allege they made the payments but did not receive a good-faith loan modification offer. BANA argues the modification was denied because of multiple unsatisfied liens on the property. The third amended complaint contains a cause of action for breach of contract against BANA. Evidentiary Objections: Plaintiffs' objections OVERRULED. Breach of Contract The elements ...

Excerpt: ...ity of Santa Monica both demur to the first amended complaint. Negligence/Defendant Bird The elements of negligence are (1) duty of care, (2) breach and (3) causation. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. Vehicle rental companies are generally not responsible for the negligence of those who rent vehicles. See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1143. This is codified in the federal Graves Amendment. 49 U.S.C. §3010...

Excerpt: ...lly refuses to turn over the footage. Defendant Kawauchi lives in Los Angeles; defendant Sato is a Japanese national. Defendants argue service on Sato is void because plaintiffs have not complied with the Hague Convention requirements for foreign service of process. Additionally, defendants allege plaintiffs' proof of substituted service is false, as surveillance video shows nobody was served at Kawauchi's house on the date and time stated in the...

Excerpt: ...ission to file supplemental briefing as to the issue of contractual indemnity only. Regents' Motion Parties to a contract have the right to assign responsibility to one contracting party for the other's legal defense when a third-party claim is made against the other. Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 565 fn. 12. Therefore, a contractual indemnitor has the obligation, upon tender by the indemnitee, to accept and assume ...

Excerpt: ...s to any arbitration provision in “a contract evidencing a transaction affecting interstate commerce.” 9 U.S.C. §2. Under the FAA, any provision in an employment contract requiring controversies to be settled via arbitration “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Id. Defendant argues since it is involved in interstate commerce, the FAA applie...

Excerpt: ...aining a “buy-sell” provision allowing either party to buy out the other's interest. In 2014 defendant Horn, as trustee of the Janis F. Horn Trust, sued plaintiff Levy in a separate action (the 2014 action) alleging he wrongfully withdrew money from the companies. Horn argued that, because of the alleged misconduct, plaintiff forfeited buy-sell and management rights. Plaintiff argued the withdrawals were allowed, and he retained the buy-sell ...

Excerpt: ...iff alleges defendant Shama colluded and conspired in hiding Masoud's assets from his creditors, including real property. Plaintiff further alleges that in 2016 Masoud (via his shell entity Nato) and Shama entered a settlement agreement under which Masoud's interest in the Washington property would be held secretly in trust for Masoud by Shama, protecting it from judgment enforcement. Evidentiary Objections Plaintiff's Objections: Objections 6, 1...

Excerpt: ...t Dyne moves for summary adjudication, arguing he did not sign the credit agreement or authorize anyone to sign it on his behalf. On September 16, 2020 the court continued the hearing to allow plaintiff to depose Dyne. Evidentiary Objections: OVERRULED. Analysis To obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” See Aguilar v. Atlantic Richfi...

Excerpt: ...the course and scope of employment, workers' compensation is the exclusive remedy. Cal. Lab. Code §3602. If an employee of an independent contractor suffers a work-related injury, he may not sue the hirer and his exclusive remedy lies in workers' compensation. Privette v. Superior Court (1993) 5 Cal.4 th 689. A hirer may be independently liable to a contractor's employee, despite Privette, if the hirer retained control and affirmatively contribu...

Excerpt: ...fficer Lagin because he directed her to speak with him in the street. Defendants City of Beverly Hills and Lagin move for summary judgment. Defendants' Evidentiary Objections: all overruled. A court determining a summary judgment or summary adjudication motion applies a three-step process: (1) identifying the issues framed, (2) determining whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determining...

Excerpt: ...are based on the indemnity provision in the purchase agreement between Jamsid and Pervaiz. Cross-defendants Jasmid and Rabbani argue the contract's indemnity provision does not apply, since Metro Fusion's lawsuit arises from a leak caused by Sano's alleged negligence long after purchasing the store, noting the court granted summary adjudication as to all negligence causes of action against Rabbani. Summary adjudication as to the negligence causes...

Excerpt: ...on performed was faulty. Defendants demur and move to strike claims for punitive damages and attorney's fees. Plaintiff filed opposition in related case No. 19SMCV01786 (Vaynman v. BHR). Because the opposition was not filed in the instant (lead) case, the court was unaware of its filing and continued the hearing to 12/15/20. Demurrer First Cause of Action for Financial Elder Abuse Financial elder abuse occurs when a person or entity takes propert...

