Excerpt: ...ut, recovery of emotional distress damages caused by injury to property is only permitted where there is a preexisting relationship between the parties or an intentional tort. (Lubner v. City of Los Angeles (1996) 45 Cal.App.4th 525, 532; Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 101.) Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844 has no application to the present action; rather, Windeler stands for the unremarkable proposition ...

Excerpt: ...iff notably opposes relief on the sole ground that the motion was not “accompanied by a copy of the [proposed] answer.” However, the term, “accompanied by,” is interpreted liberally. Thus, relief from default may be granted even where the proposed answer is served and filed separately from the notice of motion, which may be deemed “substantial compliance.” (See Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 933...

Excerpt: ...se contract was entered into. Plaintiff concedes he cannot allege “actual intent,” but argues that he adequately pleads constructive fraud under Civil Code § 3439.04 because a transfer is voidable whether the “claim arose before or after the transfer.” Under no circumstances could Defendant have anticipated she was about to become involved in an automobile / bicycle accident or objectively known she would become indebted to Plaintiff. Fr...

Excerpt: ... “to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station.…” (C.C.P. § 1085(a).) To obtain such a writ, petitioner must show: “(1) A clear, present and usually ministerial duty on the part of the respondent; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty.” (Santa Clara County Counsel v. Woodside (1994) 7 Cal.4th 525, 539�...

Excerpt: ...3, 46‐59, 62‐76, 78‐81, 87, 88, 92‐98, 100‐103, 105‐131, 133‐149, 151‐156, and SUSTAINED as to nos. 3, 6, 12, 14, 15, 23, 25, 26, 44, 45, 60, 61, 77, 82‐86, 89, 90, 99, 104, 132, 150, 157. The motion for summary adjudication is ruled upon as follows: 1st cause of action: Denied. Plaintiff produced sufficient evidence showing triable issues of fact as to whether Defendant's stated reason for termination was pre‐textual. 2nd cau...

Excerpt: ...he class definition included in Paragraph 2 of the Proposed Order should include the actual date of preliminary approval – that is, replace “Preliminary Approval of this Settlement” with “September 12, 2019.”  Delete Paragraph 7 from the Proposed Order (and the exhibits) and replace with: The Class Notice provided to Class Members fully satisfies the requirements of due process, conforms to the requirements of Code of Civil Procedure...

Excerpt: ..., thus the “eve of trial” concerns have been eliminated. Plaintiff argues that Defendants unreasonably delayed requesting an amendment to the cross‐action because they had evidence that would support the proposed additional cause of action for over a year but, did not seek to amend until this motion was filed on 9‐20‐19. Plaintiff points to the deficiencies in the declaration filed with the moving documents. Cal. Rules of Court, Rule 3....

Excerpt: ...he sidewalk and stood only a few inches above the concrete; that the pole that had been properly attached to the sleeve had apparently been impacted and broken off by unknown means at least a year proper to the incident, and then later removed without CITY's knowledge; that no reports, claims, notifications, or complaints had been received by CITY prior to plaintiff's fall on 12‐21‐17; and that the condition and its alleged dangerous characte...

Excerpt: ...he present discovery request. CRC rule 3.1345(c) also requires as statement of factual and legal reasons for compelling further responses. Here, Plaintiff has failed to set forth each request and response to the special interrogatories. Further, Plaintiff has failed to set forth the legal or factual reason for compelling further responses, instead claiming he does not have to make any showing at all. Failure to comply with CRC rule 3.1345 regardi...

Excerpt: ...n determining the reasonableness of a party's attorney's fees. These include "the nature of the litigation, the difficulty of the litigation, the attention given to the issues, the success of the attorney's efforts, and time consumed. [Citation omitted.]" (PLCM Group, Inc. v. Drexler (1999) 72 Cal.App.4th 693, 708.) In exercising its discretion, the Court may consider all of the facts and the entire procedural history of the case in setting the a...

Excerpt: ...subd. (a)(2) [“If the recovery of money or damages is demanded, the amount demanded shall be stated.”; Reichert v. General Insurance Co. (1968) 68 Cal.2d 822, 830.) Plaintiff fails to cite to any authority, which excuses compliance with the statutory requirement or finds that alleging in the prayer an entitlement to “general damages according to proof” satisfies the requirement. The court rejects defendants' challenge to the complaint bas...

Excerpt: ...d the court lacks jurisdiction over them. This action is stayed pending the outcome of the arbitration. Page 5 of 6 Request for Judicial Notice is denied. Judicial notice of court records is proper under Evid. Code §452(d). However, the matter to be judicially noticed must be relevant to the issues in the case. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) A ruling by another trial court in an unrelated case is not binding ...

Excerpt: ...cial notice. Court declines to rule on Decline to rule on CDTFA's evidentiary objections as immaterial in accordance with CCP § 437(q). A motion for summary adjudication may only be granted, “if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (CCP § 437c(f). See also Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 522; Weil & Brown, Cal. Practice Guide:...

