Excerpt: ...Electronics Corp. (2008) 169 Cal.App.4th 116, 134; see also SAC, ¶8.) Plaintiff has still not alleged facts showing class action tolling, delayed discovery, equitable tolling/estoppel, repair doctrine, or fraudulent concealment. (See Am. Pipe & Const. Co. v. Utah (1974) 414 U.S. 538; Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808- 809; Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370, 373; Community Cause v. Boatwright (1981) 124 ...

Excerpt: ...Wintec alleges Skyworks sold it Blackberry phone components for resale, despite knowing no resale market existed for the obsolete products. (See Van Niekerk decl., Ex. B ¶¶ 1, 6-8, 20-25.) While the cases may have overlapping witness lists, they arise out of different contracts and present different factual and legal issues. RTAO/Writ of Attachment Plaintiff Skyworks Solutions, Inc.'s application for a right to attach order and writ of attachme...

Excerpt: ...Ratings LLC (June 13, 2019, G055429) [nonpub. opn.].) “[W]here a written contract expressly provides for the award of attorney fees, the prevailing party in an action under or relating to the contract is entitled to recover its fees, whether incurred at trial or on appeal.” (Starpoint Properties LLC v. Namar 201 (2011) Cal.App.4th 1101, 1111.) Motion for Attorney Fees (Enforcing Judgment) Cross-complainants attorney fees motion is granted. Cr...

Excerpt: ...ry sanctions to plaintiffs within 30 days of notice. (See Code Civ. Proc., §§ 2031.310, subd. (h).) Defense counsel is included in the sanctions order for its failure to meet and confer in good faith. (See Code Civ. Proc., § 2023.010, subd. (i); 2023.020; see also Morse Decl. ¶¶ 7-9.) Defense counsel asserts in a declaration: “Rather than narrow the scope of the requests at issue, Plaintiff flatly demanded that GM withdraw its objections a...

Excerpt: ...ity (2012) 208 Cal.App.4th 1125, 1135.) 2rd cause of action, breach of lease. The complaint states facts sufficient to constitute this claim. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) The complaint does so. (Compl. ¶¶ 4, 22-24.) 3rd cause of action, bad ...

Excerpt: .... reasonable attorneys' fees and expenses.” (8/22/19 Jones decl., Ex. 1 ¶ 12.9.) Notably, this is not an action on the written contract containing the attorney fee clause. (Cf. Civ. Code, § 1717.) This is instead an action on alleged oral agreements and for equitable contribution. Nonetheless, the attorney fee clause is “phrased broadly enough” to support an attorney fee award to the prevailing party here. (See Santisas v. Goodin (1998) 1...

Excerpt: ... 826, 850-851.) First, defendants fail to “completely dispose[] of” the claim. (Code Civ. Proc., § 437c, subd. (f)(1).) “‘If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them.'” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 163.) Defendants fail to address numerous allegations supporting the punitive damages claim, including:  Bisio knew...

Excerpt: ...a triable issue of material fact. (See Code Civ. Proc. § 437c, subd. (p)(2); Aguilar, supra 25 Cal.4 th at 849-850). Defendant's motion expressly relies on plaintiff “looking where she was walking” (Def. SSUF #2.) By including this fact in the separate statement, defendant represented that it was in fact material. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; see also Cal. Rules of Court, rule 3.1350(d)(2).) Plaintiff ...

Excerpt: ...191, subd. (a).) The complaint alleges defendant ordered goods from plaintiff, who manufactured and shipped them to defendant, who failed to pay for it. (Compl. ¶¶ BC-1. BC-2.) Defendant offers scant evidence this contract involved intrastate commerce. Defendant fails to show plaintiff negotiated the deal in California, manufactured the goods in California, or shipped them within California. Defendant ties plaintiff to California only by statin...

Excerpt: ...ting the initial papers seeking summary judgment on the complaint, preparing the trial brief re complaint, calculating prejudgment interest on the judgment on the promissory note, and asserting the parol evidence argument on appeal to preserve the judgment on the complaint. For this work, plaintiff incurred a reasonable number of attorney fees at a reasonable rate. (See generally PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) Notably, the M...

Excerpt: ...tate facts sufficient to constitute this cause of action. It fails to allege plaintiff's reliance (i.e., plaintiff would not have acted as he did had he known the truth) with specificity. (See Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634 [elements].) 5th cause of action, conspiracy. Civil conspiracy is not an independent tort. (See City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 129.) Because the underlying fraud is not a...

Excerpt: ...ings.” (See 11 USC § 157, subds. (b)(2).) Defendant presents no evidence the subject of the wrongful foreclosure action has filed a claim against the estate. (See 11 USC § 157, subd. (b)(2)(C).) More basically, a party may “pursue [its] bankruptcy-related fees in state court” after “dismissal of the bankruptcy case restored to the parties their preexisting rights and remedies.” (Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 936.) Defen...

Excerpt: ... subds. (b); see also City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Defendants showed those causes of action arise from a “written statement . . . or writing made before a . . . judicial proceeding” – namely, disclosures in their 6/3/19 responsive brief. (Code Civ. Proc. §425.16, subd. (e)(1); accord G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 612-616 [claims based on filing unredacted documents]; see Heller decl. ¶¶ 8-16 & E...

