Excerpt: ...ion moot. Service of a summons gives notice of the action and (potentially) secures personal jurisdiction. That need be done only once. No additional or amended summons need be filed when a complaint is amended. (See Engebretson & Co. v. Harrison (1981) 125 Cal.App.3d 436, 441 cf. Gillette v. Burbank Community Hosp. (1976) 56 Cal.App.3d 430, 433; but see Naylor v. Superior Court (2015) 236 Cal.App.4th Supp. 1, 4.) The summons served with the init...

Excerpt: ... notice. Motion to Compel #2. Defendant Alice Renae Ashwill's motion to compel deposition is GRANTED. (See Code Civ. Proc. § 2025.450, subd. (a).) Plaintiff Albert Vernon Wright shall shall APPEAR for deposition on 7/30/18 at 9 am at Bamford Reporting Service, Inc., 4105 North 20th Street, Suite 125, Phoenix AZ 85106. The parties may agree in writing to change the date, time, or place. Plaintiff shall pay $1188.85 in discovery sanctions to defen...

Excerpt: ...fully, and carelessly represented” something to Klein. (Cross-compl. ¶¶ 3, 12.) Cross-complainants have not opposed the demurrer to show why misrepresentations by other cross-defendants to Klein would impose an indemnity obligation on Klein. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Nor, of course, have they shown how Klein as a cross-defendant could make misrepresentations to himself. 3rd cause of action, express writt...

Excerpt: ... Defendant met its burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; see also Martinez Decl. ¶ 1 & Exs. 1-2.) Plaintiff failed to meet his burden to show procedural or substantive unconscionability. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th...

Excerpt: ...tt Laboratories, Inc. (1982) 32 Cal.3d 892, 900.) Good policy reasons exist for courts to grant equitable relief only with caution. (Ibid.) And “[t]o the extent that the court's equity power to grant relief differs from its power under section 473, the equity power must be considered narrower, not wider.'” (Id. at p. 901, fn. 8.) Plaintiff shall give notice. ...

Excerpt: ...with this request because no such letter exists; there is only a “conditional payment letter.” Requests 43 and 44. Defendant seeks a “Medicare Final lien letter” and the “Medicare Conditional Payment letter” from decedent Mildred Baggs. Defendant propounded these requests on the decedent (through plaintiffs' counsel) despite knowing she was deceased. During the meet-and-confer, plaintiff Cheryl Baggs (who is both an individual plainti...

Excerpt: ...met her burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413 [elements].) Defendant failed to show procedural or substantive unconscionability. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114). The court finds plaintiff properly served the Notice of Clie...

Excerpt: ... meet its initial burden to show the trivial defect rule bars plaintiff's claim. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) Defendant failed to show a six-inch drop is trivial as a matter of law. (Cf. Strathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568 [“height differentials of up to one and one-half inches”].) Even if it did, plaintiff raised triable issues of...

Excerpt: ...0 days of being served notice of this order. (See Code Civ. Proc. § 2031.310, subd. (h).) While plaintiff did not have to verify its objections when served, it does have the burden to substantiate them on a motion to compel. (See Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657-658; Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.) That it has failed to do. It did have the burden to verify its substantive respo...

Excerpt: ... is minimal at this early stage; the discovery stay imposes a minimal burden; the stay does not yet prejudice the court's calendar or case management; no other person's interests are implicated; and the public interest in the litigation is not yet prejudiced. (See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886-887.) The prejudice to the parties, the court, and the public -- and the balance of factors -- may change over time. The co...

Excerpt: ... Cal.3d 311, 318.) Moreover, plaintiff has been declared a vexatious litigant and the court has already denied him leave to file a third amended complaint. (See Code Civ. Proc., § 391.7; see also 11/20/17 order.) Defendant's request for judicial notice is GRANTED. Defendant shall prepare both a formal written order and a separate judgment of dismissal. Defendant shall give notice. ...

Excerpt: ...fective service and failed to show any mistake, surprise, or excusable neglect. (Code Civ. Proc. §§ 473, subd. (b); see also Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.) His uncorroborated hearsay statements denying substitute service are not credible. Defendant Constantino sufficiently showed mistake or excusable neglect in believing the summons was for defendant Aleman, not for her. (Code Civ. Proc., § 473, subd. (b).) Defendants' rep...

Excerpt: ... 10 days. Cross-complainant Wavell Showcase shall pay $1,766 in discovery sanctions to cross- defendant Aurora within 30 days. Cross-complainant Wavell Showcase's general objections are improper. (See Code Civ. Proc., § 2030.210, subds. (a)(3), (c).) In any event, it fails to substantiate its objections. It has not shown the interrogatory is vague or would impose an undue burden. To the extent it is asserting privilege regarding documents, it mu...

