Excerpt: ...specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).” CCP §2033.280(b). “The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP §2033.280(c)....

Excerpt: ...n a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion." See Morgan v. Sup.Ct.(1959) 172 Cal.App.2d 527, 530 (emphasis added). Courts are bound to apply a policy of great liberality in permitting amendments to the complaint "at any stage of the proceedings, up to and including trial," absent prejudice to the adverse party. See Atkinson v. ...

Excerpt: ...der this Bond to the obliges, or either of them, unless said obligees, or either of them, shall make payment to the Principal, strictly in accordance with the terms of said Contract as to payments, and shall perform all other obligations to be performed, under said Contract at the time and in the manner therein set forth.” The clause therefore relieves the surety of any obligation to pay on the bond in the event Shores LLC defaults on or breach...

Excerpt: ...onvention. The second ground for the motion is moot. Defendant concedes that, pursuant to Water <00130014001a000c000f00 00580048000300260052[nvention permits international service by mail under Section 10(a), unless expressly objected to by the country in which service is being effected. Defendant states in the opening brief that Ireland has only objected to methods of service under 10(b) and (c). The opposition also spends 5 out of 12 pages of i...

Excerpt: ...to the RFPs also included objections on grounds that Defendant should have the documents in his possession already or they are public documents that Defendant can obtain. Plaintiff's objections are meritless. The mere fact that Defendant may have some of the responsive documents in his possession are not grounds for Plaintiff to refuse to produce responsive documents. An RFP obligates the Plaintiff to provide responsive documents in her possessio...

Excerpt: ...ests of justice” at any time during the course of the action. See CCP §428.50(c). On the other hand, if the proposed cross-complaint is compulsory, leave must be granted so long as defendant is acting in good faith. See CCP §426.50 (court “shall” grant leave to file a compulsory x-complaint brought in good-faith); see also Weil & Brown, Civil Procedure Before Trial, ¶6:563. The policy favoring amendment is so strong that it is a rare cas...

Excerpt: ... to collect from any insurance company including, but not limited to, Noridian Insurance Company any amounts payable to the “Business,” which shall include, but not limited to Joint Effort Medical Wellness, Total Wellness Rehabilitation, Total Wellness Rehab, Gratto and any other business conducted by Shapow from the Mindanao Premises or with which he is affiliated; and (3) enjoining Shapow from changing the name of the company that does busi...

Excerpt: ...�same” cause of action that is asserted in both the answer, as a defense, and the underlying complaint. Cross-Defendant critically misunderstands perhaps the most important element of a plea for abatement—that another action is pending. (CCP § 430.10(c).) Abatement does not lie with respect to cross suits pending in same court where relationship of parties to suits is reversed. (Daly v. White (1950) 100 Cal.App.2d 22; Hamm v. San Joaquin & K...

Excerpt: ... because the Court ordered Reick to appear at trial with documents relating to his and Yorktown's financial condition. Reick defied the Court's order and failed entirely to appear at trial. Defendants failed to comply with the Court's order. Plaintiff should not be penalized for its inability to present financial condition evidence when Defendants failed to produce that evidence in contravention of the Court's order. Defendants argue Reick was ne...

Excerpt: ...easonable care and diligence in the performance of their respective duties in regard to the maintenance, management, repair or other services at the Condo. See Decl. of Z. Glass, ¶¶56 and 57. Willy's attacks (1) the existence of a duty under the CC&Rs and Civil Code §4775 and (2) causation as to the alleged breach of its general tort duty of care. Willy's negates the allegation that it was subject to any duty under the CC&Rs and Civil Code §4...

Excerpt: ...aintiff is also ordered to pay sanctions within that time. ANALYSIS: Motion to Compel Further Responses <0056005300520051005600 00480003004900520055>m interrogatories at issue on (1) 9/8/17 initial responses were served; (2) on 10/10/17 further responses were served; and (3) on 11/9/17 a second set of further responses was served. Defendant met and conferred by correspondence only (1) as to the initial responses on 9/22/17 and as to proposed furt...

Excerpt: ...ance a cognizable fraud claim, "every element of the cause of action . . . must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a fraud claim deficient in any material respect." (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) The heightened particularity requirement necessitates pleading facts that "show how, when, ...

