Excerpt: ...ismissal is entered." (CCP 1032(a)(4)_) On March 17, 2023, plaintiff requested dismissal of the entire action. Defendant is therefore the prevailing party entitled to recover costs (CCP 1032(b)_) Defendant is also the prevailing party under the relevant attorney fee statute. Plaintiffs fifth cause of action alleged defendant violated Business and Professions Code section 7108_5_ "In any action for the collection of funds wrongfully withheld, the ...

Excerpt: ...e depositions of Diego Lemer, Guillermo Tabanera, and Kenneth Neuman. Santos also moves to reopen discovery "if necessary to do so." Reopening discovery IS necessary _ Fact discovery closed at the latest on March 27, 2023, thirty days after the initial trial date. (Code Civ. Proc_, 2024_020, subd_ (a)_) On January 20, 2023, pursuant to the parties' joint motion, the coult continued the trial to September 13, 2023. In their joint motion, the parti...

Excerpt: ...1 matters of examination. (Mendoza Decl_, Ex. 6.) Except for matter Nos_ 27 and 28, defendant made valid objections to the notice of deposition. Matter Nos. 1 and 2 ask about the vehicle's service and warranty history and about the applicable warranties. Defendant agreed to produce a witness to testify about GM's understanding of the vehicle's service, maintenance, and repair history under the warranty and abut the terms of the vehicle's warranty...

Excerpt: ...t the information discloses a violation of state or federal statute, or a violation Ofor noncompliance with a local, state, or federal rule or regulation." Plaintiff fails to allege sufficient facts for this cause of action because he does not allege he disclosed something he reasonably believed violated a state or federal statute, rule, or regulation. "[A]n employee need not prove an actual violation of law; it suffices if the employer fired him...

Excerpt: ...dical Center v. PacifiCare of California (2003) 31 Cal_4th 1187, 1195 (St. Agnes)_) It is not settled whether waiving the right to arbitrate requires prejudice to the opposing party. (Davis v. Shiekh Shoes, LLC (2022) 84 956, 966, fil_ 5 (Davis); see also Desert Regional Medical Center, Inc. v. Miller (2022) 87 Cal_App_5th 295, 322.) As Davis notes, the question is pending before the California Supreme Court in Quach v. California Commerce Club, ...

Excerpt: ...s regarding the subject property The documents were recorded by the Los Angeles County Recorder's Office. Their existence, facial contents, and legal effects are subject to judicial notice under Evidence Code 452(c) and (h). (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal 4th 919, 924, fn. 1, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 calApp_4th 1106, 1116-1117.) Defendants' 14 requests for judicial notice are grante...

Excerpt: ...ch was refused in whole or part, or granted conditionally or on terns, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown." (CCP 1008(b)_) This is a renewed motion. Defendant moved to t...

Excerpt: ...monetary sanction." (CCP S 2030.300(e) [interrogatories]; S 2031.310(i) [requests for production].) Meet and Confer Plaintiff argues defendant did not adequately meet and confer before filing these motions. The record shows otherwise. On March 3, 2023, defendant sent plaintiffs counsel a detailed meet and confer letter. (Mounedji Decl., 7, Ex. C.) Plaintiffs counsel replied he was "happy to discuss over the phone your concerns in your letter. Ple...

Excerpt: ...nd determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he [or she] may be entitled to ' " (Deutsche Bank National Trust Co. v. Pyle (2017) 13 CalApp_5th 513, 524.) Quiet title concerns "adverse claims to the title of the plaintiff against which a determination is sought." (CCP 761 _020(c)_) The second amended cross-complaint alleges no adverse or compet...

Excerpt: ...) ) "'Prevailing party' includes a defendant in whose favor a dismissal is entered." (CCP 1032(a) ) Plaintiff requested dismissal of defendant Salle Johnson. That dismissal was entered on February 15, 2023. Johnson is therefore a prevailing party entitled to recover her costs. Johnson claims only two costs: the $435 first appearance fee for her demurer and the $71.19 fee for electronic filing Those costs are allowed. (CCP 1033_5(a)(1) ["Filing, m...

Excerpt: ...308, 1315 (E-Fab) ) "[T]he defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred." (ld. at p. 1316.) The court must determine which statute of limitations applies and when the claim accrued. (Ibid.) Generally, an action to enforce a mechanic's lien must be filed "within 90 days after recordation of the claim of lien." (Civ. Code, 8460(a)_) But "if ...

