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: ...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: ...d (h).) Preliminary Injunction: First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442.) Plaintiffs contend Defendants violated the HBOR by: (1) not notifying them with any notice or recordation that Caliber had acquired the beneficial interest in their mortgage (Hoffmann Decl. ¶ 4.); Defendants r...

Excerpt: ...iss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under inherent authority of the court. The trial court has inherent authority to dismiss an action. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916 (“Lyons”); Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799; Progressive Concrete, Inc. v. Parker (2006) 136 Cal.App.4th 540, 551, fn....

Excerpt: ... rates charged here. The Court applied a blended rate of $200 to 784.20 hours. Clerk to give notice. MP seeks attorney fees in the amount of $212,198.00. At first blush, this amount appears reasonable given the hourly rate of MP's attorneys were $300-385 an hour, and the case involved 2 MSJ hearings, 16 discovery motion hearings, 4 demurrer hearings, 1 motion to expunge, CMCs, and other litigation since 2011. However, a review of the billing stat...

Excerpt: ...ny judgment will be paid out through insurance and so Defendant's private residence information is unnecessary to collect any judgment. Although it is true Defendant's residence address may not necessarily be relevant, this interrogatory is a judicially approved form and provides background information of a party. As to Form Interrogatory No. 15.1, the Motion is GRANTED as as to 1st, 3 rd-10 th and 12 th Affirmative Defenses as to subsections (a)...

Excerpt: ...nd Laurence shall sell the Edna Property to satisfy any liens and any amounts owing to Hemming Morse. (Judgment, §1(b).) An escrow shall be opened and the sale proceeds divided as follows: 1. Hemming Morse shall be paid the amount of $447,245.76, plus interest at the rate of 10 percent per year from and after December 1, 2010 until the date of payment pursuant to the Hemming Morse Judgment; 2. To the extent that Patrick has made any payments on ...

Excerpt: ...en reluctant to find that the defect is not dangerous as a matter of law.'” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568.) Here, the Declaration of Defendant's expert, John Brault, states the maximum depth of the depression was 1 ¼ inch. (See Brault Decl. ¶6.) The Declaration of Plaintiff's expert, Gary M. Gsell states the depth of the depression was 1 ½ inch. (See Gsell Decl. ¶18.) However, it appears both experts meas...

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: ...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: ...rimary determination to be made at trial.” (Gray v. Superior Court (1997) 52 Cal. App. 4th 165, 171.) Here, no trial has occurred and Plaintiff cites no legal authority to permit the Court to resolve the disputed issues by way of this Motion. Second, Plaintiff contends “[a]ll lien holders agree with this course of action, and there is no other way for Judgment Lien creditor ANDRADE FINANCIAL and co-owner to be paid its Judgment Lien…” (Se...

Excerpt: ...endant ManaMed, Inc. (“ManaMed”), and against new defendant Spartamed, LLC (“SpartaMed”) within 10 calendar days of the date of this order. The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the ti...

Excerpt: ...Cross-Complainant Patricia Pisani's evidentiary objections to the Declaration of David Beavers are OVERRULED. Procedural Compliance: On 2-5-19, the Court and counsel held a discussion regarding progress made to resolve issues presented in this Motion. The parties agreed and the Court ordered that a motion may be re-filed as to any remaining issues. (See Minute Order dated 2-5-19 [ROA 386].) The Motion is accompanied by separate statements and a d...

Excerpt: ...tached to the Declaration of Storey establishes that MP seeks to seal documents which do not involve the above limitations. Accordingly, Motion to Seal is continued to 2-19-19, Dept. C11, at 2 pm, to allow MP to submit a redacted copy of the exhibits that only redacts names of third-parties who may have suffered from sexual abuse by Defendant Richard Urbanowicz, and the specific acts of sexual assault (or potential sexual assault) by Richard Urba...

Excerpt: ...RED to provide a Supplemental Response within the next 21-calendar days. Moving Party to give notice. (2) Plaintiff Marcia Kelly's Motion to Compel Further Responses to Special Interrogatories, Set No. One, Special Irog No. 1, is DENIED as overbroad. (See, e.g., Life Technologies Corp. v. Superior Court (2017) 7 Cal.4 th 1, disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5 th 531, 557, fn. 8.) This interrogatory seeks info...