Excerpt: ...the court take judicial notice of the following documents: 1. Cross-Complaint of Andy Kim and Info Tech in the Prior Case; 2. Online Court Docket for Prior Case; 3. Second Amended Complaint for Prior Case; 4. Court's Minute Order Granting Terminating Sanctions in Prior Case; and 5. Appellants Notice Designating Record on Appeal in Prior Case. This request is GRANTED per Evid. Code § 452(d). Generally, a “fraudulent conveyance is a transfer by ...

Excerpt: ...den of persuasion that there is no triable issue of material fact and that he is entitled to a judgment as a matter of law. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. See Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4 th 826, 855. Pursuant to Code of C...

Excerpt: .... Plaintiff argues the fees incurred are justified given the long and contentious history of the case. The matter was fully tried before the Court over several days and involved complex bookkeeping issues. Despite several attempts at settling the matter, Defendant refused and chose to fully litigate the allegations against him. Pursuant to §6.7 of the Management Services Agreement, “if a legal action is commenced by either party to enforce or ...

Excerpt: ... per CCP §2032.250(a). Plaintiff alleges that she suffered nerve damage as a result of Defendant's negligently performed surgery and there is a dispute as to what nerve was allegedly damaged. An EMG and an NCS are the most accurate tests for determining plaintiff's current condition. Good cause therefore exists to compel the tests requested. Plaintiff is only willing to submit to an EMG and NCS performed by an agreed upon, independent medical ph...

Excerpt: ...dditional amounts incurred in this proceeding, including a reserve of $10,000 to wind up the receivership estate; (3) receiver to pay Receiver fees, legal fees, accounting fees and federal and state income taxes, if any, due and payable by the Receiver; (4) to the extent the Receiver has insufficient funds to pay, the parties be responsible for payment of Receiver fees, legal fees, accounting fees and federal and state income tax; (5) that neithe...

Excerpt: ... any relief from this Court. Plaintiff also argues that the motion to quash is untimely, as a motion to quash must be brought within the time to answer. The time to answer expired. Defendant Ambueie is challenging the Court's personal jurisdiction over him based on his lack of minimum contacts. Defendant's failure to bring an express and separate motion to vacate the default against him does not preclude the Court from assessing the merits of his...

Excerpt: ...tatute.” A real party in interest is one who has “an actual and substantial interest in the subject matter of the action and who would be benefited or injured by the judgment in the action.” (Martin v. Bridgeport Community Assn., Inc.(2009) 173 Cal. App. 4th 1024, 1031-1032.) “A real party in interest is one who has ‘an actual and substantial interest in the subject matter of the action and who would be benefited or injured by the judgm...

Excerpt: ...ppear at the 1/9/18 OSC re: Dismissal. Because Plaintiff fails to provide any explanation for her failure to appear at the 1/9/18 OSC re: Dismissal, Plaintiff fails to establish grounds for discretionary relief, i.e. that the dismissal was entered due to her excusable neglect, reasonable mistake, surprise or inadvertence. Plaintiff's motion also fails to comply with CRC Rule 3.1112. The motion is not accompanied by a notice of motion, the motion ...

Excerpt: ... Secretary of State website. The process server did not ask for Zobrist but instead served a guest who did not live at the address. The process server threw the papers at the guest and left. Defendant argue Plaintiff failed to personally serve Defendant's agent or officers. Service was also effectuated at Zobrist's home, not at the Company's offices. Defendant has not received copies of the summons and complaint where service was attempted. Plain...

Excerpt: ... to the litigation privilege, Plaintiffs cannot demonstrate a probability of prevailing on their 1 st, 2 nd, 4 th and 6 th through 11 th claims to the extent they are based on the protected conduct of Flynn's communication and dissemination of the contents of the recorded conversation in anticipation of and during litigation. However, as to the 3 rd c/a for breach of contract, the litigation privilege does not apply and Plaintiffs demonstrate the...

Excerpt: ... that defendants intentionally concealed or suppressed the fact with the intent to defraud the plaintiffs; (4) plaintiffs were unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact; (5) that plaintiffs suffered damages; and (6) that defendants' fraudulent concealment was the cause of plaintiffs' damages. (Marketing <0003001900030026004400 004b0003001900130016>, 613.) All fraud actions are subject...

Excerpt: ...yer's negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564–1565.) Negligence liability will be imposed upon the employer if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) As such, “Cali...

Excerpt: ...ay, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleadings.” (CCP 473(a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the courts discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Plaintiff's Complaint alleges that Defendants' dietary supplements, “N...