Excerpt: ... the delay, and plaintiff fails to show what specific discovery would now be necessary. Defendants are just adding a statutory subdivision to their existing statute of limitations affirmative defense. Defendants shall give notice. OSC re Compliance and Attorney Fees The court finds plaintiff has SATISFIED Conditions #1-4 of the 4/20/18 order and shall satisfy Condition #5 by PAYING $10,280 to defendants within 15 days. The parties agree plaintiff...

Excerpt: ...hanged plaintiff's claims by adding the 4th and 5th causes of action. Defendants may now respond to the new claims. Fourth cause of action, Bane Act. The FAC states facts sufficient to constitute this cause of action. (See Civ. Code, § 52.1; see also FAC ¶¶ 21-27, 43-57.) In “‘Bane Act cases . . . “[w]here Fourth Amendment unreasonable seizure or excessive force claims are raised and intentional conduct is at issue, there is no need for ...

Excerpt: ...ith the court.” (Ibid.) The claim of exemption has not been filed with the court. Thus, the court concludes plaintiff failed to give written notice to the levying officer. Plaintiff's proof of service of the notice of hearing does not show service on the levying officer. And if plaintiff had actually given written notice to the levying officer, the court presumes the levying officer would have filed the claim with the court. (Civ. Code, §§ 35...

Excerpt: ...will prevail on the merits and the relative interim harm to the parties from the issuance or nonissuance of the injunction.'” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) Plaintiffs have shown some probability of prevailing on their first cause of action. (See Civ. Code, § 2924i; see also M. Zanetis decl. ¶¶ 3, 9, 11-12; D. Zanetis decl. ¶¶ 3, 9, 11-12; Pl. Ex. A [promissory note]; Def. Ex. G [settlement agreement].) Whil...

Excerpt: ...ided. (See 7/24/17 substitution of attorney.) For that matter, cross-defendants fail to show address was actually invalid, let alone that cross-complainant knew that. Cross-defendants also failed to show cross-complainant prevented them from participating in the case by scheduling mediation sessions. Cross-defendants have not moved for relief under Code of Civil Procedure section 473 (or any other ground). They expressly disclaim any reliance on ...

Excerpt: ...im -- not the FAC that did. To respect substance over form and disregard trifling errors (Civ. Code §§ 3528, 3533), the court construes this record as showing (1) plaintiff served the FAC on defendant Nguyen on 8/2/17, and (2) defendant Nguyen moved on 1/11/18 to strike the FAC. The motion is thus untimely. (See Code Civ. Proc., § 425.16, subd. (f) [60 days].) Even if the court exercised its discretion to consider an untimely motion, defendant...

Excerpt: ... for a shoulder fracture despite documented shoulder pain. 3rd Cause of Action, Negligent Infliction of Emotional Distress: The SAC states facts sufficient to constitute this claim. (See Bird v. Saenz (2002) 28 Cal.4th 910, 915 [elements], 916-917 [contemporaneous sensory perception]; see also SAC ¶¶ 20-21, 39- 43.) In particular, the SAC alleges plaintiff Cheryl Baggs “was physically present and witnessed” a physical therapy assistant “a...

Excerpt: ...trike and continue the CMC. Ivy Ann Helman and Bradley Israel Helman's demurrer Defendants Ivy Ann Helman and Bradley Israel Helman's demurrer is:  SUSTAINED as to the 2nd-9th causes of action without leave to amend,  SUSTAINED as to the 10th causes of action with leave to amend, and  OVERRULED as to the 11th cause of action. Plaintiff David Mark Albin shall have leave to file and serve a second amended complaint within 14 days. 2nd-3rd ...

Excerpt: ...ubd. (g); see also SAC ¶ 12 & Ex. A.) The SAC alleges defendants Lee and Deng are the alter egos of the contracting party, defendant Mayturn. (See SAC ¶¶ 7, 23.) 2nd cause of action, fraud. The SAC states facts sufficient to constitute this claim. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements], 645 [particularity]; see also SAC ¶¶ 11-15, 17-22.) Again, the SAC alleges defendants Lee and Deng are the alter egos of defendan...

Excerpt: ...“‘[A]n unsuccessful personal injury suit by the physically injured spouse acts as an estoppel that bars the spouse who would claim damages for loss of consortium.'” (Id. at p. 1316.) But plaintiff James Manry's claims against defendant were dismissed after the court sustained a demurrer without leave to amend. (See Def. SSUF #1-4.) Out of an abundance of caution, the court has considered plaintiff's untimely opposition, which fails to raise...

Excerpt: ...complainants have failed to meet their burden to show a reasonable possibility of curing the defect. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318). The FAXC failed to correct the inadequate allegations of the original cross-complaint. And cross-complainants have not attempted to show how they would amend the FAXC. Cross-defendants shall give notice. ...