Excerpt: ...e inaccurate. Recorded documents contradict the allegation that defendant lacks the power to foreclose. (See Def. RFJN Ex. C; see also Scott v. JPMorgan Chase Bank, NA (2013) 214 Cal.App.4th 743, 751). The assignment of a deed of trust need not be recorded. (See Haynes v. ENC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336-37). To the extent this claim is based upon Civ. Code § 2024.12, as of 2017 no such private right of action existed. 2nd caus...

Excerpt: ...gful use with the intent to defraud or by undue influence, or causation or harm. (See Welf. & Inst. Code, §§ 15610.30.) The claim is also time-barred by the 2-year statute of limitations. (See Code Civ. Proc., § 335.1.) Decedent was aware of the underlying facts and her damages by 12/23/13. (See Def. RFJN, Ex. A.) But this action was not filed until 1/4/18. 2nd Cause of Action, Deceit. The SAC fails to state facts sufficient to constitute this...

Excerpt: ...4th 631, 638, 645).) 4th cause of action, negligence. This claim alleging “wrongful conduct . . . while providing medical treatment, surgery and other healthcare services” is duplicative of the 1st cause of action for professional negligence. (See Code Civ. Proc., § 340.5(2); see also Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000.) Motion to strike Defendant Quang T. Vo's motion to strike is granted without ...

Excerpt: ...t in Santa Ana] with Demurrer Ex. B ¶ 3 [2015 auto accident in Laguna Niguel involving different people].) The FAC is hopelessly untimely. It was filed on 9/11/18 and alleges personal injuries suffered on 12/31/15. It is barred on its face by the 2-year limitations period. (See Code Civ. Proc., § 335.1; see also Mitchell v. California Department of Public Health(2016) 1 Cal.App.5th 1000, 1007.) Plaintiff has not shown any reasonable possibility...

Excerpt: ...AC asserts claims for money. Even the 4th and 5th causes of action for specific performance and constructive trust would not change defendant's legal title or right to possession. Defendant's request for judicial notice is granted. Demurrer The matter is abated. “[F]amily law cases should not be allowed to spill over into civil law.” (Neal v. Superior Court (2001) 90 Cal.App.4th 22, 25.) Defendant has shown the family law department holds “...

Excerpt: ...v. Frank (1990) 217 Cal.App.3d 94, 98- 99.) The delay appears to have been caused by unsuccessful settlement efforts, not by hiding the ball. While an earlier motion may have been more convenient, the court find no bad faith. Even if some or all of the proposed cross-claims were permissive, trying them with the complaint serves the interests of justice. (See Code Civ. Proc., § 428.50, subd. (c).) The parties should be prepared to discuss a conti...

Excerpt: ...But the FAC fails to state facts sufficient to constitute this claim. “‘[C]ourts have not extended the Molien direct-victim cause of action to emotional distress which is derived solely from a reaction to another's injury.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 131.) That is exactly what the FAC alleges. It asserts plaintiff Angelique Lynch “suffer[ed] severe emotional distress upon seeing the body of [her h...

Excerpt: ...etermined whether to consider it. (See Cal. Rules of Court, rule 3.1300(d).) 2. Reviewing only the moving papers thus far, plaintiffs' respective responses to the 12 document demands are sufficient. Plaintiffs verify they produced all responsive documents. Defendant doesn't believe that. But its incredulity doesn't entitle it to sanctions. It offers no contrary evidence that plaintiffs actually have possession, custody, or control of any withheld...

Excerpt: ...nk of San Francisco v. Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1527; see also Hassan decl. ¶ 4; Ocwen's RFJN Ex. 9.) Plaintiffs' attempt to relitigate these claims is also untimely. Plaintiffs knew or reasonably should have known of their claims by the time they filed their 2012 case, if not by their 2009 default or the 2006 loan. And plaintiffs have not alleged how they have been injured. Their loan is still outstanding; the ba...

Excerpt: ...nts to an incorrect address – where someone signed for them. Had no one signed for the documents, the agent would have been on notice to confirm defendant's address – as it did when its subsequent mail to defendant was returned as undeliverable. While defendant could have better ensured its agent had the correct address in the first place, it had no control over its FedEx package being accepted and signed for by a stranger. Defendant's neglec...

Excerpt: ...leged documents in its possession, custody, or control within 20 days. Defendant Kindred Healthcare Operating Inc. shall serve complete, code-compliant, verified further responses -- without objection other than attorney-client privilege, work-product protection, third-party privacy, or Evidence Code section 1157 -- to plaintiff's requests for production #14 and 23 within 10 days, and shall produce all responsive, nonprivileged documents in its p...

Excerpt: ...act Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1262.) In their briefs, each party recognizes different ways in which the subpoena might be limited. They should continue exploring the specific information that defendants seek and plaintiff's exact concerns about that specific information. There is reasonable middle ground here. The court is confident the parties can find it. The court anticipates this matter will be resolved before Mond...