Excerpt: ...e, surprise, or excusable neglect. CCP § 473(b); .” Dominquez v. Butte Cty., 241 Cal. App. 2d 164, 167 (Ct. App. 1966). In certain instances, the six-month time limit may be “extended” if the default was entered through extrinsic fraud or extrinsic mistake. Sporn v. Home Depot USA, Inc. (2005) 126 Cal. App. 4th 1294, 1300-01; Kulchar v. Kulchar (1969) 1 Cal. 3d 467, 471-72. In the present matter, as Defendants did not file their Motion unt...

Excerpt: ...of the relationship between attorney and the client that precludes continued representation. The Motion of Attorney Greer to be relieved from representing Plaintiff Darling therefore is properly GRANTED. (See Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014, “To protect the best interests of the client, a trial court should have broad discretion in allowing attorneys to withdraw. In the case at bar, the court granted appellants' motio...

Excerpt: ...ment, a moving defendant must “present evidence that would require such a trier of fact not to find any underlying material fact more likely than not….” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, emphasis added.) The court must ‘consider all of the evidence and all of “the inferences reasonably drawn therefrom…. and must view such evidence….in the light most favorable to the opposing party.” (Id. at 843, 844-45...

Excerpt: ...s extent there is no request to enter a judgment that differs from the verdict. In fact, that finding is not being challenged. Motion For Leave to Amend to Add Claim for Dissolution of Partnership– DENIED Just after the reading of the verdict, counsel for plaintiff made an oral motion in court for dissolution and/or leave to amend the operative complaint. In denying this motion, the Court is not finding that that Plaintiff is barred from seekin...

Excerpt: ...ysical deficiency in the property itself. (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 130–132.) There must also be a causal relationship to the third party conduct that injured the plaintiff, and a feature of the public property that “increased or intensified” the danger from that third party conduct. (Id.) Liability may not be based on the mere failure to provide a warning sign or traffic signal. (Gov. Code §§ 830.4,...

Excerpt: ...rst, Plaintiff's cause of action for breach of the partnership agreement as pleaded in the operative complaint never sought as damages the value of Plaintiff's partnership interest, but only for unpaid lost profits. Second, none of the causes of action dismissed sought dissolution of the partnership. On 04/10/19, plaintiff voluntarily dismissed in open court all fourteen (14) causes of action asserted by him in his complaint filed 08/15/17 – sa...

Excerpt: ...for trial and/or facilitating resolution. Children's Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4 th 1260, 1276- 1277; in accord, Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4 th 1414, 1420. Neither relevance nor admissibility are the test. Maldonado v. Superior Court (2002) 94 Cal.App.4 th 1390, 1397. As it relates to personal matters, though, some limits apply. See Calif. Const. Art. 1,...

Excerpt: ...efendants' fact Nos. 3, 5, 8, 10, 11, 15, 17, 20, 22, and 23. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186. “On a defendant's motion for summary judgment, the defendant's burden is...

Excerpt: ...ant's conversion by a wrongful act or disposition of property rights; and (3) damages. Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4 th 1395, 1404-1405; Ananda Church of Self- Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4 th 1273, 1281. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has a...

Excerpt: ...the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. (Citations omitted.) However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Citations omitted.)” Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672. If a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any rea...

Excerpt: ...erified responses must be addressed in a motion to compel further responses, which must be accompanied by a separate statement. (See CRC 3.1345(a)(1).) To the extent that the Motion attempts to seek relief under §2033.290, it is denied without prejudice to a proper motion to compel further responses which complies with CRC 3.1345 and all related requirements. To the extent that this motion seeks relief under C.C.P. § 2033.280, it is now moot, e...

Excerpt: ...sanctions imposed against plaintiff in the amount sought of $1,750.00. In California, discovery is purposefully broad. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and common sense – might (1) be admissible, (2) lead to admissible evidence, or (3) reasonably assist that party in evaluating the case, preparing for trial and/or facilitating resolution. Children's Hospital Central Calif...

Excerpt: ...that a landlord merely failed to repair defective conditions is insufficient to support a punitive damages claim. (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 299-300.) Nor are facts alleged to support the claim that LL's conduct reflected oppression, fraud, or malice. A claim for punitive damages must be supported by specific factual allegations: conclusory characterization of conduct as “intentional, willful and fraudulent” is...