Excerpt: ... 3- 700(c) provides that an attorney may withdraw based on any of the following: (1) The client (a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law, or (b) seeks to pursue an illegal course of conduct, or (c) insists that the member pursue a course of conduct that is illegal or that is prohibited under the...

Excerpt: ...014 and Defendant has advanced almost $15,000 in funds to keep property taxes and homeowner's insurance current. The current amount due to pay off <0052005900480055000300 00030047005800480003>to Plaintiff's delinquency. Defendant argues that Plaintiff is manipulating the justice system to further delay non-judicial foreclosure. Defendant also argues the Court had no jurisdiction to enter the temporary restraining order given the pendency of the a...

Excerpt: ... on the analysis below), and 3 rd causes of action, and SUSTAINED WITHOUT LEAVE as to the 2 nd and 4 th cause of action. ANALYSIS: Because the demurrers are virtually identical, they will be discussed together. Professional Negligence – 1 st C/A: Defendant demurs to the first cause of action on statute of limitations grounds. The Demurrer is sustained with 20 days leave to amend. An action for personal injury or death caused by the professional...

Excerpt: ...9 months before the trial date. Before the matter was transferred to Santa Monica, the PI court set the matter for trial on June 7, 2018 and this motion was filed on September 26, 2017. Defendant's objection based on timeliness is overruled. When matters are sent from the PI court to an IC, all future dates are vacated. This procedure is understandable since it would be impossible to an IC with its own calendar to adopt all trial dates set by ano...

Excerpt: ...Cross- Complaint that the guaranty is valid and there are emails from the owner of Defendant indicating the existence and validity of the guaranty. (2) There is uncontroverted evidence that Plaintiff fully performed the terms of the agreement by timely lending the funds to the Borrower. (3) It is undisputed that Defendant is in breach of the guaranty, and Defendant has acknowledged that it defaulted on the guaranty agreement and remains in defaul...

Excerpt: ...iff's employment, termination, and pay is DENIED. No sanctions. (See below regarding the court's concern about the actions of counsel at the previous deposition). Plaintiff Gu moves to compel the deposition of Sherry Wang, Joseph Su, Sheena Tong, Bernice Navarro, and WHPM Inc.'s PMK per CCP 2025.450. If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designa...

Excerpt: ...on any of the grounds under Rule 3-700(C). Rule 3- 700(c) provides that an attorney may withdraw based on any of the following: (1) The client (a) insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law, or (b) seeks to pursue an illegal course of conduct, or (c) insists that the member pursue a course of conduct ...

Excerpt: ... is a valid basis for demurrer. Though Plaintiff has pleaded the essential elements of professional negligence, Defendant cannot adequately respond to the claim without Plaintiff providing, at minimum, some general indication as to when the events giving rise to liability happened. It is difficult to imagine how any Defendant could admit or deny allegations that they did certain acts when there is no indication as to when the acts alleged took pl...

Excerpt: ... Exhibit 4 – Temporary Restraining Order filed July 9, 2012 in Case No. SC117683; 5. Exhibit 5 – Preliminary Injunction dated November 11, 2010, in LACSC Case No. SC117683; 6. Exhibit 6 – Opinion of California Court of Appeal Case No. B230938 upholding the preliminary injunction. 7. Exhibit 7 – U.S. Bank's Unlawful Detainer action Case No. 12R04263 8. Exhibit 8 – Settlement Agreement 9. Motion for Summary Judgment filed April 2, 2013, i...

Excerpt: ...s, and attorneys' fees for a total of $441,982.55. Failure to Tab Exhibits: Plaintiff's counsel should note: “Each paper exhibit must be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” CRC, rule 3.1110(f)(3). All parties are ORDERED to strictly comply with this rule or else risk their exhibits being rejected, struck, and/or disregarded, and/or a mon...

Excerpt: ...ction of documents is GRANTED. (CCP 2030.290, 2031.300.) Plaintiff Chou is ordered to respond to discovery without objections within 10 days. Sanctions are imposed against Plaintiff Chou in the sum of $1,835.00, payable within 30 days. Defendant Smith moves to compel responses to form interrogatories, special interrogatories, and request for inspection and production of documents, and for sanctions. CCP 2030.290(b) and 2031.300(b) allow the propo...

Excerpt: ...red within one year from the date of an accident. While the policy was effective, plaintiff was involved in an automobile accident, resulting in injury and reasonable medical bills to treat the injury. Nevertheless, defendant denied plaintiff's claim for benefits sought under the policy. Defendant denied coverage because it put its own economic interest ahead of plaintiff's and in retaliation for plaintiff's family members' making prior claims an...