Excerpt: ...show good cause. Nos. 36, 37, 41 and 42: These RFPs ask Defendant to produce all communications between GM and Moss Bros/repair dealership regarding Plaintiff's allegation of “excessive carbon in the engine.” GM responded with a number of objections, but agreed to comply in part and identified responsive documents, including the Vehicle History Printout, Service Request Activity Report and repair orders. The responses are code‐compliant and...

Excerpt: ...he suit. Moran v. Endres (2006) 135 Cal. App. 4th 952, 954, 955. Page 3 of 3 Where the defendant prevails on only party of the motion, it is appropriate that the court deny a request to recover all of the fees incurred. Mann v. Quality Old Time Services (2006) 139 Cal. App. 4th 328, 344‐345 (overruled on other grounds Baral v. Schnitt (2016) 1 Cal. 5th 376). An appropriate method of determining fees is the lodestar method, which involves taking...

Excerpt: ...emonstrates repeated attempts to secure a date certain for Plaintiff's deposition and otherwise satisfies the requirements of CCP § 2025.450(b)(2). Notably, too, there is no dispute that Plaintiff failed to comply with the court's 5‐1‐19 order requiring Plaintiff to give her deposition before 8‐1‐19. Plaintiff's argument that the motion fails to set forth specific facts showing good cause justifying the production and inspection of docum...

Excerpt: ...ust prove that she is a bona fide investor of the LLC (as opposed to a mere conduit for other investors), and the documents regarding the source of Shi's contributions must be produced. This argument is unpersuasive and lacks merit. This lawsuit was brought by Plaintiffs to recover their investment in the LLC that they allege Lee misappropriated for himself and ousted Plaintiffs from their interests in the LLC. Plaintiffs allege a failed joint ve...

Excerpt: ...orp. (2007) 148 Cal. App. 4th 97, 113.) The Court only takes judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879.) Judicial notice is taken only as to the existence of the remaining items. Plaintiffs have not adequately explained the delay in seeking to add the Partition and Accounting causes of action. They con...

Excerpt: ... CCP §2031.240(c)(1) and Wellpoint Health Networks, Inc. vs. Sup. Ct. (McCombs) (1997) 59 Cal. App. 4th 110, 130). Sanctions payable BY American Automobile Insurance Company (AMERICAN) to Defendant First Specialty Insurance Corporation (FIRST) in reduced, reasonable amount of $3,480.00. SET ONE: No. 1: Granted. Movants seeks the 14 policies which AMERICAN identifies in §7 of its complaint. It agreed to produce all such policies (subject to the ...

Excerpt: ...n in issue are for breach of oral joint venture agreement, breach of good faith and fair dealing and breach of fiduciary duty, thus not collections causes of action. Although official agency acts are ordinarily judicially noticeable under Evidence Code § 452(c), this particular license is irrelevant for purposes of Business and Professions Code § 7592.5, which requires an “alarm company operator” to be licensed. As to the First Cause of Act...

Excerpt: ... that the claimant's possession must be adverse to the record owner, unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter.” (Gilardi v. Hallam (1981) 30 Cal.3d 317, 322‐23 [internal quotation marks omitted].) (Accord, Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1077.) In other words, hostility requires “the claimant's use of the property was made without the explicit or im...

Excerpt: ...r Court (2006) 141 Cal. App. 4th. 1452, 1463.) An applicant for a preliminary injunction must show a threat of immediate and irreparable harm due to the inadequacy of legal remedies. (Triple A Machine Shop Inc. v. State of California (1989) 213 Cal. App. 3d 131.) “The trial court's determination must be guided by a mix of the potential merit and interim harm factors; the greater the plaintiff's showing on one, the less must be shown on the othe...

Excerpt: ...not lie to a portion of a cause of action. Thus, where there is a substantive defect affecting only a portion of a claim, the proper challenge is by motion to strike.” (Weil & Brown, CPG: Civ. Proc. Before Trial (TRG 2019) §7:188.1 citing, PH II, Inc. v. Sup. Ct. (Ibershof) (1995) 33 Cal.App.4h 1680, 1682‐1683 [legal malpractice claim based on several incidents of alleged malpractice, one of which was not actionable as a matter of law.”]) ...

Excerpt: ...��13. Defendants contend the foregoing amount had already been paid to them as of 4‐21‐17, the date of the settlement and that they are not included in the settlement terms. The dispute here is whether the settlement provision entitles Plaintiff to monies that Defendants had collected as of the date of the settlement. Plaintiff is correct that its motion is not untimely. There is no dispute the court retained jurisdiction to enforce the terms...

