Excerpt: ...t or to the Court's conclusion. For the reasons set forth below, the Petition for Writ of Administrative Mandate, or alternatively, Writ of Mandate is DENIED. The parties do not appear to dispute the controlling legal authority. The standard of review on administrative mandamus is independent review. Strumsky v. San Diego County Employees' Retirement Association (1974) 11 Cal.3 rd 28, 32. Under the independent review standard, the trial court det...

Excerpt: ...eposition per the parties' stipulated agreement. Therefore, Plaintiff's Motion to compel Mr. Godsey's deposition is moot. Mr. Godsey is already under a court order to appear for deposition on April 30. Next, the parties dispute whether Defendant must produce documents at the time of his deposition appearance. In this regard, the Court notes that Defendant already represented to the Court that is has agreed or stipulated to produce certain, unspec...

Excerpt: ...ED. Even if Plaintiff is correct that there is no proper agreement to accept electronic service, Plaintiff received the opposition and responded to it on the merits; thus, any service defect is waived. Plaintiff has not been prejudiced by any defect. General Law “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or ...

Excerpt: ...t confidential and under seal. (Eyerly Decl., if 6.) As such, a contractual obligation not to disclose constitutes an overriding interest overriding the minimal public interest, which supports partially sealing the record with respect to the settlement amount. (See Universal City Studios, Inc. v. Sup. Ct. (2003) 110 Cal.App.4th 1273, 1283 ("We agree with defendant that its contractual obligation not to disclose can constitute an overriding intere...

Excerpt: ...equest to change the fire pits in 2008 and Plaintiff did not file this action until 2017. (Dem. at 7-8.) Generally, there is a two-year statute of limitations to file suit for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Code Civ. Proc. § 335.1. The statute of limitations begins to run when the cause of action accrues. Code Civ. Proc. § 312. Under the “delayed disco...

Excerpt: ...n to rule on the Demurrer, future demurrers that violate this rule may be disregarded or overruled. The demurrers to the 6 th (lack of proximate cause), 31st (failure of consideration), 32nd (want of consideration), 34 th (excuse), 36th (lack of mutual consent), 37th (lack of present intent to contract), and 38 th (lack of definite terms of contract) affirmative defenses are overruled. These purported “affirmative defenses” merely negate esse...

Excerpt: ...ions Code Sections 309, 7231 and 5047.5. At the outset, it should be noted that the Members have cited to the wrong Corporations Code sections. WVA is an unincorporated association, not a corporation. (Compl. at ¶ 7.) The provisions affecting unincorporated associations, such as WVA, are found under Title 3 of the Corporations Code, beginning with section 18000. As under common law, a member, director, officer, or agent of an association is not ...

Excerpt: ...llage Association (“WVA”) to Plaintiff John Sanderson's Second Amended Complaint (“SAC”) is overruled. 1st COA - Negligence WVA contends Plaintiff's negligence claim is barred by the two-year statute of limitations because Plaintiff's claim accrued when the board denied his request to change the fire pits in 2008 and Plaintiff did not file this action until 2017. (Dem. at 7-8.) Generally, there is a two-year statute of limitations to file...

Excerpt: ... admissions by Defendant as to the amounts owed by it under each invoice. Defendant denied the amounts owed. At trial, the jury found for Plaintiff and awarded it the amounts sought under each invoice. If a party “fails to admit” the genuineness of any document or the truth of any matter when requested to do so, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party...

Excerpt: ...ed to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at p. 851. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine I...

Excerpt: ... Set One 3. Form Interrogatories, Set Two 4. Requests for Production of Documents, Set One The Court also grants Defendant's unopposed motion to deem Requests for Admissions, Set One, admitted. The Court orders Plaintiff to provide verified responses to (a) Form Interrogatories, Set One; (b) Special Interrogatories, Set One; (c) Form Interrogatories, Set Two; and (d) Requests for Production of Documents, Set One, all within 20 days of notice of t...

