Excerpt: ...erruled. 2nd COA for Intentional Misrepresentation and 3rd COA for Negligent Misrepresentation These claims are premised on the same two “categories” of misrepresentations. The first is that “Cross-Defendants” made a false representation in applications for payments, stating that: “The undersigned Contractor certifies that to the best of the Contractor's knowledge, information, and belief the Work covered by this Application for Payment...

Excerpt: .... They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.'” Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 (citation omitted) (original emphasis). “Whether a duty of care exists is a question of law for the court, not the jury.” Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515. “In order to determine the boundaries of the duty...

Excerpt: ...cil. (Code Civ. Proc., § 1034, subd. (a), CRC, rule 3.1700.) The relevant Rule reads in pertinent part: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment...

Excerpt: ...) the current TCUV Regional Manager for Los Angeles; (2) the current San Francisco TCUV manager; and (3) the San Francisco Region TCUV Manager while Mr. Lee was the Los Angeles Regional TCUV Manager. The specific questions are stated verbatim in the Plaintiff's Separate Statement in support of this Motion. See ROA #116. For the reasons set forth below, the Motion is GRANTED. The deponent is ordered to answer each of the following three questions,...

Excerpt: ...ter the discovery cutoff date. Moving Parties also seek monetary sanctions against Plaintiff and his counsel. As an initial matter, the Court notes that Moving Parties cite only to Code of Civil Procedure section 2030.090 in support of their motion for a protective order. Section 2030.090 only applies to interrogatories and the discovery at issue also includes requests for admission (section 2033.080) and requests for production (section 2031.060...

Excerpt: ...e Civ. Proc., §§ 473(b) (A motion for relief from default under this section “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted...”) and 473.5(b) (The party seeking to set aside default under this section “shall serve and file with the notice a copy of the answer, motion or other pleading proposed to be filed in the action.”) Chu did not submit a c...

Excerpt: ...arbor provision had been complied with – a question raised by the Court in its tentative ruling issued prior to the 6/29/20 hearing. Accordingly, the Court continued the hearing and now proceeds to rule on the merits, as follows: National's motion for monetary sanctions under CCP Section 128.7 is denied. Based on the totality of the file and record in this case, the Court does not find monetary sanctions appropriate and exercises its discretion...

Excerpt: ...ending Motion to Amend. It does not appear that Plaintiff ever filed any Third Amended Complaint in response to the Court's 2/3/2020 Minute Order, much less one that attempts to address and remedy the defects in the pleading that were noted by the Court in its 2/3/2020 Minute Order. Nor did she provide a copy of a proposed Third Amended Complaint with this Motion. It is not clear to the Court why Plaintiff opted to file this Motion to Amend, rath...

Excerpt: ...continuance to Plaintiff, the Court was unable to provide notice to Defendant because Defendant had not yet appeared. On 6/17/2020, the Court issued a Minute Order ordering Plaintiff to promptly give notice of continuance of the hearing to Defendant and to promptly file a proof of service. 6/17/2020 Minute Order. Plaintiff has not filed any proof of service showing a notice of continuance was properly served. However, on 6/18/2020, default was en...

Excerpt: ...cil. (Code Civ. Proc., § 1034, subd. (a), CRC, rule 3.1700.) The relevant Rule reads in pertinent part: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment...

Excerpt: ...040. Id. The court, for good cause shown, may make any order that justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code Civ. Proc. § 2025.420(b). Further, under Code Civ. Proc. § 2019.030, the court may restrict discovery where it is “unreasonably cumulative or duplicative.” Code Civ. Proc. §2019.030(a)(1). Generally, a party seeking a protective order will b...

Excerpt: ...ons. Section 877.6 applies to a settlement between a plaintiff and an alleged tortfeasor or obligor under a contract in an action in which the tortfeasor is an alleged joint tortfeasor with another or the obligor is a co-obligor under the same contract with another. Cal. Code Civ. Proc. § 877.6(a)(1). Section 877.6 allows a settling defendant to obtain a determination that his settlement is in good faith, and thus to bar an action for equitable ...