Excerpt: ...quest is unopposed. It is granted pursuant to Evidence Code Section 452(a), (c), and (d). Under Code of Civil Procedure section 425.16(c)(1), “if the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” “Frivolous” in this context means that any reasonable att...

Excerpt: ...anctions in the reasonable amount of $1,210 are awarded in favor of Ralphs and against Costco and its counsel of record. To establish “good cause,” for the requested discovery, 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...

Excerpt: ...sion of the arbitration agreement. The court finds, however, there is a possibility of conflicting rulings, since plaintiffs allege that another tenant collected the fraudulent charges for electricity on behalf of the moving parties. (See Abaya v. Spanish Ranch I, L.P. (2010) 189 Cal.App.4th 1490, 1493 [trial court had discretion to deny arbitration when some mobile home Page 3 of 4 park residents had arbitration agreements and others did not, si...

Excerpt: ...nty. Plaintiff alleges he was wrongfully apprehended and arrested at his residence in Moreno Valley and then wrongfully detained at a jail in Santa Ana. (Complaint, ¶¶ 5‐9.) The facts of this case are analogous to the facts County of Orange v. Superior Court (Barrie) (1999) 73 Cal.App.4th 1189, 1191 (“Barrie”). In Barrie, the plaintiff was arrested in San Francisco and later imprisoned in Orange County on an invalid arrest warrant issued ...

Excerpt: ...hat is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” On 9‐26‐19, hearing on the matter was continued with directions for Defendant to comply with this requirement. Defendant has not complied with this requirement and filed the required declaration. The motion relies in great part on extrinsi...

Excerpt: ...e are allegations regarding alcohol in this cause of action, these allegations are part of Plaintiffs' argument that Elks Lodge created a dangerous environment and failed to provide adequate security. Plaintiffs specifically allege that “[b]ut for the negligence of Defendants, and each of them, including the lack of adequate supervision, lack of security, and lack of reasonable safety measures in place, Abraham David Bonilla would have been pre...

Excerpt: ...tiff is to pay Defendant a monthly amount that is sufficient to cover ongoing property taxes and insurance. Evidentiary Objections: Sustained as to the exhibits offered by Defendant. Overruled as to objections to Defendant's Declaration. Plaintiff has established the “irreparable harm” component of her request. If Defendant sells or otherwise encumbers the property, she and her nephews, over whom she is guardian, will lose their home. The onl...

Excerpt: ...ntiffs to recover their investment in the LLC that they allege Lee misappropriated for himself and ousted Plaintiffs from their interests in the LLC. Defendants concede that the only connection Crespo has to this lawsuit is that Shi claims to be married to him. Crespo states in his declaration that he and Shi have separate business interests and he only recently became aware of the lawsuit. (Crespo Dec., ¶ 3.) Defendants fail to explain how her ...

Excerpt: ... 21‐19, Toles served a second Demand for Independent Medical Examination with Dr. Tye Ouzonian for 9‐30‐19. Both examinations were described as orthopedic physical examinations. Plaintiff sent a meet and confer letter indicating that he would only appear for one orthopedic examination. After several meet and confer discussions, the parties agreed that Plaintiff would appear for the Ouzonian examination on 10‐24‐19. On 9‐23‐19, Defen...

Excerpt: ...ion but the elder abuse claims do not. As used herein, Plaintiff is referred to as Dana Kelly. The general rule is that the courts decide disputes about arbitrability unless the parties agree to delegate the issue of enforceability of arbitrability to the arbitrator. (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891‐892.) To be effective, the language “must be clear and unmistakable” and that there is no “contract defense such as...

Excerpt: ...‐19 and adopted. The Trial Management Plan (TMP) filed by Plaintiff on 10‐1‐19 does not resolve the concerns stated in the prior tentative. The 10‐1‐19 TMP indicates that Plaintiff intends to rely on Defendant's timekeeping records as opposed to statistical sampling, and Plaintiff's discovery plan post‐ certification including taking approximately fifty Class Member depositions. Further, plaintiff states she “will not be relying on ...

Excerpt: ... Security Agreement (“Security Agreement”) which specified certain assets of MER as collateral for the loan. MER's owner and principal, Defendant Michael A. Madrid (“Madrid”) signed a Commercial Page 3 of 7 Guaranty (“Guaranty”), pursuant to which he personally guaranteed the loan. On 4‐5‐18, the loan matured and the full balance became due. MER failed to make the payment and defaulted on the loan. Madrid did not pay the outstandi...

Excerpt: ...t to judicial notice if those matters are reasonably disputable.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 113.) Judicial notice is taken of the existence of each of these documents, but not as to the truth of the statements contained in the Complaint and First Amended Complaint. Pursuant to Cal. Rules of Court, Rule 3.1324(b), a separate declaration must accompany a motion for to amend a pleading. The declar...

