Excerpt: ...on, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.” Intervention is mandatory (as of right) or permissive. Here, Makena is moving for a permissive intervention. Permissive intervention applies where: (1) the intervenor has a direct interest in the litigation; (2) intervention will not enlarge the issues raised by the...

Excerpt: ..., “[f]acts, not conclusions, must be pleaded.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410; WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151 (“Because only factual allegations are considered on demurrer, we must disregard any ‘contentions, deductions or conclusions of fact or law alleged....'”).) Here, Plaintiff makes conclusory allegations that Plaintiff i...

Excerpt: ... occur prior to filing the demurrer. Both parties ask the court to take judicial notice of documents relating to the parties' arbitration before the American Arbitration Association (“AAA”). The requests for judicial notice are important because under Code of Civil Procedure §430.30(a), on demurrer, the court may only consider matters appearing on the face of the pleading, or from any judicially noticeable information. It is notable that, wh...

Excerpt: ...tract claims and only by a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.” Hsu v. Abbara (1995) 9 Cal.4th 863, 876. Other noncontract claims joined in the action are disregarded: “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” Civ. Code § 1717(b) & (c); Santisas v. Goodin (1998) 17 Cal.4th 599, 615; see also Civ...

Excerpt: ... the NIB to real party in interest Cummings Industries, Inc. dba North American Crane Company (“NACC”). Factual Timeline On 04/27/18, the NIB was issued by OCSD, and it required bids to be submitted by 05/29/18. (AR 128.) According to paragraph 3.1 of the NIB, OCSD reserved “the right to reject any or all Bids, waive any or all irregularities and accept or reject any portion of each individual Bid.” (AR 135.) While “[a]ny missing bid re...

Excerpt: ...(CA. LAB. CODE § 510) FAILS AS A MATTER OF LAW (Undisputed Material Facts (“UMF”) 1 to 138) The elements of a cause of action for failure to pay overtime are: (1) plaintiff performed work for defendant; (2) plaintiff worked overtime hours; (2) plaintiff was not paid and/or paid less than the overtime rate for some or all of the overtime hours worked; (4) the amount of overtime pay owed. CAC contends that this cause of action has no merit bec...

Excerpt: ...ge the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. Every element must be pled specifically. Ibid. Moving defendants contend that the cause of action fails to meet this standard, and they are correct. The first cause of action all...

Excerpt: ...ndant's outrageous conduct. Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228-229. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. at p. 229. To avoid a demurrer, the plaintiff must allege with great specificity the acts that he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. Vasquez v. Franklin Ma...

Excerpt: ...udication shall be granted only if it “completely deposes of …an affirmative defense.” Code Civ. Proc. § 437c(f)(1). Plaintiff therefore has the burden of disproving each of the challenged affirmative defenses. This is a different burden than plaintiff would bear if she was moving for summary judgment or adjudication on her own complaint or cause of action. Issue 1 – relating to the second affirmative defense. The second affirmative defe...

Excerpt: ... (f). However, the moving, opposition, and reply briefs go over the page limitations provided under California Rule of Court 3.1113, subdivision (d). Additionally, the court observes that the font used by defendants in the moving and reply brief may run afoul of the font requirements of California Rules of Court 2.104 and 2.105. The parties are urged to review the California Rules of Court and observe all formatting conventions. Because defendant...

Excerpt: ...on the lodestar, which is the amount of time reasonably spent and the reasonable hourly compensation of each attorney. Meister v. Regents of the University of California (1998) 67 Cal.App.4 th 437, 449; Chodos v. Borman (2014) 227 Cal.App.4 th 76, 91-92 There is no challenge to the propriety of the hourly rates – which are $300/hr for pre- dismissal work and $330-360/hr for work on the appeal for Attorney Couch and $330 for work done by Appeal ...

Excerpt: ...art, and SUSTAINED without leave to amend, in part. The demur to the First through Sixth, Ninth and Tenth causes o f a c ti o n i s OV E R R U LED . Th e de mu r t o the S ev en t h an d Ei g h th c a u ses o f a c ti o n is S U S T A IN ED without leave to amend. Defendants' request that the Court take Judicial Notice of the documents attached as Exhibit 1 to the Declaration of David Refice is GRANTED. (Evid. Code §§ 452(c) and 452(h).) To the...