Excerpt: ...cause of his or her membership in a protected class. (Gov Code, 12940(i)(1)_) "The law prohibiting harassment IS violated when the workplace is permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." (Nazir v. United Airlines, Inc. (2009) 178 CalApp_4th 243, 263, internal quotes and alterations omitted.) ...

Excerpt: ...bly in good faith and fair dealing through negotiation. If unresolved, any claim or dispute, whether in contract, tort, statute, Labor Code, employment law or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute) between both parties or their employees, agents, successors or assigns, which arises out of or is related to this contract or any resulting transaction or relation...

Excerpt: ...ant Paramount Plaza, LLC (Paramount) to requests for production Nos. 153, 154, 157, 161, and 162. (Plaintiffs reply states the parties resolved their disputes over other requests.) Because Paramount served supplemental responses, the motion is moot as to the substance of its responses. The court declines to rule on the merits of the supplemental responses to requests Nos_ 153, 154, 157, 161, and 162. Plaintiff also did not make an adequate attemp...

Excerpt: ...h prays for punitive damages. A party may move to strike a "demand for judgment requesting reliefnotsupported bythe allegations of the complaint." (CCP S 431.100(3).) Courts may strike allegations related to punitive damages where the facts alleged "do not rise to the level of malice, oppression or fraud necessa$ to recover punitive damages under Civil Code section 3294. (Turman v. Turning Point ofCentral California, Inc. (2010) 191 Cal.App.4th 5...

Excerpt: ...udicial notice are granted. Demurrer Defendants Marc A. Collins, Azim Khanmohamed, and Collins & Khan LLP demur to all three causes of action alleged in the first amended complaint by plaintiffs Marshall Knoll and Reni Knoll_ 1. Professional Negligence Plaintiffs do not allege sufficient facts for professional negligence or legal malpractice Its "elements are (1) the duty of the attorney to use such skill, prudence, and diligence as members of hi...

Excerpt: ...mmons on her. Courts may "set aside any void judgment or order." (CCP 473(d)_) Here, the judgment is at most voidable—not void. " [J]udgments which on their face or on the judgment roll affirmatively disclose their invalidity' are void judgments and those which do not show the invalidity on their face as voidable judgments." (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 13 18, 1332 ) "Generally, defendants have six months from...

Excerpt: ...estoppel and the opinion in Felisilda v. FCA US LLC (2020) 53 CalApp_5th 486 (Felisüda)_ "[A] nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonslgnatory are intimately founded in and intertwined with the underlying contract obligations." (ld. at p. 495_) After defendant filed this motion, the Second District Court of Appeal issued an opimon di...

Excerpt: ...of action for interference with easement, the second cause of action for negligence, the fourth cause of action for nuisance, and the seventh cause of action for declaratory relief solely on the grounds that "no valid easement exists." (Demurrer, p. 6.) The claims for negligence and nuisance do not depend on the validity of the disputed easement. Plaintiffs allege sufficient facts for interference with easement and for declaratory relief. Defenda...

Excerpt: ...t contradicts the allegation that defendants did not pay the money they agreed to pay plaintiff. "Facts appearing in attached exhibits control over contradictory factual allegations in operative complaint" (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 39.) Defendants' argument relies on a fundamental misinterpretation (or mischaracterization) of the deed of trust attached as exhibit 1 to the complaint. The c...

Excerpt: ...t contradicts the allegation that defendants did not pay the money they agreed to pay plaintiff. "Facts appearing in attached exhibits control over contradictory factual allegations in operative complaint" (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 39.) Defendants' argument relies on a fundamental misinterpretation (or mischaracterization) of the deed of trust attached as exhibit 1 to the complaint. The c...

Excerpt: ...n Defendant does not dispute that he did not comply with the notice of his deposition. He instead argues plaintiff improperly demanded to conduct the deposition in person rather than remotely. Defendant argues he has the right to testify remotely at deposition under Code of Civil Procedure section 2025.310 or California Rules of Court, rule 3.1010. Both provisions, however, give the deposing party (or that party's attorney) the right to be at the...

Excerpt: ...tes a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) The complaint alleges sufficient facts to constitute a cause of action under at least one legal theory: the Unruh Civil Rights Act. “All persons within the jurisdiction of this state are free and equa...

Excerpt: ...a supplemental demand to inspect, copy, test, or sample any later acquired or discovered documents, tangible things, land or other property, or electronically stored information in the possession, custody, or control of the party on whom the demand is made.” (CCP § 2031.050(a).) When the responding party fails to timely respond to requests for production, the requesting party may move for an order compelling responses. (CCP § 2031.300(b).) Fa...

Excerpt: ...uested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on ...