Excerpt: ...been interpreted to cover cost items not included in the detailed statutory definition of ‘costs' in CCP §1033.5 (Jensen vs. BMW of North America, Inc. (1995) 35 Cal. App. 4th 112, 137). Jensen considered an analysis by the assembly Committee on Labor, Employment and Consumer Affairs which stated that CC §1794(d)'s award of costs and expenses by the court to the consumer should cover such out‐ofpocket expenses as filing fees, expert witness...

Excerpt: ...uce any evidence showing a triable issue of fact. Defendant's Request for Judicial Notice is denied. Evidentiary Objections: Overruled as to Nos. 1 – 3. The court declines to rules on no. 4 because the evidence to which Plaintiff objects was not material to the court's analysis. Plaintiff's request for a continued is denied. Plaintiff failed to show that the proposed discovery would lead to facts essential to justify opposition to the trivial d...

Excerpt: ...Evidence Code 452. Defendant's Request for Judicial Notice is granted pursuant to Evidence Code Section 452. It is noted that Defendant has provided the Secretary of State Certificate of Status showing that as of 10‐15‐19 PRP Investors Madison, LLC was active. Evidentiary Objections are overruled. A motion for summary judgment / adjudication lies where one or more causes of action in the complaint have no merit, or there is no affirmative def...

Excerpt: ...19, Michael's son, Theodoros Daskalakis (“Theodoros”) was substituted for Michael as successor in interest. For claims held by a trust, the trustee is the real party in interest that has the right to sue on the trust's behalf. (O'Flaherty v. Belgum (2004) 115 Cal. App. 4th 1044, 1062.) A beneficiary is not the real party and may not sue in the name of the trust because he or she had no legal title or ownership interests in the trust assets. (...

Excerpt: ...ages; other causes of action are available to resolve past wrongs. (Travers v. Luden (1967) 254 Cal.App.2d 926, 929; Osseous Technologies of America v. Discovery Ortho Partners (2010) 191 Cal.App.4th 357, 366.) The first amended complaint, alleges that in addition to the Andreski, Deusenberry, and Arroza actions, there are other “still pending actions” which require a declaratory judgment regarding First Specialty's refusal to defend and inde...

Excerpt: ...rd issue either the immunity does not apply, or there is a triable issue of material fact. Defendant Riverside Unified School District (School District) argues the first cause of action for dangerous condition of public property fails for three reasons: 1. The School District cannot be liable for any condition on premises that it does not own, control or maintain and the sight line and visibility obstructions identified by plaintiffs are all on p...

Excerpt: ...ued to 12‐12‐19 at 8:30 a.m., Department 1. The clerk is to give notice of the continuances. Since judicial policy favors the resolution of all disputed matters between the parties in the same lawsuit, the court's discretion will usually be exercised to permit amendment of pleadings. “[T]here has developed in this state a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their su...

Excerpt: ...nown claims is limited to those arising out of the lawsuit. Ambiguities in a § 998 offer are interpreted against the offering party. (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86; Chen v. Interinsurance Exch. of Auto Club (2008) 164 Cal.App.4th 117, 122.) On 9‐18‐18, Defendants served a statutory offer to comprise pursuant to CCP § 998 for $250,000.01 in exchange for a dismissal and release (“§ 998 Offer”). Plaintiff did not accep...

Excerpt: ...ifiable and actual reliance on the misrepresentation; and (5) resulting damage. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445.) The elements of a negligent misrepresentation cause of action are (1) a representation as to past or existing material facts; (2) falsity of the representation; (3) defendant lacks reasonable grounds to believe the truth of the representation; (4) intent to induce reliance; ...

Excerpt: ...to agree to, but the fact that Plaintiffs now appear to challenge the Settlement is concerning. CRTC does not provide the value of the waiver of costs. Because a non‐settling defendant is entitled to a setoff for the value of the settlement, the value must be established by evidence. (Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1385.) The waiver of litigation costs by a settling defendant constitutes consideration paid for the settlement...

Excerpt: ...) and that they were behind the campaign for Measure L (FAP ¶33.) While these activities do meet petitioning activity, the remedy by the Wirt of Mandamus is to direct the City and City Manager to perform their duties regarding Measure L, and invalidating portions of the Municipal Code. (Prayer ¶1‐3.) None of this has anything to do with these Respondents. As stated by one court: “It would be inappropriate for us to insert into a pleading cl...

Excerpt: ...nown claims is limited to those arising out of the lawsuit. Ambiguities in a § 998 offer are interpreted against the offering party. (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86; Chen v. Interinsurance Exch. of Auto Club (2008) 164 Cal.App.4th 117, 122.) On 9‐18‐18, Defendants served a statutory offer to comprise pursuant to CCP § 998 for $250,000.01 in exchange for a dismissal and release (“§ 998 Offer”). Plaintiff did not accep...