Excerpt: ...tions limit the amount of damages awardable on default. The demand sets a ceiling on recovery. (Greenup v. Rodman (1986) 42 Cal.3d 822, 824.) If no specific damages are alleged in the complaint, a prayer “for such other and further relief as the court deems just” will not support a default judgment for any specific sum. (See Becker v. S.P.V. Const. Co., Inc. (1980) 27 Cal.3d 489, 494‐ 495.) The Complaint prays for judgment “in excess of $...

Excerpt: ...s: Plaintiff's counsel should note: “Each paper exhibit must be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” CRC, rule 3.1110(f)(3). All parties are ORDERED to strictly comply with this rule or else risk their exhibits being rejected, struck, and/or disregarded, and/or a monetary sanction. This order applies equally to fax filed papers and courte...

Excerpt: .... ANALYSIS: If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories and RFAs. See Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220–221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255. Where a party moves to compel further responses to requests for production, the moving party must demonstrate good cause, i.e. relevance to the...

Excerpt: ...respond was entirely the result of excusable neglect and/or reasonable mistake. Pursuant to CCP §418.10, the service and filing of a notice of motion to quash extends the defendant's time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant's time to plead for an additional period not exceeding 20 days. ...

Excerpt: ...g two stays (April 11 to May 14, 2017 and June 13 to mid‐July 2017) causing dehydration, malnutrition, urinary tract infections, and septic shock. On August 21, 2017, plaintiff filed a complaint for (1) dependent abuse / negligent, (2) negligence, (3) violation of Health and Safety Code section 1430(B), and (4) willful misconduct. On December 19, 2017, North American filed this opposed demurrer to the first and fourth causes of action for insuf...

Excerpt: ...e assets and execute a Trademark Assignment Form and a Patent Assignment Order transferring them to the Sheriff's Department so that they may be sold at public auction. These assets were identified during Defendant's Judgment Debtor Examination. Contrary to Yang's representations that he transferred these trademarks, the USPTO does not have any record of such transfers and per 15 USC §1060, any assignment of trademarks must be in writing and dul...

Excerpt: .... In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence'; ‘conclusory allegations will not withstand demurrer.'” (Fox v. Ethicon Endo–Surgery, Inc. (2005) 35 C4th 797, 808.) “The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if...they have the opportunity to obtain knowledge from sou...

Excerpt: ...preference is necessary to prevent prejudicing the party's interest <005500510048005c000300 004c0052005100030049[or trial preference under CCP §36(a) is sufficient and may be made on information and belief. See CCP §36.5. If a motion for trial preference is granted, the court shall set the trial date not more than 120 days from granting of the motion. See CCP §36(f). Plaintiff seeks an early trial date based on her age and her health. Plai...

Excerpt: ... (Set One) is GRANTED. Defendants are ordered to serve further responses within 20 days. No opposition received. ANALYSIS: If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories and RFAs. See Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal.2d 210, 220–221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal.4th 245, 255. Where a party moves to compel fu...

Excerpt: ...c. (1994) 24 Cal.App.4th 1426, 1441-1442. Houghton must therefore rebut the presumption of proper service. Houghton fails to do so. Houghton's only objection is that service was rendered at his workplace, not his home address or usual abode. However, Plaintiff is entitled under CCP §415.20 to effect substitute service “the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United S...

Excerpt: ...served on 10/22/17 and mailed on 10/24/17. Defendant Amazing LA Tours, Inc. was subserved on 12/20/17 with the complaint, summons and this application for writ of possession. Neither defendant has any equity in the collateral, because the outstanding balance on the Loan exceeds the FMV of the vehicle. No undertaking is therefore required. ...

Excerpt: ... Billips, Defendant's CEO, testifies that she did not know she was not allowed to file an answer on behalf of the corporation. Defendant submits a proposed answer. Based on this showing, Defendant allowed a default to be entered against it based on excusable neglect or mistake. Discretionary relief is therefore proper under CCP §473(b). The motion is unopposed. ...

Excerpt: ... relevant to the credibility of the process server's claim that Hart was personally served. Hart's only relevant testimony regarding the purported service consists of two sentences in ¶2 of her declaration: “The Proof of Service of the process server is not true. I was never served, much less personally served, with the summons and complaint for Plaintiff's unlawful detainer complaint.” Plaintiff's POS on Hart is properly completed by a regi...