Excerpt: ... to shield it from judgment enforcement. Defendant Mirna admits the transfer was made “out of desperation to attempt to save her home.” Plaintiff alleges this gives rise to causes of action for fraudulent transfer, fraud, constructive trust and unjust enrichment. Defendant Mirna demurs. The Guerra defendants move to quash subpoenas seeking all their bank savings and checking statements from January 2013 through May 2020. Fraudulent Transfer U...

Excerpt: ...fendant Jorquez's real estate agents, demur and move to strike portions of the first amended complaint. Breach of Covenant of Quiet Enjoyment The covenant of quiet enjoyment exists between a landlord and tenant. E.g. Pierce v. Nash (1954) 126 Cal.App.2d 606. Breach is a contract claim, not a tort. Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 896. The doctrine of civil conspiracy requires “commission of an actual tort.” Applied Equipment Cor...

Excerpt: ...tachment may only issue in an action on a claim for money based on contract where the total amount owed is equal to or greater than $500, and the amount sought is “fixed or readily ascertainable” by reference to the contract. A writ of attachment may not issue against a claim secured by real property and may only issue against a natural person when the claim arises out of the conduct of a “trade, business, or profession.” Cal. Code of Civ...

Excerpt: ... Set One is DENIED in part (i.e., as to Request Nos. 59 and 66) and otherwise GRANTED. Defendant is ordered to produce verified, code-compliant responses without objection within 20 days, subject to the limitations contained herein. Background Plaintiff Alicia Camacho (“Plaintiff”) alleges that, on or about April 27, 2013, Plaintiff purchased a 2013 Nissan Sentra VIN #3N1AB7AP0DL708666 (“subject vehicle”). Plaintiff alleges that the subje...

Excerpt: ...h California and all witnesses/evidence are in China. Under Cal. Code of Civ. Proc. §410.30, if a court finds “in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” Before the court can determine whether an alternative forum is appropriate, it must first find (1) the parties are subject to the alternat...

Excerpt: ... strike portions of the first amended complaint. Fraud The elements of fraud are (1) a representation, (2) falsity, (3) knowledge of falsity, (4) intent to deceive, (5) reliance and (6) damages. Mosier v. So. Cal. Physicians Ins. Exch. (1998) 63 Cal.App.4 th 1022, 1045. Fraud must be pleaded with heightened particularity. Alfaro v. Community Housing Improvement System & Planning Assoc. (2009) 171 Cal.App.4 th 1356, 1384. This is only applicable t...

Excerpt: ...Civ. Code §425.16. Analysis Courts resolving an anti-SLAPP motion under Cal. Civ. Code §425.16 follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying plaintiff's cause of action arises from defendant's constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue—if moving party fails t...

Excerpt: ...t with KS Property Group and its principal Kaufman. A court determining a summary judgment motion applies a three-step process: (1) identifying issues, (2) determining whether moving party made an adequate showing negating the opponent's claim and (3) determining whether opposing party raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662. Defendant has the initial burden of showing one or more eleme...

Excerpt: ... for damage due to a water leak, allegedly from the adjacent Sano dba Tutti Frutti frozen yogurt store. Sano and its owner/manager Fatima Pervaiz cross-complained against prior yogurt shop owner Jasmid International and its president cross-defendant Azita Rabbani, alleging they caused the leaks. The plumbing was installed in 2010; in 2015 it leaked and was repaired. Rabbani moves for summary judgment/adjudication. Sano moves for leave to file a f...

Excerpt: ...ages, regarding whether plaintiff faced lesser action other than termination. The court did not grant leave to file a reply or supplemental separate statement or evidence, so those documents are disregarded, and plaintiff's objections to those filings are SUSTAINED. Third Cause of Action for Failure to Reasonably Accommodate & Fourth Cause of Action for Failure to Engage in the Interactive Process Cal. Gov. Code §12940(n) requires an employer to...

Excerpt: ...attery cause of action against a police officer, plaintiff must show the officer used excessive force. Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272. When an excessive force claim arises in the context of an arrest or investigatory stop, it is analyzed under the Fourth Amendment. Graham v. M.S. Connor (1989) 490 U.S. 386, 394. A use of force claim does not necessarily have to involve an arrest or stop; excessive force that does not im...

Excerpt: ...emonstrate why his cause of action for breach of fiduciary duty is not barred by the statute of limitations (Cal. Code of Civ. Proc. §340.6). The elements of a cause of action for breach of fiduciary duty are (1) existence of a fiduciary duty, (2) breach and (3) damages. Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4 th 1179, 1183. An action against an attorney for a wrongful act or omission, other than for actual fraud, arising...