Excerpt: ...mpletely render this Motion MOOT. (See ¶5 and ¶7-¶9 of Gjedsted Declaration). Consequently, the Court requests clarification from Counsel, as to which portions of this Motion, if any, remain at issue. (2) Motion to Compel Deposition: With respect to Plaintiff's Motion to Compel Deposition directed to Defendant El Toro Medical Investors Limited Partnership, the Court notes an agreement to produce for Deposition Mr. Magtanong as Defendant's Pers...

Excerpt: ... requisite mental capacity when he executed the “Resident Representative Designation” which designated Plaintiff's son as his representative to execute the arbitration agreements. As such, Plaintiff's son's execution of the Arbitration Agreements is not binding upon Plaintiff. Moving Party is to give notice. (2) Plaintiff Robert Braum's Motion for Trial Preference is GRANTED as follows. Plaintiff has sufficiently met the requirements for tria...

Excerpt: ...attorneys with the following hours: Amy Hudjuk – 4.0 hours Amy Morse – 7.7 hours Christopher Swanson – 0.9 hours Hadi Gerami – 13.1 hours Michael Ouziel – 12.4 hours Steve Mikhov – 7.4 hours Thomas Burns – 0 hours Upon further review, the court finds the remaining billed time cannot be reasonably apportioned. The billed time is too impractical to apportion and/or involve issues so inextricably intertwined such as to apply to both th...

Excerpt: ...me. Here, unlike in Munn, the record does not show a probate court action exists or that the alleged will was probated and that the transfer of the property was made pursuant to a Probate Court Order. As such, this contention is outside the four-corners of the complaint. “A demurrer tests the legal sufficiency of the complaint.” (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) Further, the IIEI claim is adequately alleged in pa...

Excerpt: ...discovery dispute. The parties are ordered to file a joint statement, by no later than 1-30-19, specifying the issues that they are still unable to resolve. The Notice of Deposition identified one hundred and three (103) categories/areas that Plaintiff's Person Most Knowledgeable (“PMK”) will be deposed on, and sought production of one hundred (100) categories of documents. (Motion, Ruiz Decl., Exh. D.) Defendant objected to all of the catego...

Excerpt: ...alternative Summary Adjudication of both its causes of action and defendants' affirmative defenses is DENIED. Plaintiff Skilled has failed to meet its burden to produce admissible evidence on each element of a “cause of action” entitling it to judgment. (Code Civ. Proc., §437(p) (1); Hunter v. Pacific Mechanical Group (1995) 37 Cal.App.4 th1282, 1287 (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 8...

Excerpt: ...nd includes the place of execution as required. The Court OVERRULES Plaintiff's evidentiary objections Nos. 2-5 to the Declaration of Hickerson. Defendant's Evidentiary Objections: The Court SUSTAINS Objection Nos. 2, 6, 7, and 10 and OVERRULES all other Objections, Nos. 1, 3-5, 8, 9, and 11-19. “To recover under respondeat superior, plaintiff bears the burden of proof to demonstrate that the employee's tortious act was committed within the sco...

Excerpt: ...er to this claim, without leave to amend. With respect to the First Cause of Action, while Defendant asserts Plaintiff's claims have been rendered MOOT by the rescission of a May 27, 2015 Notice of Default (See Exhibit H of RJN), a review of the Complaint did not reveal any references to this document. Instead, the Complaint refers to a Notice of Default recorded on November 16, 2010, for which there has been no judicially noticeable evidence of ...

Excerpt: ...d and served on 1-9-19, two days after the Opposition papers were due and also fail to comply with 3.1354(b). Motion: As to the 1 st and 3 rd COAs (breach of contract), the Motion is MOOT as these causes of action were dismissed by Plaintiff on 9- 12-17. As to the 2 nd COA (breach of contract), the Motion is DENIED. Plaintiff presented evidence that Plaintiff and Defendant entered into an oral agreement for Plaintiff to provide legal representati...

Excerpt: ...nd (3) the Circuit Court of Buchanan County, Missouri, as requested by moving Defendants. (Evid. Code, § 452(d).) Motion to Dismiss: In June of 2018, Plaintiffs filed four separate actions within three days of each other in three different states: (1) the District Court for Ringgold County, Iowa; (2) the Circuit Court of Jackson County, Missouri; (3) the Circuit Court of Buchanan County, Missouri; and (4) this action in Superior Court of Orange ...

