Excerpt: ...h filed his first amended complaint on 01/31/18, further amendments (such as joining Mr. Brooks as a party Plaintiff) required court approval. Code Civ. Proc. § 472. On its own motion, the court takes judicial notice of the fact that it did not grant Plaintiff leave to amend his complaint to join Arthur Brooks, dba “Art Brooks Sea Company” as a party plaintiff. Thus, the court holds that Mr. Brooks was not a named party to this action as of ...

Excerpt: ...ely in the trial court's discretion. Cooney v. Cooney (1944) 25 C2d 202, 208 Here, the motion has been made within a reasonable time. It was filed less than a month after defendant was served with the summons and complaint. CCP § 395 states in part: (a) Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or so...

Excerpt: ...nue trial and to leave the discovery cutoff based on the initial trial date was entered into. California law favors resolution of cases on their merits. Elston v. City of Turlock (1985) 38 Cal.3d 227, 233. Lack of diligence to support denial of leave to re-open discovery in the civil action before this court as to defendant Christopher Reyes is not shown. Plaintiffs request for sanctions against defendant Reyes and his counsel, pursuant to C.C.P....

Excerpt: ... set of requests for production served on JYP Investments, LLC, is DENIED as untimely. The last day any party to this action had a right to have any discovery motions heard was 15 days prior to the trial date of January 2, 2018, which was Monday, December 18, 2017. (Code Civ. Proc., § 2024.020.) It is well past this deadline. Plaintiffs have not moved for a request to have this motion heard after this deadline as required under Code of Civil Pro...

Excerpt: ....” Case law interpreting this statute provides for discretion in determining prevailing party. Thus a party seeking an award of attorney's fees, pursuant to Civil Code § 5975(c), must establish that they prevailed on claims to enforce the governing documents. Plaintiff Anthony Lam Nguyen sued defendant The Townhomes Association for enforcement of the governing documents and for wrongful lien. (See, Plaintiff's Complaint.) Summary judgment was ...

Excerpt: ...an infringement action.” Ultrapure Systems, Inc. v. Ham-Let Group (N.D. Cal. 1996) 921 F.Supp. 659, 665. Lack of standing is grounds for a general demurrer. (Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224.) Plaintiff's Opposition concedes this omission and states that the complaint can be amended to address this; accordingly, leave to amend is granted. Moving parties' other arguments are rejecte...

Excerpt: ...of its elements.” (Norgart v Upjohn (1999) 21 Cal.4th 383, 397.) “[T]he statute of limitations begins to run when the plaintiff suspects or should suspect that [its] injury was caused by wrongdoing, that someone has done something wrong … the limitations period begins once the plaintiff “has notice or information of circumstances to put a reasonable person on inquiry …” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–1111.) Wh...

Excerpt: ... to two employees for business purposes. Moving Party states there was no “Easter” celebration and the information regarding the theft was not made by defendant to any family member. In opposition, plaintiff contends the allegations of the First Amended Complaint must be taken as true and defendants have alleged the misrepresentation was made with malice. Plaintiff contends the allegations show defendants “wrongfully terminated Gary based o...

Excerpt: ...prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain.” Rule 3.1332(b) provides that the court may order a trial continuance upon an affirmative showing of good cause. See also, Rutter, Civil Procedure Before Trial, Section 12:453. Rule 3.1332(c) sets forth several specified grounds constituting good cause for a continuance. “Circumstances that may...

Excerpt: ...sufficient is not grounds to grant or deny the motion for judgment on the pleadings” (CCP 439(a)(4)), its requirements are otherwise mandatory. Here, the motion was filed on 1-3-18, and is thus subject to CCP 439. However, Moving Party did not file the required declaration. Responding Party's Opposition raises this defect [as well as arguing the merits of the motion]. Moving Party's Reply argues that the issue of meeting and conferring “was a...

Excerpt: ...n for open book account, fourth cause of action for unjust enrichment/constructive trust and fifth cause of action for accounting. Courts do not grant summary judgment on two causes of action with a plaintiff agreeing to dismiss other causes of action if “summary judgment” as to two other causes of action is granted. Second, as to summary adjudication, plaintiff Eco's motion for summary adjudication as to plaintiffs' first cause of action for...

Excerpt: ...re additional items identified in Attachment 1g that bring the total to $1,770.00. The items in 1.g do bring the total to $1,770.00. The items are filing fees for an ex parte hearing, the MSJ/MSA and two $10 entries for the electronic filing fees related to oppositions. Item 4 – deposition costs Defendant has explained he was the only defendant present at the deposition of plaintiff. Further, despite plaintiff's protestations to the contrary, d...

