Excerpt: ...quest for summary judgment, or in the alternative summary adjudication, as to Ritual Yoga Arts, LLC (“RYA”) and Stephen Levine, named only in causes of action 1 and 2, respectively. A plaintiff seeking summary judgment must produce admissible evidence on each element of each cause of action sufficient to demonstrate that he or she is entitled to judgment. (C.C.P. § 437c(p)(1).) If plaintiff meets that initial burden, the burden shifts to def...

Excerpt: ...(d) only permits recovery of “actual time expended” rather than estimates of time to be expended. Plaintiff posits 27.4 hours actually expended, and then estimates another 7.0 hours on future efforts (reviewing opposition, writing reply, appearing at hearing). The registry of action does not show any reply brief, and counsel has so far made all appearances by telephone. Thus, the best this Court can do is permit one hour of time digesting the...

Excerpt: ...20 days leave to amend. 1st COA: Gross Negligence Per Se Plaintiffs' first cause of action bears the label “gross negligence per se” – which counsel now admits was overstated. Outside the realm of express assumption of the risk, gross negligence is not a recognized standalone cause of action. See Hass v. RhodyCo Productions (2018) 26 Cal.App.5 th 11, 32; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 541. Moreover, negligence per se creates an...

Excerpt: ... relief in its absence).) Here, plaintiff provides no separate statement. Second, the moving party should propose a sanction that is tailored to the denied discovery (see Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389). Such tailored sanctions would entail some discussion of the content of the individual discovery requests. Because the motion does not contain any discussion of the content of the discovery requests, the reque...

Excerpt: ...employee or any other person.” Under this section, “in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.) Thus, in California “sovereign immunity is the rule” and “governmental liability is limited to exceptions specifically set forth by statute.” (Id.) Under Gov't Code § 844.6(a), a public ent...

Excerpt: ...12. The trial court has broad discretion in selecting which discovery sanction to impose in the face of discovery abuses, but either way California readily adheres to a “lesser sanction first” philosophy. Reedy v. Bussell (2007) 148 Cal.App.4 th 1272, 1293. Only if lesser sanctions fail to curb misuse should a trial court consider something like a terminating sanction. Van Sickle v. Gilbert (2011) 196 Cal.App.4 th 1495, 1516. A decision to or...

Excerpt: ...ied on by the defendant with a willful and conscious disregard of the...safety of others.” Civ. Code §3294(c)(1). The act of willfully becoming intoxicated and operating a motor vehicle can reasonably be held to reflect a conscious disregard for the safety of others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-96.) Plaintiff here pleads that Defendant was under the influence of three different narcotic medications which negatively affected h...

Excerpt: ...d, that TAM's motion was untimely and that TAM waived its motion by filing an unrelated motion to continue. Neither argument is availing. Initially, the TAM motion was timely filed. Per the Proof of Service, TAM was personally served on June 4, 2019. (See POS dated 06/10/19). Pursuant to C.C.P. §412.20(a)(3), TAM had 30-days therefrom to answer, resulting in a deadline of July 4, 2019. As July 4 th was a court holiday, this deadline was extended...

Excerpt: ...ef requested is thus moot as no writ may be issued on a sanction that has been paid. And the request for terminating sanctions fails on its face because a failure to timely pay discovery sanctions would not, in and of itself, be a sufficient basis to impose terminating sanctions. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [“a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never...

Excerpt: ...are not clearly stated and various agreements are referenced without specificity as to when the agreements were reached, the parties thereto, the material terms, and the manner in which they were created. The FAC then presents a list in ¶ 42 as the issues to be resolved, but without specifying the factual underpinning for each. COA 1 attempts to state a COA for conversion. A COA for conversion requires allegations of plaintiff's ownership or rig...

Excerpt: ...neral areas: the partnership concerning the recovery-business, the partnership concerning real-properties for the recovery business, and parties' relationship regarding Plaintiff's Greenleaf personal residence. The court finds that -- in pleading all the areas within the first 80 paragraphs of the complaint and incorporating all the allegations then into the individual causes of action (some of which have little do with others) – the individual...

Excerpt: ... into contact information for percipient witnesses. Motion to Consolidate Pursuant to CCP §1048(a), “when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Trials courts have...