Excerpt: ... lot of the school. Evidentiary Objections: Declaration of Edward Ruzak: Objections 1 to 23 are overruled. Declaration of Brad Avrit: Objections 1 to 5 are overruled. Declaration of Roy C. Leggitt, III: Objections 1 to 5 are overruled. Armando G. Huerta was on a motorcycle heading eastbound on Colorado Avenue when he collided with a vehicle driven by defendant Gerardo Unzuetas who was attempting to make a left turn from the western driveway of Ad...

Excerpt: ... proving the causes of action. Plaintiffs' argument regarding what the documents may demonstrate is insufficient to demonstrate direct relevance. “Mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice” to meet the burden of a party seeking constitutionally protected information. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1017; see also Look v. Penovatz (20...

Excerpt: ...on for nuisance (citing San Diego Gas & Electric Co. (1996) 13 Cal. 4th 893, 936‐937). San Diego held that all intangible intrusions (i.e., noise, odor or light alone) are dealt with as nuisance cases, not trespass. “Recovery allowed in prior trespass actions predicated upon noise, gas emissions, or Page 2 of 3 vibration intrusions has, in each instance, been predicated upon the deposit of particulate matter upon the plaintiffs' property or o...

Excerpt: ...uction of witness statements regarding the accident at issue in this lawsuit. Since they pertain to evidence directly relevant to this lawsuit and regarding statements made regarding the accident by witnesses, good cause exists for their production. Defendants objected to these requests on numerous grounds. The only grounds addressed by Defendants in their opposition is attorney‐client privilege and attorney work product. Defendants cite to cas...

Excerpt: ...be continued and Defendant ordered to provide a privilege log with Plaintiff being given the opportunity to respond thereto. Plaintiff seeks all documents relating to surveillance images and videos of Plaintiff taken by Defendant's investigators. This is a personal injury action in which Plaintiff's injuries are directly at issue. As pointed out by Plaintiff, these documents bear on the nature and extent of Plaintiff's injuries and damages and to...

Excerpt: ...al.4th 623, 630‐31.) Thus, in California, “all government tort liability must be based on statute.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, n. 2.) Accordingly, “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented … until a written claim therefor has been presented to the public entity and has been acted upon … or has been ...

Excerpt: ...d cause of action as to Dr. David Englander without leave to amend. Sustained as to the third cause of action without leave to amend as to the County of Riverside (including RCRMC) Deputy Hartmann, Deputy Marquez, Deputy Freeman, Inv. Tina Woodward and Lt. Fitzpatrick. Sustained as to the third cause of action with leave to amend as to Dr. Dionisio Montenegro, Dr. Jess DeVera, Dr. Victor Laus, Dr. David Englander and Dr. Glenn Mejia (joining part...

Excerpt: ...he separate statement is denied because there is enough information to review the subject requests. RPD Nos. 8, 15‐25, 27, and 28: Since Lee provided supplemental responses to some of the RPDs that are subject to this motion, the motion is now moot as to these RPDs since the supplemental responses supersede the prior responses. RPD Nos. 1‐7, 10‐14, and 9: Lee asserted numerous objections, which are without merit. Lee objects that the reques...

Excerpt: ...(a).) Defendant has failed to produce bank records as they are kept in the usual course of business and is ordered to produce them accordingly. As evidenced by Defendant's exhibit as a sample of the items produced, the account number is redacted. CRC rule 1.201 requires that any financial account numbers be redacted to protect privacy issues in a pleading or other paper filed in the public file. Plaintiff has provided no compelling reason for nee...

Excerpt: ...Evidence Code Section 452(b) as to Exhibits A – F requested made by the County of Riverside. Granted pursuant to Evidence Code Section 452(c) as Exhibits A – C requested by Respondent. Denied as Exhibit D requested by Respondent on ground the photograph can be subject to dispute. Page 2 of 3 Health & Safety Code §17980.6 provides that “[i]f any building is maintained in a manner that violates any provisions of this part, the building stand...

Excerpt: ...ts $68,895.00 in fees, which includes a .5 lodestar enhancement, as well as $3,429.75 in costs and expenses for a total of $72,324.75. Plaintiffs assert that Knight incurred $17,990.00 in fees and Wirtz incurred $27,940.00. They argue that they are entitled to an enhancement because the case was taken on a contingency basis. Further that the litigation was complex and time‐consuming because Defendant chose to litigate rather than buy back the v...

Excerpt: ... pay for the remaining amounts owing to the Receiver because she requested the receiver and sought particular landscape improvements. The Judgment in this matter requires the maintenance of the pet cemetery by the “owner(s) of the Property …in a manner comparable to a well maintained human cemetery.” Mr. Wang, as the owner, is responsible for maintenance under the terms of the Judgment, and not the owners of plots within the pet cemetery, s...