Excerpt: ...mplainant must allege: (1) a misrepresentation, (2) knowledge of its falsity, (3) intent to defraud, 4) justifiable reliance, and (5) damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal. App. 4th 153, 157 (finding, for allegations against corporation, Plaintiff must allege authority to speak for corporation).) The heightened pleading standard requires “‘pleading facts [th...

Excerpt: ...as established that he has complied with the fee requirement under Rule 9.40(e). (Polin Dec., ¶ 13 and Exh. A.) Thus, the unopposed application to appear pro hac vice is GRANTED. Moving parties to give notice. 2. Motion for Protective Order by Defendants Casa Capri, LLC, Casa Capri Recovery Center, LLC, Zackary Irani, Melissa Holmes Goodmon and Jeremy Broderick: Defendants Casa Capri, LLC; Casa Capri Recovery Center, LLC; Zackary Irani; Melissa ...

Excerpt: ...the cutoff date provided under Code of Civil Procedure §2024.020, (2) compelling plaintiffs to comply with their statements of compliance in response to requests for production of documents (“RPD's”), (3) compelling plaintiffs to permit an inspection of Hilz's computer by Continental's forensics expert or appointing a digital forensics expert to conduct that inspection, and (4) compelling further responses to Continental's RPD's, Set Two. Th...

Excerpt: ... Claim for Punitive Damages in Plaintiffs' Third Amended Complaint: 5. Demurrer of Defendant CEP America - California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Plaintiff's Third Amended Complaint: 6. Motion by Defendant CEP America - California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Strike Portions of Plaintiff's Third Amended Complaint: Before the court are three demurrers and three motions to strike, all attacking pla...

Excerpt: ...bution and Indemnity; Third Cause of Action for Declaratory Relief against ERC; and Fourth Cause of Action for Express Indemnity alleged against ERC is also DENIED. ERC's evidentiary objections to evidence submitted by Avico are OVERRULED. Avico's objections to evidence submitted by ERC are also OVERRULED. Express Indemnity Cause of Action: ERC has submitted evidence to show that plaintiff California Military Defendant, owner of Building 7 on the...

Excerpt: ...lity must bepresent before a court can refuse to enforce an arbitration provision based on unconscionability. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4 th 83, 114. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power; substantive unconscionability focuses on overly harsh or one-sided results. Sonic- Calabasis A., Inc. v. Moreno I (2013) 57 Cal.4 th 1109, 1133 The burden of p...

Excerpt: ...) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034). Defendant's answer to form interrogatory 12.1 is: (a-d) Objection. Vague, ambiguous, and uncertain. Invasion of privacy. Violation of attorney client privilege and attorney work product doctrine. Burdenso...

Excerpt: ....D. for Terminating Sanctions for Failure to Obey Discovery Orders: Defendant Lam Dang, MD (“Dang”) moves the court for an order for terminating sanctions by striking plaintiff David Struble's (“Plaintiff”) complaint, or, alternatively, for issue and evidentiary sanctions for willful failure to provide timely verified responses to written discovery pursuant to the court's November 21, 2019 order. Dang also seeks $1,560 in monetary sanctio...

Excerpt: ... the insurer directed or authorized the agent to perform the tortious acts, or it ratifies acts it did not originally authorize.” (R & B Auto Center, Inc. v. Farmers Grp., Inc. (2006) 140 Cal.App.4th 327, 344; Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal.App.3d 513, 518-523.) Further, in California, only licensed life insurance agents are authorized to transact life insurance business. (Cal Ins. Code §§ 32(a); 1622(a)....

Excerpt: ...d their sureties, Michael B. Martin, Scott Hook, and Eric Mooney, is GRANTED. The motion is brought under Code of Civil Procedure §996.440, which states as follows: (a) If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action. (b) The motion shall not be made until after entry of the final judgment in the action or proceeding in which the b...

Excerpt: ..., the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.' [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, fn. omitted.) Protected activity: ...

Excerpt: ...� 1102.5, violation of Labor Code § 6301, failure to authorize and provide meal and rest breaks, and wrongful termination in violation of public policy, respectively. Civil Code § 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means condu...

Excerpt: ...use of action is for legal malpractice. “If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.” Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, 18 Cal.4th 739, 749–750 (1998). Here, the all...