Excerpt: ...Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“[f]ollowing an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order”].) For the sake of efficiency, however, the court will exercise its discretion to allow the amendment. (Weingarten v. Block (1980) 102 Cal.App.3d 129, 134 [trial court has broad discretion to allow...

Excerpt: ...eading stage. Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D. Cal. 2010) 732 F.Supp.2d 952, 958. As to breach of contract, plaintiff Revel failed to attach the residential lease agreement as Exhibit 1 as alleged, but has alleged sufficient facts as to the legal effect of the contract and the nature of the breaches to state a cause of action for breach of contract. Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 126 Cal.4 th 1...

Excerpt: ...ge in the meet and confer process set forth in Code of Civil Procedure §430.41. That section mandates the “demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Cal. Civ. Proc. Code § 430.41 The declaration filed in connection with this...

Excerpt: ...were in dispute. Plaintiff contends the wrongful conduct was the fact Responding Party instructed the insurance carrier to hold back all attorney fees from the settlement check, (including plaintiff's alleged fees of $83,333.34) despite the fact plaintiff had already agreed to keep defendant's claimed $5,000 lien in his trust account pending an agreement as to the amount of the lien. That act gave defendant an unwarranted advantage over plaintiff...

Excerpt: ...033.290(c).) The parties agreed to extend the statutory deadline to file the instant motions to 12-22- 17. (Ex. F to respective motions.) However, the motions were not filed until 12-28-17. A party seeking to compel further responses to discovery must file the motion within the statutory deadline, or its right to do so is waived; a court is without jurisdiction to do anything but deny the motion if filed after that time, even in the absence of wr...

Excerpt: ...ust 2014 that are in the possession, custody or control of these defendants. As to RFPD Nos. 1 and 2, the court exercises its discretion and sets an evidentiary hearing for 5-7-18, at 9:30 a.m., in Department C-33.Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. The court will hear evidence, including live witnesses, on the following issues: (1) whether an implied attorney-client relationship arose between plaintiff Andrew Oshay as Tru...

Excerpt: ...ust 2014 that are in the possession, custody or control of these defendants. As to RFPD Nos. 1 and 2, the court exercises its discretion and sets an evidentiary hearing for 5-7-18, at 9:30 a.m., in Department C-33.Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. The court will hear evidence, including live witnesses, on the following issues: (1) whether an implied attorney-client relationship arose between plaintiff Andrew Oshay as Tru...

Excerpt: ...te Statement, Fact Nos. 1-4, 25, 266, 267, 279.) As to the second cause of action for breach of contract, there are triable issues as to the terms of the alleged contract, plaintiff's performance, and breach. (Moving Party Separate Statement, Fact Nos. 23-30 [contract terms], 33-35 [performance and/or excuse for nonperformance, damages], 37, 38 [breach]; Responding Party Separate Statement, Fact Nos. 23, 24, 25 [terms], 31, 34, 303-305, 307, 308 ...

Excerpt: ...endants Sidley and McNicholas to plaintiff Coleman's second amended complaint was sustained on the ground of uncertainty. (2-8-18 Minute Order.) In plaintiff Coleman's second amended complaint, plaintiff's definition of “Defendants” included defendants Sidley and McNicholas based on Paragraph 11 of plaintiff' second amended complaint and thus the regular use of “Defendants” left it unclear what allegations were being made against defendan...

Excerpt: ...ged. It is not sufficient that the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4 th 1397, 1403. The Cross-Defendant argues that the Settlement Agreement was executed in April of 2009, and as the purported scrivener's error occurred at that time, the action is barred by the statute of limitations at CCP § 337(1). Cross-Complainant argues that a new cause of action arises each time a wrongful action occurs, i.e...

Excerpt: ...sserting a cause of action as a counterclaim, such cause shall be asserted as a cross-complaint. The erroneous designation of a pleading as a counterclaim shall not affect its validity, but such pleading shall be deemed to be a cross-complaint. Even if the court could consider the counterclaim as a cross-complaint and rule on the merits, the pleading is still procedurally defective. A cross-complaint may not be asserted as part of an answer. The ...

Excerpt: ...es Corp. (1996) 14 Cal.4 th 394, 413. Defendant Alfredo Cervantes is covered by this agreement as he is being sued for conduct within the scope of his agency for defendant AG Seal Beach, LLC. See, Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4 th 1013, 1021. Alternatively, the doctrine of equitable estoppel is applicable as plaintiff Montoya's claims against defendant Alfredo Cervantes are intertwined with plaintiff's cla...

Excerpt: ...mination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. … (e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial procee...