Excerpt: ...et and confer declaration, but no comparable requirement exists for a motion to quash. (C.C.P. § 1985.3(g).) On the merits, as the subpoena seeks financial records and information, privacy rights are at issue. (See Fortunato v. Sup.Ct. (Ingrassia) (2003) 114 Cal.App.4th 475, 480-481 [“there is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account i...

Excerpt: ...papers with the Court on August 6th but there is no proof of service of those documents. The Court is therefore continuing the hearing of the Motion with the following directions to counsel. Failure to adhere to these directions may result in the Court's denial of this Motion without prejudice. The hearing is CONTINUED to September 30, 2019 at 2:00 pm in this department. By Friday August 30, attorney Greer shall send (or re-send) to Mr. Darling c...

Excerpt: ... Casualty Co. (1987) 189 Cal. App. 3d 1102, 1110.) The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact an...

Excerpt: ...ution or the recording of an assignment of the deed of trust, “that gap does not alter the legal fact that the deed of trust and the right to foreclose [is], as a matter of law, transferred along with the note”. (Yudhai v. IMPAC Funding Corp.(2016) 1 Cal.App.5th 1252, 1260 n.6.) In addition, an assignment of a deed of trust does not have to be recorded. (Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 122; see also Haynes v. EMC Mort...

Excerpt: ...bout deterioration in his vision subsequent to obtaining his license. But that still does not suffice to demonstrate willful and despicable conduct. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [“malice, based upon a conscious disregard of the plaintiff's rights, requires proof that the defendant's conduct is ‘despicable' and ‘willful.'”].) The FAC also cites to Veh. Code §21954(b). But that provision pertains to pedestrian ri...

Excerpt: ...ally, as conceded by Defendant within this Motion, the instant Complaint sought recovery of “attorneys' fees and investigation costs, and/or penalties from Defendants, their successors, and assigns, as provided by California Civil Code Section 3496, and/or as otherwise permitted by law.” (See §4 of Prayer of Complaint; See also Motion: 4: 17- 19). While Counsel declares that Defendant Ohio House voluntarily vacated the subject premises in Au...

Excerpt: ...(“HSBC” together). Although the OSC directs the responding party to show cause why the preliminary injunction should not issue, the burden is on the moving party to show all elements necessary to support issuance of a preliminary injunction. O'Connell v. Superior Court (2006) 141 Cal.App. 4th 1452, 1481. The moving party has the burden to show that it is reasonably probable it will prevail on the merits. San Francisco Newspaper Printing Co. v...

Excerpt: ...ion commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Barris v. County of Los Angeles (1999) 20 Cal.4 th 101, 108; Tortorella v. Castro (2006) 140 Cal.App.4 th 1, 3. As this Court previously pointed out, pharmacies have a duty to reject facially non-compliant prescriptions, a...

Excerpt: ...ed upon an evidentiary conclusion that service of the summons was bad and that this Court never properly acquired personal jurisdiction over the defendant. The absence of personal jurisdiction renders the default judgment void ab initio, so on what basis is there to permit plaintiff to still use a void judgment? The first question this Court has, which was not addressed in the papers, is what impact does this Court's 11/09/18 order setting aside ...

Excerpt: .... The Court concludes that an overriding interest is shown that would overcome the right of public access to the record at this time; the overriding interest supports sealing the record in the present circumstances; in the given circumstances, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored; and a less restrictive means exist to achieve the ove...

Excerpt: ...d both such submissions. To compel arbitration, the moving party must prove by a preponderance of the evidence that a written agreement to arbitrate a controversy exists and that a party thereto refuses to arbitrate such controversy. (C.C.P. § 1281.2.) The provisions of the written agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) RPs assert...

Excerpt: ...7.1 was defective, as the answers were as to a different party's responses to a different set of RFAs. (Howard Decl. Exs. 1-4.) The Opposition attaches a revised response, with a POS showing a 5/14 service date. However, Advance claims that those responses were never received, and were first seen when reviewing the Opposition. In either event, the revised responses are also defective, as they are not properly verified, and the POS fails to comply...