Excerpt: ...t raise the issue of the defendant's principal's unavailability at the TSC. However, the motion is inconsistent as to the reason why. The notice of motion states, at page 1, that “counsel failed to advise the court and counsel” of that unavailability, suggesting that counsel knew of the problem but failed to disclose it. Similarly, the memorandum says at page 4 that “counsel made an error in failing to advise the court” of the principal's...

Excerpt: ...s “Individual Defendants”, contend Plaintiff failed to exhaust his administrative remedies as to them. They allege that under Government Code §8547, a plaintiff must first exhaust his or her administrative remedies with the SPB (State Personnel Board) before filing a lawsuit. The Individual Defendants also contend that Plaintiff's claim is time barred. Individual Defendants fail to meet their burden on the ground of failure to exhaust admini...

Excerpt: ...balance, as explained more fully below. Lockhart's request for sanctions is granted in the sum of $1,290. Analysis: The objection/motion to strike. The defendant objects to and moves to strike the plaintiff's motion on the ground that the memorandum in support of the plaintiff's motion violates California Rules of Court 2.108 and violates this Court's admonition against excessive use of footnotes. Both the objection and the motion to strike are m...

Excerpt: ...eeking the identity of potential witnesses. Though technically speaking, Plaintiff could have done a better job phrasing the interrogatories (e.g., it is not clear whether no. 1 is asking Defendant to identify lawsuits containing any of the causes of action or all of the causes of action identified in the interrogatory), it is obvious what information Plaintiff seeks. As to the objection regarding format per CCP § 2030.060(f): CCP § 2030.060(f)...

Excerpt: .... All she points to is the fact that the probate case (RIP 1400189 ) has been resolved and that Plaintiff refuses to appear for deposition. As to the former, the probate court entered judgment on 11/1/17, which is on appeal. Res judicata (claim preclusion) “operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.” (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 398.) “Res judicata precludes t...

Excerpt: ... defendant timely preserved his objections, the result would not differ since the court finds that the objections were not well‐taken and seek documentary support for defendant's contentions, which are a proper subject for discovery. Sanctions are awarded against defendant Orellana and his counsel in the amount of $1,035.00. 4. RIC1709019 BRUYN VS ORELLANA MOTION TO/FOR COMPEL FURTHER RESP OF RICHARD ORELLANA TO SPECIAL INTERROGATORIES SET ONE ...

Excerpt: ...Both parties agree that the applicable standard of review is the independent judgment test. In applying the independent judgment test, the court determines whether the weight of the evidence presented supports the findings of the administrative law judge (“ALJ”). C.C.P. §1094.5(c). There is a strong presumption that the ALJ's findings are correct. Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817. The Petitioner has the burden to show that...

Excerpt: ...dants are business entities, noticing the depositions of the PMKs is appropriate. Pursuant to CCP §2025.450(a), where a party fails to appear, without a valid objection, the party giving notice of the deposition may move for an order compelling attendance, testimony, and the production of documents. The motion must show good cause, and be accompanied by a meet and confer declaration under CCP §2016.040. (CCP §2025.450(a).) Plaintiff asserts th...

Excerpt: ...gini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) The preliminary injunction order is irrelevant to this motion. Granted as to Claimant's Request Nos. 1, 2, 3, 4, 6, 7, 8, 9, and 12. There was no meet and confer as required by CCP 439. It appears however that the parties have discussed the issues raised by this motion in open court before several judges as reflected in Claimant's Request for Judicial Notice, Nos. 3, 4, 8, 9 and 12. ...

Excerpt: ...nation of active misrepresentation and concealment. (SAC ¶18.) CCP §338(d) imposes a three year statute of limitations for fraud. In Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472, the court stated: “Because the discovery rule operates as an exception to the statute of limitations, ‘if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make...

Excerpt: ... 1 commencing with CCP 1255.010, and, further, that the proper notice was provided. The court further finds that there is an overriding need for plaintiff to possess the property prior to the issuance of final judgment in the case, and plaintiff will suffer a substantial hardship if the application for possession is denied or limited. The hardship that plaintiff will suffer if possession is denied or limited outweighs any hardship on the defendan...

Excerpt: ...otice of the truth of the documents—not the fact that they were filed. Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564. As to Defendants' remaining requests for judicial notice of prior judgments, pleadings, documents filed with the Secretary of State and Plaintiff's bankruptcy filings is granted. The Second Amended Complaint is confusing. As it is based, it is based on the fraud/concealment of knowledge that Healthwise was being dissolved be...

Excerpt: ...a question of fact and is an affirmative defense upon which Defendants bear the burden of proving. Ramirez v. Yosemite Water Company, Inc. (1999) 20 Cal.4th 785, 794‐95. In addition, Plaintiff's allegations that the Individual Defendants are officers of SMJ and MEM is sufficient to support potential liability under Lab. Code § 558.1 as an “other person acting on behalf of an employer.” Further, Plaintiff's individual causes of action are s...