Excerpt: ...00. Motion to Enforce Settlement: Defendant Patrick F. Grabowski, Sr. (“Patrick”) is seeking to expunge the Abstract of Judgment bearing Instrument Number 18-296670 recorded by Plaintiff Laurence Grabowski (“Laurence”), and any and all abstracts of judgment Laurence caused to be recorded. In May 2012, this Court entered the Court's Amended Final Judgment (“Final Judgment”). One of the tenets of the Judgment is that it “shall not be ...

Excerpt: ...e Statement are overruled. Separate Statement is not evidence. Defendant's evidentiary objection No. 3 to Leo Paul Glaab's Testimony is sustained; overruled as to objection Nos. 1-2 and 4. Defendant's evidentiary objections No. 5 Robert Pettis' Testimony is sustained; overruled as to objection No. 6. Defendant's evidentiary objections Nos. 7-9 to Rock Wagner's Testimony are sustained. Defendant's evidentiary objection No. 10 to David McGill's Tes...

Excerpt: ...-Defendant leave to add new causes of action to the Cross- Complaint. As to the 4 th COA (breach of the covenant of good faith and fair dealing), this claim is not identical to the 1 st COA for malpractice because although they rely, in part, on some of the same set of facts, the damages sought are not identical. (See FAXC, ¶¶15 and 43.) As to the 6 th COA (concealment), this claim is not pled with the required specificity under California law....

Excerpt: ...ct, Division 3 has treated Unjust Enrichment as a separate cause of action. (See Peterson v. Cellco Partnership (2008) 164 Cal.App.4 th1583, 1593: “The elements of an unjust enrichment claim are…”). Additionally, pursuant to Munoz v. MacMillan (2011) 195 Cal.App.4 th 648, (also in the Fourth District, Division 3), to the extent an alternative title is necessary, the claim should be pled as a “quasi-contract.” The Court in Munoz v. MacMi...

Excerpt: ...does not plead any misleading or untrue publiclydisseminated advertising. Therefore, the demurrer is SUSTAINED. Unless Cross- Complainant can establish at the hearing how it can plead a valid claim, the demurrer will be SUSTAINED without leave to amend. (See, Hendy v. Losse (1991) 54 Cal.3d 723, 742 [If a party cannot amend to state a valid cause of action, or the party opposing the demurrer cannot state how a valid cause of action can be pled, w...

Excerpt: ...Procedure sections 1285.4 and 1286, as it sets forth the substance of the agreement to arbitrate, identifies the name of the arbitrator, and attaches a copy of the Arbitration Award. Therefore, the Petition to Confirm the Arbitration Award is GRANTED. However, Defendants' Petition to Correct the Arbitration Award to include costs of $2,172.81 is DENIED. Defendants have not established this request is proper pursuant to Code of Civil Procedure sec...

Excerpt: ...ot reiterated when all Defendants collectively Answered Plaintiff's First Amended Complaint…”.) The request to adjudicate Issue No. 2 is DENIED, as the admissible evidence supports conflicting inferences, which require resolution by a jury. “The question of whether an employment relationship exists ‘is generally a question reserved for the trier of fact...” (See Brassinga v. City of Mountain View (1998) 66 Cal.App.4 th 195, 210.) “Thi...

Excerpt: ...these documents and their legal effect. Although the court takes judicial notice of the existence of the documents and the clear legal effects, the court is not required to accept the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) As to the 1 st COA (breach of contract and anticipatory breach), this COA is sufficiently pled in paragraphs 33, 41, 44, and 45. Defendants...

Excerpt: ...mination that as a matter of law no duty is owed to the plaintiff is particularly common in situations in which the defendant's responsibility for the activities of third persons is involved. (Richards v. Stanley (1954) 43 Cal.2d 60, 67 [271 P.2d 23].) Among the various policy considerations whose aggregate effect comes to be stated in terms of the legal conclusion that there is a “duty,” foreseeability of the risk actually encountered is of ...

Excerpt: ...or “Hit and Run,” and California Vehicle Code § 20002 does not provide for a private right of action for violation of the statute. [While Defendant contends that leave should not be allowed, it appears that Plaintiff should be given an opportunity to allege a claim based on Defendant's alleged “hit and run.”] (2) Motion to Strike Portions of Second COA: Based on the Court's tentative to sustain the demurrer to the Second Cause of Action,...

Excerpt: ...nt. A party opposing a motion for summary judgment or adjudication is required to file a responsive separate statement per Code of Civil Procedure section 437c (b)(3). The failure to do so is a sufficient grounds for granting of the Motion. However, the Court will provide Plaintiff with one last opportunity to cure this procedural defect. The responsive Separate Statement and Reply are to be filed pursuant to code as tied to the continued hearing...

