Excerpt: ...ot accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.” Assuming a valid Section 998 offer, it...

Excerpt: ...at Tesla. (¶2 of Kim Declaration). Mr. Kim attaches the Sales Contract executed by Plaintiffs and “stored by Defendant in an electronic file containing all documents related to the subject transaction.” (¶3 of Kim Declaration). Mr. Kim declares the document was kept in the ordinary course of business. (Id.). In Opposition to the Motion, Plaintiffs challenge this showing, asserting “Tesla has failed to submit admissible evidence demonstrat...

Excerpt: ...he three causes of action asserted in Plaintiff's SAC. The SAC alleges the Bank failed to properly issue Plaintiff voting common stock, pursuant to written stock warrants the Bank had issued and that Plaintiff had acquired from the prior warrant holder – and that, instead, the Bank issued non-voting stock. More specifically, Plaintiff alleges that on or about November 1, 2010, the Bank issued a warrant for 1,395,000 shares of its common stock t...

Excerpt: ...ing filed by Plaintiff and Defendants, the Court declines to permit the filing of the proposed supplemental complaint, because the proposed causes of action are not “supplemental” within the meaning of CCP section 464(a). “It is the function of a supplemental complaint to set up facts material to the case occurring after the filing of the former complaint. It is not allowable to substitute a new and distinct cause of action by way of supple...

Excerpt: ...ion of her deposition by The First Christian Church of Mission Viejo (the “Church”) was properly served. The Church opposed Plaintiff's motions and did not object to the motions on the ground of improper service. The Court will address all motions on the merits. However, the Court orders all parties, at or before the hearing, to file Code- compliance proofs of service for all papers they have filed in connection with these motions. The Court ...

Excerpt: ...ories. Cross-Complainant's motion to compel compliance with RFP responses and for further responses to RFPs is granted. Cross-Complainant's motion to compel further responses to RFAs is granted. Cross-Complainant is awarded total sanctions of $2,500 against Cross-Defendant. Service of the Motions Cross-Defendant objects that he was not timely served with the motions as he only received by them by email on 1/21/20. But, in addition to the proofs o...

Excerpt: ...se of action is for premises liability; the third is for negligence. The Motion is DENIED. Plaintiff's evidentiary objections are all overruled. Downtown Anaheim's evidentiary objections are sustained as to Nos. 33, 34, 40, 41, and 43 and overruled as to the remainder. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled t...

Excerpt: ...Kim, Rebekah Rhyoo (“Rhyoo”), and Tracy Shin (“Tracy”) (collectively, “Demurring Defendants”) demur generally and specially to the fourth cause of action for breach of fiduciary duty and sixth cause of action for unfair business practice in violation of Business & Professions Code section 17200. The Court notes that judgment has already been entered against defendant Jung Hun Kim (erroneously sued as Jung Hoon Kim), pursuant to the pa...

Excerpt: ...overruled. Defendants requested judicial notice of a “Property Information Sheet” and an “Amendment to Escrow Instructions and/or Purchase Contract” in connection with its moving papers. While courts may take judicial notice of “the existence of a document,” it is well-settled that “the truthfulness and proper interpretation of the document are disputable.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, ...

Excerpt: ...f contract. The demurrer to the first cause of action for fraud is overruled. “A complaint for fraud must allege 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; CACI 1900.) Fraud must be pled with specificity. (Philipson & ...

Excerpt: ...t of the deed of trust by MERS to The Bank of New York Trust Company was “void” because it was not signed by a MERS employee with authority. The California Supreme Court recently held a plaintiff may challenge an assignment of a deed of trust when the allegations, if true, would render the assignment “void, and not merely voidable at the behest of the parties to the assignment ....” Yvanova v. New Century Mortg. Corp. (2016) 62 Cal. 4th 9...

Excerpt: ...ressed by the Family Law court in April 2020). This leads this Court to pose the question whether any of Plaintiff's claims in this action involve community property or potential breaches of fiduciary duties with respect to community property. The parties shall appear at the hearing to address this preliminary issue. The demurrer by Defendant Kristi Sar (“Defendant”) to the second and fifth causes of action in the First Amended Complaint of P...

Excerpt: ...to oppose the demurrer can be treated as an implied concession to the merits of the same. Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. CRC 3.1113(a). Thus, the court can and does sustain the demurrer on these grounds. In addition, the Court sustains the demurrer on the additional ground that it has merit. A public entity is not l...