Excerpt: ...s the invasion of a primary right. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682.) The complaint should separately state and number each cause of action. (Cal. Rules of Court, rule 2.112.) Plaintiff improperly combined two causes of action under one heading in the FAC. The “1st cause of action” asserts violations of 2 primary rights: the right to be free from fraud regarding auto sales, and the right to be free from fraud regarding t...

Excerpt: ...t shall give notice. ...

Excerpt: ...arties that have already appeared within 10 days. Plaintiff shall have leave to e-file and serve his proposed first amended complaint on any new defendant who has not already appeared within 30 days. Plaintiff shall give notice. Demurrer Cross-defendant Mike Clements' demurrer is OVERRULED as to the 1st causes of action and SUSTAINED with leave to amend as to the 2nd, 3rd, and 4th causes of action. Cross-complainant Jodie Campbell shall have leav...

Excerpt: ... Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1429 [leave denied where amended complaint was “subject to demurrer”].) Plaintiff's proposed amendment improperly revives allegations that have been stricken in response to defendant's anti-SLAPP motion. (Compare Proposed 3rd Am. Compl. ¶¶ 10 & 35 with 2nd Am. Compl. ¶¶ 17-26, 29, 31.) “Allowing a SLAPP plaintiff leave to amend the complaint . . . would completely undermine the statute...

Excerpt: ... action. After a cause of action is amended, the court may rule in favor of the defendant if, upon subsequent motion, or perhaps renewal of the earlier motion if appropriately framed, it is shown ... there are no triable material issues of fact which would permit recovery on that theory.'” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.) Last week, the court granted plaintiffs leave to file a first amended com...

Excerpt: ...so Compl. ¶¶ 19-21, 30, 39, 42 & Exs. 1-2.) “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.) “There is no need to require specificity in the pleadings.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) The contract allegations are...

Excerpt: ...-7, 11-22, & 24-25 within 30 days. The parties shall thereafter meet and confer in a good faith attempt to resolve any remaining disputes. As to document demands #2, 4-7, 11-22, & 24-25 and plaintiffs' sanctions request, the hearing is continued to 7/9/18 at 2 pm in Dept. C12. Plaintiffs may file and serve a supplemental 8-page brief and supporting declarations no later than 6/22/18. Deponent may file and serve a supplemental 8-page brief and sup...

Excerpt: ...� 761.020.) He alleges the series of transfers from “decedent as trustee” to decedent to EDC are void due to undue influence and that, absent the void transfers, he would hold title as successor trustee or executor. “The rule which requires allegations of facts where undue influence is the issue does not require the allegation of evidentiary facts but only that ultimate facts be pleaded.” (Krug v. Meehan (1952) 109 Cal.App.2d 274, 277.) D...

Excerpt: ...alleges subsequent wrongful conduct, it fails to plead the alleged misrepresentation with particularity or to allege plaintiff's justifiable reliance. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements], 645 [particularity]; see also Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1088 [plaintiff must plead her own reliance].) 2nd cause of action, wrongful foreclosure. The complaint fails to state facts sufficient to constitute this cau...

Excerpt: ... (2003) 110 Cal.App.4th 1273, 1283.) Courts do not seal documents on the parties' agreement ”without a specific showing of serious injury.” (Id. at p. 1282.) Defendants have not shown how disclosure of “a routine settlement document” will “prejudice any legitimate confidential business practice” or anything else. (Id. at p. 1284.) Motion to Transfer Venue Defendants motion to transfer venue is GRANTED. The clerk of the court shall tra...

Excerpt: ...Corp. (2003) 109 Cal.App.4th 739, 761.) The prejudice to proposed defendant Laguna Crest is not substantial. Laguna Crest has not been relying on the original complaint for 19 months; it first came to this case as a cross-defendant in July 2017. It has presumably been preparing to defend itself against the cross-complaint for the last 9 months. Laguna Crest has not explained how the proposed FAC raises any new issues that were not already raised ...

Excerpt: ...'s demurrer is SUSTAINED without leave to amend as to the 6th cause of action and otherwise OVERRULED. Zwerling shall file and serve an answer, if at all, within 10 days. 1st cause of action, breach of contract. The FACC states facts sufficient to constitute this claim. (See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 [elements].) Zwerling has not shown the FACC fails to adequately allege his liability on the note as the alter ego of I...

Excerpt: ...7-930107 – especially if the cases are consolidated. Denying the motion would not seem to prejudice plaintiffs, who are already identical claims in identical capacities against identical defendants in Case No. 30-2017-930107. Can we have just one civil action here? ...