Excerpt: ...r plaintiffs violated the California Coastal Act by blocking public access to the trails. Plaintiffs seek class certification of their quiet title, declaratory relief and injunctive relief claims, with the proposed class consisting of all Sycamore Park property owners. Defendants/cross-complainant MRCA seeks to compel cross-defendant homeowner Elizabeth Stephens to answer deposition questions and produce a cell phone video. Class Certification Mo...

Excerpt: ...ontempt, alleging Aghchay repeatedly violated an order not to park on Spannhoff's property. Aghchay's Motion for Mandatory Injunction When determining whether to grant a preliminary injunction, courts evaluate two interrelated factors: likelihood plaintiff will prevail and interim harm plaintiff is likely to sustain if the injunction were denied, versus harm defendant is likely to suffer if the injunction issued. Bd. of Supervisors of Butte Count...

Excerpt: ... false representations regarding malpractice insurance and poor work performance. Each party demurs. This was put over to allow the court to review additional pleadings. Sunkin's Demurrer to First Amended Cross-Complaint Statute of Limitations Under Cal. Code of Civ. Proc. §340.6, any cause of action, other than fraud, based on an attorney's provision of legal services is subject to a one-year statute of limitations. That statute of limitations ...

Excerpt: ...taining workers compensation insurance. Cross-Defendants' Demurrer to and Motion to Strike Portions of Cross-Complaint Tort vs. Contract; Statute of Limitations A pleading “valid on its face may nevertheless be subject to a demurrer when matters judicially noticed by the court render the complaint meritless.” Del. E. Webb. Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605. A cause of action for breach of oral contract is su...

Excerpt: ...lti-asset family partnership, including car dealerships and real estate, is shared 50/50 between brothers Kamran and Kayvan. Defendants argue it is split 35/35/15/15 between Kamran, Kayvan and sisters Soheyla and Pouran. While terminating sanctions should not be applied unless the court concludes that lesser sanctions would not bring about the compliance of the offending party, they are available “in the first instance” for egregious abuses o...

Excerpt: ...iversity's cross-complaint alleges failure to turn over client files and property, overcharges, false representations regarding malpractice insurance and poor work performance. Each party demurs. University's Demurrer to Complaint Uncertainty A plaintiff may sue an unknown defendant as “Doe,” amending with defendant's true name once ascertained. Cal. Code of Civ Proc. §474. Including Doe defendants does not render the allegations uncertain. ...

Excerpt: ...t, i.e., California's labor laws, a significant benefit has been conferred on a large class of persons, i.e., the Porterville employees, the necessity and financial burden of private enforcement are such as to make the award appropriate in this class action and PAGA lawsuit, and the fees should not in the interest of justice be paid out of the recovery in this court's opinion. Plaintiffs also are entitled to an award of reasonable attorneys' fees...

Excerpt: ... defendant Loomstein made defamatory statements about TOL's sole shareholder, Kenneth Schwenker, calling him an “idiot with no idea of what he is doing” and claiming “everything he does is wrong.” Plaintiff alleges defendant repeated those statements to Pearson, who repudiated his contract with TOL. Plaintiff alleges intentional interference with contractual relations, intentional interference with prospective economic advantage, negligen...

Excerpt: ...to compel depositions of Brian Toll and John Terzian, owners of defendants' organization. Plaintiff served deposition notices on both individuals via overnight mail on March 2, 2020. Defendants' head of security, Scott Gaglia, reported directly to Toll and Terzian (Plaintiff's Exhibit E), who had access to security footage from the night of the incident (Plaintiff's Exhibit G). Cal. Code of Civ. Proc. §2025.270 requires deposition notices to be ...

Excerpt: ...fendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal. App. 4th 457. “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” Id. “Once the defendant has made such a showing, the burden shifts to the plaintiff ...

Excerpt: ...duct in managing the properties. Chang alleges Lee did not pay him for working as property manager for 30 years. Chang alleges causes of action for breach of quasi- contract, breach of implied-in-fact contract and quantum meruit; Lee demurs to all causes of action. Chang moves to strike the complaint's attorney fees request. Demurrer Statute of Limitations The statute of limitations for breach of implied-in-fact contract, breach of the covenant o...

Excerpt: ...e over control of a family business partnership's assets plaintiff siblings accuse defendant siblings of embezzling, making unilateral financial decisions and denying plaintiffs access to funds. Defendants cross-complain, alleging plaintiffs engaged in various misconduct, including embezzlement. Plaintiffs' Motion for Preliminary Injunction On May 27, 2020 the court issued a temporary restraining order preventing all parties from withdrawing fund...