Excerpt: ...rom Tara Hill (owner of the premises where the interaction occurred). The third motion is another motion to quash by specially appearing defendant Albaro Parada, claiming he was not effectively served. This Court will take each in turn. Discovery Motions – Granted Defendant Chief Financial Services first seeks an order compelling a further response to Form Interrogatory number 4.1 regarding available insurance coverage for the incident. Co-defe...

Excerpt: ... statements of law” is without merit. Interrogatories may properly ask about a party's contentions of fact or law, and the facts, witnesses, or writings on which these contentions are based. CCP §2030.010(b); Burke v. Superior Court (1969) 71 Cal.2 nd276, 281. Moreover, plaintiff included the statements of law in her complaint, although their inclusion was not authorized by CCP §425.10(a)(1) and (2). Having alleged these statements of law, pl...

Excerpt: ... requirements are similar to negligence but stricter. (See Snider v. Whitson (1960) 184 Cal.App.2d 211, 214-215.) The elements for a willful misconduct claim include the same elements of any negligence cause of action, i.e. duty, breach of duty, proximate cause, and damages (Id.), as well as additional elements: No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. (Id. at p. 215). In a...

Excerpt: ...make a determination that Plaintiff was discriminated against by Defendant or that Plaintiff was fired on the basis of her disability or inability to perform the duties required of her. The MSA seeks adjudication as to the Business Necessity affirmative defense. “Where the plaintiff is the moving party and the defendant relies upon an affirmative defense, it is incumbent upon a moving party plaintiff . . . to show that there is no material fact...

Excerpt: ...0 (consuming alcohol while driving) and Dawes v. Superior Court (1980) 111 Cal.App.3d 82 (swerving in and out of lanes amongst pedestrians). They collectively stand for the proposition that merely driving while intoxicated is not enough to support punitive damages, but that driving in a way which enhances an appreciable risk to others may. Here, plaintiffs allege only that defendant was impaired, as if impairment makes exposure to punitive damage...

Excerpt: ...se individual and specific orders of the Panel which sought to provide further instructions to the Receiver or sought to provide the Receiver with additional powers. The court notes that the parties are free to file ex-parte or noticed motions with this court to seek the relief provided in any of the Panel's orders which are stricken as a result of this order. Authorities The court may, upon motion of the injured party, or its own motion, correct...

Excerpt: ...vided while these motions were pending, and the responses “are now substantially compliant.” What remains at issue is thus only the requests for sanctions. Under C.C.P. § 2033.280(c), it is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to RFAs necessitated the motion. Therefore, despite the apparent discourtesy in bringing these motions without first advising n...

Excerpt: ...he Third Amended Complaint. The demurrer is overruled and the motion to strike is denied. Pertinent Background On 09/03/14, plaintiff entered into a services and joint venture agreement with the Boy Scouts to provide rowing equipment and instruction to the public. In pertinent part: 1. Boy Scouts would register participants and collect fees; 2. Boy Scouts would take a cut, and give the net to plaintiff; 3. Plaintiff would furnish and store the re...

Excerpt: ...g any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. C.C.P. § 2017.010. “The court shall limit the scope of discovery if it determines that the . . . intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to th...

Excerpt: ...tantial prejudice will result if the requested relief is granted. The Opposition asserts that there is insufficient time for Plaintiff to conduct additional discovery on this issue, but fails to identify any specific discovery that would be needed. The Motion is therefore granted. However, MP cannot simply withdraw the response – an amended response must be provided. The Court will allow MP to serve an amended verified response to RFA 16 within...

Excerpt: ...aims except for claims under Bus. & Prof. Code § 17200. Defendants have proven the existence of the arbitration agreements (“Agreements”) between them and the Signing Plaintiffs entered into in early 2018. Stokke Decl., Exs. A through F; Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal. 4th 951, 972, as modified (July 30, 1997). Plaintiffs have failed to show that the Agreements were either procedurally or substantively unconscionable, bo...

Excerpt: ...ons of the pleading are not evidence for this purpose. (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657; In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110) It must be shown that it is appropriate to exercise personal jurisdiction over each defendant on an individual basis. (See Calder v. Jones (1984) 465 U.S. 783, 790) General Jurisdiction Only a limited set of affiliations with a forum will render a defendant a...

Excerpt: ... 163 Cal.App.4th 896, 902; Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 577.) In addition, Plaintiff came forward with evidence showing that Defendant received the benefit of years of misapplied loan payments, of Plaintiff's payment of the property taxes and insurance, and of Plaintiff's refund of loan escrow funds, which the Defendant was not entitled to. At the time of the final accounting of their dealings, D...