Excerpt: ...o constitute this cause of action. Plaintiff has sufficiently identified the trade secrets. (See Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1453 [standard]; see also FAC ¶ 12; accord 11/28/16 order [granting preliminary injunction].) 2nd-6th causes of action. The California Uniform Trade Secrets Act preempts the causes of action as currently alleged for interference with prospective economic advantage, interference with contract, bre...

Excerpt: ... plaintiff consented to one procedure (tubal ligation) but defendants performed another (bilateral salpingectomy). (See Cobbs v. Grant (1972) 8 Cal.3d 229, 242; Conte v. Girard Orthopaedic Surgeons Medical Group (2003) 107 Cal.App.4th 1260, 1267; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324-325; see also FAC ¶¶ 11-12.) The FAC can be “liberally construed” (Code Civ. Proc. § 452) to allege plaintiff did not understand she was even bein...

Excerpt: ...ably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) Any “ambiguities can be clarified under modern discovery procedures.” (Ibid.) 5th cause of action, fraudulent concealment. The FAC states facts sufficient to constitute this cause of action. (See Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131; see also FAC ¶¶ 58-66.) The claim is not incomprehensibly uncertai...

Excerpt: ...e or in person with plaintiff's counsel in a good-faith effort to resolve the issue. (Code Civ. Proc., § 4310.41, subd. (a).) Other motions Motion to strike complaint is taken off calendar. (See 11/16/17 FAC.) Demurrer and motion to strike FAC taken off calendar at parties' request ...

Excerpt: ...Group 2018) § 5:420.) Obtaining relief under that statute does not require plaintiff to re-serve. It merely allows defendant “to defend the action” (Code Civ. Proc., § 473.5, subd. (c)) by way of an answer or other response that must accompany the motion. (Code Civ. Proc., § 473.5, subd. (b).) Defendant shall give notice. ...

Excerpt: ...ntion raised.”'” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251 [declining to apportion plaintiff's attorney fees claim-by- claim].) “‘“[E]mployment discrimination cases, by their very nature, involve several causes of action arising from the same set of facts.”'” (Ibid.) Here, plaintiff presented related workplace discrimination claims and recovered $176,000. He should recover all of his reasonably necessary f...

Excerpt: ...omplaint within 14 days. 2nd-3rd causes of action, negligence per se. This is an evidentiary presumption, not a cause of action. (See Quiroz v. Seventh Ave. Center(2006) 140 Cal.App.4th 1256, 1286.) 4th-5th causes of action, gross negligence. “California does not recognize a distinct common law cause of action for gross negligence apart from negligence.” (Jiminez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn. 3.) 6th cause ...

Excerpt: ..., Alice Haddadin, Theresa Messersmith, and Franco Olmedo's motion to expunge lis pendens is DENIED. The substantive request is moot. Plaintiff removed the disputed notice of lis pendens after defendants filed this motion. The attorney fee request is not moot. But it is DENIED. The court will not allow "recovery of attorney fees for work performed by out-of-state counsel who represented [defendants] in California but who had not been admitted pro ...

Excerpt: ...counsels' emails is that defendant agreed to extend plaintiff's time to respond only to other written discovery. The parties agreed to “a reciprocal extension regarding Plaintiff's responses to Defendants' Third Set of Discovery.” (Stone Decl. Ex. 2, emphasis added.) They “agreed Plaintiff's deadline to respond to the subject discovery is continued from Aug. 15th to Aug. 23rd.” (Ibid., emphasis added.) On August 23, plaintiff's counsel so...

Excerpt: ...15 Cal.App.4th 874, 893.) The court declines the invitation to review the un-redacted document in camera. (Cf. Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 767.) Symphony's unopposed request to seal is GRANTED. (See Cal. Rules of Court, Rule 2.550(a)(3). Exhibits A, E, & N of the Kao declaration shall be SEALED. Sanctions were not noticed or requested. None are imposed. Symphony shall give notice. Motion to Compel Cross-defenda...

Excerpt: ...87.2.) At the outset, defendant failed to show it properly served the subpoena on Orange Coast Women's Medical Group. (See Code Civ. Proc., §§ 1985.3, subd. (b)(1), (3), 1013, subd. (a).) More basically, both subpoenas are woefully overbroad and unjustifiably seek protected private information. (See Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 841.) Defendant failed to show the...

Excerpt: ... SETS a status conference re binding arbitration for 9/10/18 at 10 am in Dept. C- 12. Defendant Roth Staffing met its burden to show a written arbitration agreement exists that covers plaintiff's claims against it and provides for arbitration pursuant to the FAA. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Shepard v. Edward MacKay Enterprises, Inc. (2007) 148 C...

Excerpt: .... (b).) If full information is not yet available, plaintiff must “reveal all information then available to” him. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.) He may not simply “assert[] [his] inability to respond.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.) And plaintiff has not met his burden to justify his objections. (Coy v. Superior Court (1961) 58 Cal.2d 210, 220-221...