Excerpt: ...ed are premised on its contention that under the written terms of the retainer agreement it is entitled to 33.3% of $250,000. But the facts established by Plaintiff's own evidence is that Rawag discharged Plaintiff before the settlement was agreed to and before the settlements were paid. [Smaili Decl, ¶¶ 12- 16.] By the terms of the retainer agreement – which on the face of the agreement appear to survive the handwritten emendations – as th...

Excerpt: ...d Gonzalez and Good Affair's reply may not have been properly served on The Irvine Company, LLC. Unless the Irvine Company objects to improper service of the Reply and seeks to continue the hearing for that reason, the Court denies the motion for the reasons set forth below. Anthony and Jamie (collectively, “The Romeos”) commenced this action on 10/5/2018 (“Romeo Action”). The Romeos' complaint alleges three causes of action against Good ...

Excerpt: .... Specifically, the parties may file a Supplemental MPA (and declaration(s)) in support of the Motion, a Supplemental Opposition (and declaration(s)), and a Supplemental Reply – all within the time periods prescribed by the Code based on the new hearing date. However, any supplemental MPA and opposition shall not exceed 7 pages, and the supplemental reply shall not exceed 4 pages. There is no precise yardstick for measuring “good faith” of ...

Excerpt: ...ichfield 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.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is...

Excerpt: .... Meister v. U.C. Regents (1998) 67 Cal. App. 4th 437, 448-49. The court determines a lodestar figure based on a careful compilation of the time spent and reasonable hourly compensation of each attorney involved. Serrano v. Priest (1977) 20 Cal. 3d 25. A reasonable fee is determined in the trial court's discretion. PLCM Group v. Drexler (2000) 22 Cal. 4 th 1084. To determine reasonable attorneys' fees, the court should consider the nature of the ...

Excerpt: ...notes that Grosch objected to the motion as being untimely, and he also argued that Newman “waived” the right to the protection of the anti-SLAPP statute. As to the former, the Court finds the motion was not untimely because the cross-complaint was served, by mail, on 10/22/19. (ROA 11.) Thus, Newman had through 12/26/19 to bring this motion. (Code Civ. Proc. §§ 425.16(f). 1013(a).) Newman timely filed this motion on 12/20/19. (ROA 19.) As ...

Excerpt: ...ith. Plaintiff's request to strike/tax $16,500 for expert witness fees is denied. Plaintiff has shown that Defendant's CourtCall fees were not reasonably necessary to the conduct of litigation. Plaintiff's request to strike/tax $266 for CourtCall fees is granted. The prevailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032. To claim costs, the prevailing party must file and serve a memorandum ...

Excerpt: ...ought, including any agreements to narrow the requests set forth in the subpoena. The parties have now advised the Court that Defendant has agreed to provide further discovery responses regarding ASAS Group's corporate structure (including the identity of its shareholders, directors and officers) and regarding Defendant Sadruddin's involvement in the company as the only shareholder, director and officer. SO ORDERED. For its part, Plaintiff has cl...

Excerpt: ... other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case,. . . .” (Emphasis added.) The court also may, sua sponte, order bifurcation or severance of an issue at any time, including after the trial has commenced. See Buran Equip. Co. v. H & C Invest. Co. (1983) 142 Cal. App. 3d 338, 343. Beyond Section 598, CCP Section 10...

Excerpt: ... and 17. The Court finds that Plaintiff's testimony as to what the assailant said to him just before the attack is admissible under Evidence Code §1237. Merits 1. Negligence and Premises Liability As an initial matter, Defendant inserts in its separate statement that it did not own, lease, occupy, or control the premises. But this is properly disputed by employee Mr. Benitez' testimony, the same employee who provides a declaration in support of ...

Excerpt: ...e Civ. Proc. § 1281.2 provides, inter alia: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitr...

Excerpt: ... of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a compl...

Excerpt: ...ch addresses the issues within the exclusive jurisdiction of the Probate Department. (Probate Code §17000 and Probate Code §17200(b)). Plaintiff shall inform the Court in writing, no later than April 6, 2020, whether such an action has been commenced. Pursuant to Probate Code §17000(a), “[t]he superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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 ...