Excerpt: ...a proper subject for judicial notice. California Public Policy In California, an employee's covenant not to compete with his or her employer is unenforceable. B&P Code § 16600 (“every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”); Edwards v. Arthur Andersen (2008) 44 Cal.4 th 937, 945. “California has a strong interest in protecting its employees from no...

Excerpt: ...e record reflects -- and it is not disputed -- that both Defendant and Plaintiff have their principal place of business in Los Angeles, they are both headquartered in Los Angeles, and the contract that is the subject of this action was executed in Los Angeles. Additionally, that contract contains a dispute resolution provision stating that “if the mediation is unsuccessful, the matter will be resolved in the appropriate California State Court i...

Excerpt: ...llegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (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 n...

Excerpt: ... Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at p. 851. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App. 4th 383, 388. If p...

Excerpt: ...itne to produce all records in his possession or control regarding plaintiff Jesse Castillo Ruiz at the same time and place as his deposition.” But the Subpoena, attached as Exhibit A to the Declaration of Kevin R. Jolly, Esq., is not a business records subpoena. It requests no documents; it is for appearance only. There are no categories of documents identified in the Subpoena. In addition, there are no categories of documents identified in th...

Excerpt: ...m in the Complaint and, in response to representations by Plaintiff' counsel that it could allege additional facts to cure the defect, the Court granted leave to amend. Plaintiff has added only conclusory language that the retention of the $1,070 commercial security deposit was “intentional” and “unlawful” etc. First, damages for failure to return a commercial security deposit are governed by CC § 1950.7. For the “bad faith” retentio...

Excerpt: ...ws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Code Civ. Proc. § 431.10(b). Plaintiff's Complaint fails to state sufficient facts to support a claim for punitive damag...

Excerpt: ... the burden is on the moving party to show both: • Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and • Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). Glenfed Develop. Corp. v. Sup.Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 CA4th 1113, 1117; see also ...

Excerpt: ...ied, it will be necessary to file a new action to enforce the terms of the settlement agreement.” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 12(II)-F at ¶ 12:982 (inner citations omitted). A court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Co...

Excerpt: ...se” for the production, Code Civ. Proc. § 2031.310(b), and Defendants did not object to any of the demands. Defendants are ordered to provide further responses and production within 15 days. Defendants are ordered to pay $1,120 in sanctions to the Law Office of Dean P. Sperling within 30 days of the notice of ruling. Code Civ. Proc. §§ 2023.010, 2031.320. Motion to Deem Requests for Admissions and Genuineness of Documents Admitted Plaintiffs...

Excerpt: ...ed orders with corrections to section 8 regarding future hearings. The Court notes that the proposed order does not mention the pending motion to consolidate or motion to strike, and the dates for the CMC and pending demurrer are incorrect. The Court further notes that any order that might be entered relieving counsel would not become effective until counsel filed with the Court proof that it had serve the order relieving it on the clients. ...

Excerpt: ... See Award Metals, Inc. v. Superior Court(1991) 228 Cal.App.3d 1128, 1134-1135 (claims for negligence and intentional tort were merely a “duplication” of the claim for violation of Labor Code section 4558 and should have been sustained); Palm Springs Villas II Homeowners Ass'n, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 (trial court properly sustained cause of action for breach of governing documents which appeared to be duplicative of bre...

Excerpt: ...ee Agreement with her former attorneys is contradictory and ambiguous and has an unmet contingency that requires dismissal of cause of action. The Court disagrees. Paragraph 6 of the Agreement provides that if there is no recovery (i.e. if Plaintiff gets no money) then she is still responsible for costs incurred by B&B. There is no unmet contingency. Further, paragraph 4 addresses legal fees in the event of a recovery of some kind. The two paragr...

Excerpt: ...s lengthy preamble to the argument, which purports to set forth a number of facts that are extrinsic to the Cross-Complaint. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A. Third Cause of Action for IIED In his Motion, Eladio argues that the third cause of action parrots the eleme...