Excerpt: ...rule, and (3) the lack of any duty owed by Defendants. The Sham Pleading Doctrine: Under the sham pleading doctrine, a plaintiff may not avoid a subsequent demurrer or summary judgment by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts that prove the pleaded facts false, without explanation. (Womack v. Lovell (2015) 237 Cal.App.4th 772, 787; McClain v. Octagon...

Excerpt: ...ture. The amount is explained in the Memorandum of Costs, and includes an IME, record review, and trial testimony. Defendant's showing is sufficient and the motion to tax costs is denied. The prevailing party in any civil action is entitled to recover costs as a matter of right. CCP §1032. To claim those costs, the prevailing party must file and serve a memorandum of costs within 15 days from the date the clerk (or any party) mails out notice of...

Excerpt: ... Khalil. On 3/13/19, defendants served their statutory designation of expert trial witnesses. Defendants did not designate any experts – medical or otherwise. Neither side designated any experts to opine upon the question of fault or forces involved in the accident itself. On 4/18/19, with trial less than two weeks away, plaintiff applied ex parte for permission to swap out one of his designated medical experts, Dr. Khalil, for another in the s...

Excerpt: ...p. 4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) In addition, the FAC remains uncertain. A demurrer for uncertainty lies where the defendant cannot reasonably determine what issues must be admitted or denied or what counts or claims are directed a...

Excerpt: ...App.4 th 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. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. 1st COA: ...

Excerpt: ...ent. Nevertheless, the motion is substantively deficient. Courts have a duty of inquiry regarding the grounds for the motion and are not required to accept at face value vague, unsupported, or uncertain representations as to reasons why an attorney seeks to withdraw. Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1134-1136. Counsel has a corresponding duty to respond and to describe the general nature of the issue, within the con...

Excerpt: ...udge Gooding, the judge assigned to the previously consolidated cases, found this case related to the previously consolidated cases and transferred this case to her department. That order has not been set aside or otherwise challenged as far as this Court knows. This Court is not empowered to revisit it. See Cal. Const. Art. VI, Sec. 4; in accord, Alvarez v. Superior Court (2010) 183 Cal.App.4 th 969, 982-983; In re Alberto (2002) 102 Cal.App.4th...

Excerpt: ... The allegations included within ¶7 are asserted on “information and belief.” Allegations made on “information and belief” are improper where a Complaint fails to allege “such information that lead[s] the [plaintiff] to believe that the allegations are true.” (Doe v. City of Los Angeles (2007) 42 Cal.4 th 531, 551, fn. 5; See also Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 792: “Plaintiff may allege on information and belief any...

Excerpt: ...ns should be denied and sanctions awarded to the Plaintiff. Based on all the moving papers, the court finds that Defendant's counsel did meet and confer sufficiently to permit these motions to go forward. The request for sanctions is denied. Plaintiff's objection to each motion and each accompanying separate statement based on untimeliness is overruled. As explained in Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 ...

Excerpt: ...5, 754). Per Robinson v. Grossman (1997) 57 Cal.App.4 th 634, a seller's agent does not owe “a duty to independently verify or disclaim the accuracy of the seller's representations…” (Id. at 643); however, “the sellers' agent is required…to act in good faith and not convey the seller's representations without a reasonable basis for believing them to be true.” (Id. [emphasis added]). Additionally, per Civil Code §1088, “[i]f an agen...

Excerpt: ...conditions.” Id. Here, Plaintiffs allegedly informally requested a second inspection of the subject property located at 2826 N. Dayna Street in Santa Ana, CA (the “Property”), but have refused or failed to provide a date for the inspection. As Defendant received a Notice to Abate Public Nuisance from the City of Santa Ana on 09/10/18, Defendant risks large fines by not remediating the issues with the Property while Plaintiffs fail to comple...

Excerpt: ...if such allegation is controverted, then plaintiff must establish, on the trial, the facts showing such performance. (CCP § 457). When a condition precedent imposed by the contract is an act to be performed by the plaintiff, the plaintiff may allege the performance in general terms. (4 Witkin, Cal. Proc. 5th Plead § 538 (2008).) Under these rules, it is not required that a plaintiff allege the specific facts showing his performance of the contr...

Excerpt: ...of limitations will not lie where the action may be, but is not necessarily, barred. It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4 th 32, 42; May v. City of Milpitas (2013) 217 Cal.App.4 th 1307, 1324. Plaintiff readily concedes that her complaint was filed outside the applicable two-...