Excerpt: ... in granting leave to amend: the parties may instead test its legal sufficiency by demurrer, motion, or other appropriate proceedings. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) This Motion is therefore granted – but without prejudice to any future motions defendants wish to file as to the merits of the proposed new claims. Plaintiffs may file their Second Amended Complaint in substantially the form proposed with...

Excerpt: ...hould not dismiss the case for failure to prosecute. Given plaintiff's complete failure to prosecute this case and his failure to respond to discovery or the court's orders to compel, the court grants the defendant's request for terminating sanctions. On 10/29/18, defendant's former counsel caused to be served upon plaintiff by regular US Mail four sets of discovery as follows:  Form Interrogatories  Special Interrogatories  Request for ...

Excerpt: ...he First, Second and Third Causes of Action (“COAs”), the contracts upon which the claims are based are also now adequately identified. A demurrer for uncertainty lies only where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied or what counts or claims are directed against it. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4 th 612, 616.) Any remaining ambiguities as ...

Excerpt: ...t be admitted or denied or what counts or claims are directed against it. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the basis for the claims asserted is unclear. The parties are alleged to be co-owners of the three properties identified with a 75%/25% respective interest. (Complaint ¶¶ 6-8.) Plaintiff asserts that he should be found to have more than a 75% interest due to “his contributions” (¶ 8) and Mah...

Excerpt: ... the forum state to justify personal jurisdiction, but the plaintiff has the right to conduct jurisdictional discovery to help develop the facts necessary to sustain this burden. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) As Plaintiff here has requested a continuance for this purpose and may be able to discover facts to assist it in establishing jurisdiction, the requested continuance is granted to permit limited jurisdictional di...

Excerpt: ...tion preceding the time of the fall (based on the Gleason records at 6:40 p.m. – 22 minutes before the fall). If the defense believes that the CD contains evidence which would alter the ruling on this motion, the court will entertain a motion to continue and request the submission of a new CD. On summary judgment, a moving defendant must “present evidence that would require . . . a trier of fact not to find any underlying material fact more l...

Excerpt: ...rform the exam has attested that it cannot properly be conducted in the shorter period of time that Plaintiff proposes. (Purisch Decl. ¶¶ 2-5.) The process will also be prolonged because Plaintiff will evidently require a Korean interpreter. (Perry Reply Decl. ¶ 4.) As the full period requested in the Motion thus appears necessary and proper here, the Motion is granted in full. Moving defendants are to: (a) submit a proposed order in accordanc...

Excerpt: ...r to Plaintiff's attorney and then following up with an email. From the information before the Court, Plaintiff's counsel did not respond to this effort. This is unacceptable especially in the face of the presentation of a massive 32-count complaint, which is the subject of a demurrer and motion to strike. Plaintiff's attorney is ordered to engage in meaningful meet and confer dialogue in the future and the Court intends to enforce this requireme...

Excerpt: ...4 th167, 184. The degree of detail required depends on the extent to which the defendant in fairness needs such detail. Less particularity is required when the defendant ought to have co-extensive or superior knowledge of the facts. Doe v. City of Los Angeles (2007) 42 Cal.4 th 531, 549-550; Zelig v. County of Los Angeles (2002) 27 Cal.4 th 1112, 1126. A demurrer must be denied if the pleading states a cause of action under any legal theory, irre...

Excerpt: ...ial facts exists as to that cause of action or a defense thereto. (Id.) Here, Plaintiff has failed to meet his burden. Both of the causes of action asserted require, as an element of the claim, that Plaintiff establish damages. On a motion for summary judgment, the moving plaintiff must show both the fact and the amount of damages. (Pajaro Valley Water Management Agency v. McGrath(2005) 128 Cal.App.4th 1093, 1106.) Here, Plaintiff has asserted th...

Excerpt: ...any and the personal guarantor Bradley Johnson. The complaint alleges causes of action for breach of contract, account stated and breach of guaranty. Authorities: The requisite elements for a prima facie showing of breach of contract are (1) existence of a contract, (2) the plaintiff's performance or excuse for non-performance, (3) defendant's breach, and (4) damage to plaintiff therefrom. Wall Street Network, Ltd. v. New York Times Co. (2008) 16...

Excerpt: ...le, “Giving back chump change” is not an actual cause of action; being rude to someone of Indian descent, though improper and unkind, is not a violation of Title VII of the Civil Rights Act of 1964, which relates to discrimination by employers; Civ. Code §§ 4080, 4100, 6528, and 6534 are code sections that contain only definitions, which cannot actually be violated; and many other issues that the Court will not specifically address at this ...