Excerpt: ...al on April 16, 2018, which is pending as Case Number E070357, the court has concerns that the appeal has divested this court of jurisdiction to determine this motion. See Weisenberg v. Molina (1976) 58 Cal. App. 3d 478, 486. If the motion could be found as timely, the motion is denied on the merits. There was sufficient evidence to support the verdict. A judges' discretion is limited and may only grant a motion for Judgment Notwithstanding Verdi...

Excerpt: ...not Decedent's personal representative and thus has no standing to prosecute the proposed cause of action for elder abuse under Welf. & Inst. Code § 15657.3(d), and, in any event, the proposed amended complaint does not demonstrate compliance with CCP § 337.32. Additionally, it appears that the proposed cause of action for physical elder abuse/neglect is untimely, and Plaintiff has not pleaded the application of the discovery rule. See Fox v. E...

Excerpt: ... the court finds the motion/opposition was substantially justified or the circumstances make imposing sanctions unjust. Under C.C.P. §2023.030(a), a court may also impose monetary sanctions when a party misuses the discovery process. A misuse of the discovery process can include making unmeritorious objections. Plaintiff did not act without substantial justification in filing the on May 11, 2018. The filing resulted in the Defendant providing th...

Excerpt: ...ny misdemeanor convictions and records relating thereto. Plaintiff does have a privacy right that not outweighed by the discovery rights of the defense. In addition, the defense is not entitled to any underlying material on any felony conviction unless it shows the same is material to the issues herein. No sanctions. ...

Excerpt: ...n as moot. Both parties should note that Civ. Code § 2923.55 was repealed by its own terms and is no longer of any effect. See Quanta Computer Inc. v. Japan Communications Inc. (2018) 21 Cal.App.5th 438, 449; Beckman v. Thompson (1992) 4 Cal.App.4th 481, 489. Because many of the original HBOR statutes contained sunset provisions, the parties are advised to consult the versions of the statutes effective January 1, 2018. A special demurrer lies wh...

Excerpt: ...uling set forth below in Number 5. 5. RIC1717505 SUJAN M.D. VS UHS‐CORONA INC MOTION TO/FOR ANTI‐SLAPP SPECIAL MOTION TO STRIKE BY UHS‐CORONA INC Tentative Ruling: Denied. Defendants' objection to paragraph 6 of Sujan's Declaration is overruled. First Prong: Under the first prong of the anti‐SLAPP statute, the moving party is not required to establish that his or her actions are constitutionally protected under the First Amendment. Navell...

Excerpt: ... surcharge. Facts supported by the evidence. Upon appointment the Receiver removed Weedmart from the property. The property was inspected and there was substandard conditions at the property including but not limited to structural modification, electrical issues and inadequate bathroom facilities. The marijuana dispensary existing at the filing of this case, was operated by the former property owners Can Nguyen and Linh Duong. Defendant Rivermerr...

Excerpt: ...ority or evidence for defective service. Furthermore, the only argument presented is that the subpoena was improperly served. That issue is now moot in light of the second subpoena that was served via a registered process server on 5‐25‐18. ...

Excerpt: ...at leave permits the party to amend the causes of action to which the demurrer was sustained but does not allow the party to add entirely new causes of action. See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. Absent prior leave from the court, an amended pleading that raising new nt causes of action is properly subject to a motion to strike. Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018), § 7...

Excerpt: ...condition is not like driving under the influence as plaintiff argues in reliance on Taylor vs. Superior Court (1979) 24 Cal. 3d 890). Blacking out because of a medical condition is not malicious, and the conduct is negligent at best. In Taylor, the Supreme Court held that voluntarily driving an automobile while intoxicated constitutes willful and wanton conduct giving rise to punitive damages: “There is a very commonly understood risk which at...

Excerpt: ...ff argues that the motion is procedurally defective because there is no authority for a motion to strike the OSC. Plaintiff is correct. A contempt proceeding is commenced by the filing of an affidavit containing charging allegations, which frames the issues to be tried at the contempt hearing. (CCP § 1211; Reliable Enterprises, Inc. v. Sup. Ct. (People) (1984) 158 Cal.App.3d 604, 616.) Upon receipt of the affidavit, the court will issue an order...

Excerpt: ...h in the complaint. Defendant argues that the matter is barred by the statute of limitations. While Plaintiff does seek interest from 2016, without factual allegations it is unclear whether there is actual a statute of limitations issue. Case Management Conference currently set for July 30, 2018 is continued to September 6, 2018 at 8:30 a.m., Department 1. All parties are to submit new and updated Case Management Statements. ...