Excerpt: ...r Code Civ. Proc. § 425.16(c)(1) after Dismissal Section 425.16 of the Code of Civil Procedure (“CCP”) provides that a prevailing defendant on a special motion to strike is entitled to recover reasonable attorney fees and costs. Code Civ. Proc. § 425.16(c); City of Los Angeles v. Animal Defense League (2006) 135 Cal. App. 4th 606, 627. When a plaintiff voluntarily dismisses the action after the SLAPP motion has been filed and before the tri...

Excerpt: ... overbroad, vague and ambiguous, seeks information outside the scope of discovery, and violates the privacy rights of both ASAS and Sadruddin; (2) the subpoena is overbroad, vague and ambiguous because it refers to “any named parties or entities” without defining who those named parties or entities are; (3) the subpoena is premature because it seeks Defendants' financial information in violation of Civil Code section 3295(c) and because there...

Excerpt: ...e interrogatories to request the identity and location of those with knowledge of discoverable matters.”). The party responding to interrogatories must answer in a manner as “complete and straightforward as the information reasonably available” permits; if the interrogatory cannot be answered completely, then it must be answered to the extent possible. Code Civ. Proc. § 2030.220(b). A party may file a motion to compel further responses to ...

Excerpt: ...o arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement--either fraud in the execution...

Excerpt: ...ff, within 30 days, the sum of $1,225, which is the amount the Court finds reasonable. The Request for Judicial Notice is denied as unnecessary. (See Cal. Prac. Guide, Civil Procedure before Trial §9:53.1a (“It is not necessary to ask the court to take judicial notice of materials previously filed in the case”; all that is necessary is to call the court's attention to such papers. Such papers however, are not necessarily admissible evidence....

Excerpt: ...t; and may, upon like terms, enlarge the time for answer or demurrer. Code Civ. Proc. § 473(a)(1). The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. Code of Civ. Proc. § 473(a)(1). Additionally, any judge, at any time before or a...

Excerpt: ...ief discussion of the pertinent case history is helpful. The case began with the Complaint filed by Plaintiff Golden Rain Foundation of Laguna Woods (“Golden Rain”) against Dickinson. Golden Rain ultimately dismissed its Complaint with prejudice on 12/27/2018. In the meantime, however, Dickinson had filed a Cross-Complaint against Plaintiff on 11/14/2018. Shortly after, Dickinson filed a First Amended Cross-Complaint (“FACC”) on 12/12/201...

Excerpt: ...acts that could allege in good faith to cure the defects noted below. The Insurer Defendants demur to Plaintiffs' first cause of action for reformation, second cause of action for declaratory relief, and third cause of action for breach of contract. In their FAC, Plaintiffs allege that the Insurer Defendants were the insurer for Defendants Ryan and Katherine Schierberl (the “Schierberls” or the “Schierberl Defendants”) and, as such, they ...

Excerpt: ...led together and noticed for the same hearing. Filing a motion to strike does not extend the time within which to demur. [CCP § 435(b)(3), (d).] If both a demurrer and motion to strike are filed, they must be filed at the same time and noticed for hearing at the same time. [CRC 3.1322(b)]. Here, Defendant did not ensure that its Motion to Strike was concurrently set with the Demurrer. Further, failure to state facts sufficient to state a cause o...

Excerpt: ...o the common area is granted. Plaintiff Penny Patino, who owns the unit in question, filed two documents in opposition to the motion. Both “opposition” papers are untimely, and the Court declines to consider either of them. Litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. See Rappleyea v Campbell (1994) 8 Cal.4th 975, 984- 985; Nwosu v Uba (2...

Excerpt: ...mains at issue is a series of redactions (all on the basis of attorney work product), which are reflected on a one-page, revised privilege log, Exhibit 2 to the Declaration of Robert Hubbell. Plaintiff's motion initially contended that KPMG, the former independent auditor for Defendant Banc of California, Inc. (the “Banc”), improperly redacted and withheld documents pursuant to Defendant's instructions, failed to produce subpoenaed communicat...

Excerpt: ... the complaint, and Plaintiff did not oppose. By Minute Order dated 4/29/2019, the Court sustained Defendant's demurrer to all three causes of action, with leave to amend. The Minute Order found that Defendant's demurrer had merit, stating: “Plaintiff fails to allege whether the alleged contract was written, oral, or implied; nor does she allege the terms of the contract or the legal effect of the contract. (See Miles v. Deutsche Bank National ...