Excerpt: ...T” as defined in the propounded Form Irogs is overbroad. However, the Court welcomes MP to serve Form Irogs, Set 2 with the definition of “Incident” as set forth in the Supplemental Declaration of Paul at ¶13, and reserves the right to impose significant sanctions should the dispute concerning this definition continue. (2-3) Cross-Complainant New Villa Valencia Mobile Estates Motions to Compel Further Supplemental Responses by Cross-Defend...

Excerpt: ...efendants' responses are inadequate, incomplete, and/or evasive; and their boilerplate objections appear to be without merit or too general. The motion is not opposed. The Court, however, declines to award monetary sanctions to Plaintiffs because they failed to give adequate notice as required under California Civil Procedure Code Section 2023.040. Specifically, the Notice of the Motion states only as follows: “Plaintiffs will further move the ...

Excerpt: ...uant to section 3482, “[n]othing which is done or maintained under the express authority of statute can be deemed a nuisance.” Cross-Defendant asserts that, pursuant to section 5975(a), its enforcement of its CC&Rs are expressly authorized by statute and, thus, cannot be deemed a nuisance. Initially, while section 5975(a) authorizes the enforcement of CC&Rs, it notably creates an exception for “unreasonable” provisions. Consequently, to t...

Excerpt: ...row No. 18-000821-AR. Defendants, however, have produced evidence showing the subject property is not currently in escrow and the property is currently only listed for sale. (See J. Ellis Decl., ¶20; see also Defendant Eugenia Ellis' Opposition which states the sale fell out of escrow but no declaration is attached to support this contention.) As such, the request for injunction appears to moot as there is no open escrow account and no sale is p...

Excerpt: ...to strike prejudgment interest is DENIED. At the pleading stage, the request for prejudgment interest is not “irrelevant, false or improper matter.” Prevailing Party is to give notice. ...

Excerpt: ... to paragraph 9). The Court OVERRULES Objection No. 1 to the declaration of D. Ratajczak (paragraph 9). Evidentiary Objections by JOHNSON in Reply: The Court OVERRULES the one evidentiary objection to the Declaration of J. Gerber. The Court SUSTAINS Objection Nos. 2 and 10 (sic) only to the Declaration of T. Halasz and OVERRULES all other Objections Nos., 1, 3-9, and 11-16. Sur-Reply Objections by Plaintiffs: The Court did not state that Plaintif...

Excerpt: ...urt finds good cause to hear this motion within 30 days of trial. Although Grapheex makes some arguments in opposition to the MSJ/SAI directed to its Complaint, it wholly fails to make any real arguments in opposition to the MSJ/SAI of PFS' FAXC. It simply says, these causes of action fail for the same reason as PFS' MSJ on Grapheex FAC. This is unacceptable. A memorandum of points and authorities must accompany every notice of motion except thos...

Excerpt: ...t prejudice. The moving papers fails to state what allegations are proposed to be deleted, and what allegations are proposed to be included. (CRC 3.1324(a).) In addition, the moving papers do not include a declaration stating: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earli...

Excerpt: ...etion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likeli...

Excerpt: ...ity phase. (2) Motion to Compel Further Response to Form Interrogatories: The Motion to Compel directed to Plaintiff's Form Interrogatories, Set One, No. 12.1 is GRANTED. Defendant El Toro Medical Investors, LP dba Lake Forest Nursing Center is ordered to provide a further response to this Interrogatory, which is fully responsive to the same, as required by Code of Civil Procedure section 2030.220(a), within 15 days-notice of this order. Addition...

Excerpt: ...tion using new legal theories of recovery based on the same operative facts from the prior complaints. (Id., ¶ 4a.) Counsel represents that the new legal theories of recovery were evaluated by counsel in late April 2018, through a review of prior discovery responses made by Plaintiff in this case. (Id., ¶ 4b-4c.) Counsel further represents that the requested amendment was not made earlier because the case was transferred from multiple departmen...

Excerpt: ...P to give notice. ...

Excerpt: ...le presumption that the service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal. App. 4th 789, 795.) “Because of the statutory presumption, defendant was thus required to produce evidence that he was not served.”(Am. Exp. Centurion Bank v. Zara (2011) 199 Cal. App. 4th 383, 390.) Here, to rebut the presumption of proper service, Defendant ZHEN HONG SHAO produced evidence he was not personally served as indicated in the 1...