Excerpt: ...s. Womancare, Inc. (1985) 38 Cal. 3d 396, 404). An unauthorized dismissal, may be vacated at any time: i.e., within a reasonable time after the client's learning of it, regardless of the time limitations in CCP §473(b) (Whittier Union High School Dist. vs. Sup. Ct. (Carroll) (1977) 66 Cal. App. 3d 504, 509). Where the attorney's lack of authority to dismiss is undisputed, it is an abuse of discretion for the court to refuse to set aside the dism...

Excerpt: ...uch as tax documents, and failure to discuss an insurance pay out for fire damage. Defendants are already required to provide Plaintiffs with all financial information, which would include tax documents. Defendants claim that they have provided the information and that Anat Louk was involved in preparing the tax return. While Defendants should comply with the existing preliminary injunction and provide Plaintiffs with access to financial records,...

Excerpt: ...ns, is appropriate and reasonable in the amount of $600 (2 hours at $300/hour) plus $60 filing fee. 2. RIC1711304 PETERSEN VS RANCHO SPRINGS MOTION TO/FOR AN ORDER ESTABLISHING ADMISSIONS BY PHILIP SIMMONS M.D., SOUTH WEST HEALTHCARE SYSTEM Tentative Ruling: Granted as to sanctions otherwise denied. Responses were served prior to the hearing that substantially comply with the requirements of CCP2033.220. Sanctions are mandatory under CCP 2033.280...

Excerpt: ...t discrimination case, the employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more elements of plaintiff's prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.” (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003.) “If the employer meets its initial burden in this manner, the plaintiff then has the b...

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Excerpt: ... the personal guaranty of this lease (this issue will be discussed below), Plaintiff does not allege that Kallman is a party to the written lease agreement and Kallman did not execute the lease on his own personal behalf (he signed it as Chase's secretary). A cause of action for breach of contract cause of action requires a contract between the parties, plaintiff's performance or excuse of performance, breach by the defendant and damages. Oasis W...

Excerpt: ...acts upon which the injunction was granted, that the law upon which the injunction was granted has changed, or that the ends of justice would be served by the dissolution. “A preliminary injunction is a provisional remedy, and the trial court possesses the inherent power to modify its preliminary injunction which is of a continuing or executor nature. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. Ap...

Excerpt: ...takes notice of the filing of the items but not their contents. In this unlawful detainer matter, Plaintiff, The Bank of New York Trust Co., NA (“Plaintiff”), is the owner of the property in question (1850 State St. in Corona. This is the third attempt to evict defendant Ernesto Daniel Gyurec (“Defendant”), the prior owner of the property at issue. Plaintiff served a notice to quit on June 14, 2017. Defendant has allegedly failed to vacat...

Excerpt: ...fs single cause of action for interference with contractual relations fails in the first instance because Plaintiffs do not sufficiently allege a disruption of their right to make a payment under the note secured by the First Deed of Trust (DOT). Plaintiffs were already in breach of their obligations under the First DOT at the time that 2 nd Chance Mortgage (2CM) acted. Moreover, to the extent that the cause of action is based upon Plaintiffs' un...

Excerpt: ... Special Interrogatories were received, the motion is also moot except for the issue of sanctions. If the responses to Special Interrogatories were not received the motion is granted along with sanctions as described below. No meet and confer is required for compelling original responses or deeming admissions. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 777‐778; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (...

Excerpt: ...0(c) where the responses are untimely, as here. Appleton v. Superior Court (1988) 206 Cal. App. 3d. 632. An award of sanctions to moving party payable by Plaintiff Blake Peterson on all two motion, is appropriate and reasonable in the amount of $900 (2 hours at $300/hour) plus $120 filing fees. An award of sanctions to moving party payable by Eric Petersen on the motions, is also appropriate and reasonable in the amount of $780 (2 hours at $300/h...

Excerpt: .... When an action is voluntarily dismissed, recovery of costs does not depend on an entry of judgment. (Fries v. Rite Aid Corp. (2009) 173 Cal.App.4th 182, 183.) As to Item 4 for deposition costs, the court has exercised its discretion and considered evidence submitted with the reply regarding the standard charge for the court reporter used by defendants for the deposition of plaintiff. Plaintiff sufficiently challenged the necessity for an expedi...

Excerpt: ...d number 3 below, are competing motions, and are therefore, analyzed under the heading of the motion for reimbursement. Page 2 of 4 The court has reviewed the Supreme Court's decision in Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 829, 832‐833 and finds it inapplicable because there is no evidence that the decedents' employer was negligent, so there is no need for an evidentiary hearing. As such, the...

Excerpt: ...ing party has met satisfied this requirement and the burden has been shifted to the Plaintiff to demonstrate the falsity of the purported agreement. (Condee, supra, 88 Cal.App.4th at 218‐219.) Plaintiff has not meet this burden. There is sufficient evidence of interstate commerce such that the FAA applies. Defendant provides the declaration of Carmen Lainez that it provides bail bonds to customers in California and out of state, including co‐...