Excerpt: ...ted in CRC 3.300(a). On May 30, 2019, the court ordered judgment in favor of the plaintiff in 18DWSC05279. Defendants filed their Notice of Appeal on July 12, 2019 and the appeal of the small claims judgment is set for trial de novo on February 6, 2020 in Department 1 of the Bellflower Courthouse. On November 7, 2019, Defendants filed a Motion to Relate Cases in 18STLC13218 with the hearing set in Department 1. The motion is unopposed. Defendants...

Excerpt: ...ement filed its 48th breach of contract case against tenants of the Burlington Apartments. On July 10, 2019, Plaintiff FML Management Corp. filed a Notice of Related Case listing all 48 cases. Counsel is reminded of the duty to promptly file a Notice of Related Case. (CRC 3.300(e).) The cases identified in the Notice are: - 18STUD09889 FML v. Hernandez* - 18STUD09892 FML v. Hernandez* - 18STUD09894 FML v. Fernandez* - 18STUD10834 FML v. Xum* - 18...

Excerpt: ...atter, FSIC purports to quote extensively from CCP § 387(a). However, FSIC cites the prior version of the statute. Code of Civil Procedure § 387 was amended effective January 1, 2018 and subdivision (a) now merely provides “”For purposes of this section: (1) ‘Defendant' includes a cross-defendant. (2) ‘Plaintiff' includes a cross-complainant.” Counsel is admonished to undertake to more thoroughly research applicable law and file plead...

Excerpt: ...ction of emotional distress, and punitive damages. Defendant's attempt to argue how the merits of the case are likely to be or should be adjudicated is improper. (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 277 (“This standard involves an evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim.”).) “Pain and suffering are not subject to precise measurement by any scale, and their translation ...

Excerpt: ...ions 1, 2, or 3 of paragraph 5 regarding whether service was made at a business, home, or whether a physical address is unknown. Additionally, the declaration of diligence attached to the proof of service does not satisfy the diligence requirements. “[A]n individual may be served by substitute service only after a good faith effort at personal service has first been made: the burden is on the plaintiff to show that the summons and complaint can...

Excerpt: ...Request for Monetary Sanctions is MOOT. The court declines to impose sanctions. The parties do not dispute that Defendants responses were untimely and that responses were served on June 27, 2018, after the motion was filed. Neither party has provided the court with the responses served. Defendants contend they do not contain objections (Grebow Decl. ¶ 10), while Plaintiff contends the responses contain objections (Reply at 2.) As stated by the c...

Excerpt: ...plaint. Defendant requests the court take judicial notice of the complaint and the two notices of errata to the complaint in this action. The request is granted, though unnecessary, as the court reviews the operative pleading in ruling on a demurrer, regardless of whether the parties request judicial notice thereof. Defendants demur to each cause of action asserted in the complaint. Fraud and Deceit (Fourth Cause of Action) and Negligent Misrepre...

Excerpt: ...286.2 and 1286.6, no later than July 31, 2018. The briefing will be simultaneous. The parties are ordered to deliver a <00160014000f0003001500 130014001b0011[ .Applicable Timeline The arbitration proceedings were conducted in three phases with the issue of damages decided in Phase I, the issue of punitive damages decided in Phase II, and the issue of attorneys' fees and costs decided in Phase III. <00550003004c0056005600 0051005700480055004c[m aw...

Excerpt: ...below the bottom of the page bearing the exhibit designation. It also requires an index to exhibits be provided. Defendant failed to follow this rule. Its exhibits are not tabbed or indexed. With approximately 400 cases on the court's docket, the importance of following these rules to the letter cannot be overemphasized, not to mention that if a party wishes the court to review evidence it submits, the party should follow the applicable procedura...

Excerpt: ...ial facts regarding the defects in the 2013-2017 Nissan Sentra's CVT in an effort to induce consumers to purchase its products.” Nissan's Objection No. 1 is sustained and the remaining objections are overruled. The declaration of Amy Morse substantially complies with the requirements set forth in (CRC 3.1324.) The amendment adds a claim for fraud and the amendment is necessary and proper to assert all claims arising out of Plaintiff's purchase ...

Excerpt: ...hat each exhibit be separated by a tab extending below the bottom of the page bearing the exhibit designation. It also requires an index to exhibits be provided. Plaintiff failed to follow this rule. The exhibits are not tabbed or indexed. With approximately 400 cases on the court's docket, the importance of following these rules to the letter cannot be overemphasized, not to mention that if a party wishes the court to review evidence it submits,...

Excerpt: ...int. 2. Set forth the facts on which the plaintiff seeks to recover. 3. Describe the premises with reasonable certainty. 4. If the action is based on paragraph (2) of Section 1161, state the amount of rent in default. 5. State specifically the method used to serve the defendant with the notice or notices of termination upon which the complaint is based. This requirement may be satisfied by using and completing all items relating to service of the...

Excerpt: ... involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc., § 1281.4.) Defendants highlight numerous identical allegations in the First Amended Co...

Excerpt: ...y the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” “Section 664.6 was enacted to provide a summary procedure for specifically e...

Excerpt: ...rected notice of the motion until June 11, 2018 by regular mail and email, which did not provide the statutorily required 16-day notice period. (CCP § 1005(b).) While the court will continue the hearing and permit Plaintiff to address the merits, the court finds the conduct by counsel for all parties troubling. As an initial matter, both parties accuse the other of failing to follow the applicable rules, yet neither have complied with CRC 3.1110...

Excerpt: ...court actions outside of Los Angeles. The requests are DENIED. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 n.2 (“any matter to be judicially noticed must be relevant to a material issue.”).) Plaintiff's motion seeks $64,008.50 in attorneys' fees and costs. (Mo. at 12. Parker Decl. ¶ 14.) Attorney Parker states that this amount comprises “18,903.00 fees demanded by PLA [Parker Law APC], $60.00 costs demanded by ...

Excerpt: ...laims are stayed pending the outcome of arbitration. Defendant USC moves the court to compel Plaintiff's fourth and fifth causes of action to binding arbitration pursuant to an Agreement to Arbitrate signed by Plaintiff. The motion was joined by Defendant Corral, who is also named as a Defendant in these two claims. “California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving...

Excerpt: ...t judgment in an amount in excess of that demanded in the complaint.”); Janssen v. Luu (1997) 57 Cal.App.4th 272, 275 (“the amount of damages communicated to the defaulting defendant sets the ceiling on the plaintiff's recovery, and that a default judgment in excess of that amount is void.”) “Section 580, and related sections ... 425.10 and 425.11, aim to ensure that a defendant who declines to contest an action does not thereby subje...

Excerpt: ...avoid the necessity of yet another motion to extend the stay. <0176011a01020176019a00 00030064017d018c018c>ance's motion to stay action pending the conclusion of the administrative process regarding Plaintiff's termination. The court stayed the matter and provided in relevant part: The matter will be set on calendar . . . for a status conference on December 13, 2017, at 8:30 a.m. If plaintiff's administrative matter is decided before then, plaint...

Excerpt: ... an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections <0003004900580055005700 00520049000300460052>nvenience or to avoid prej...

Excerpt: ...ion: (1) Failure to Pay Wages, (2) Failure to Pay Overtime Compensation, (3) Failure to Provide Meal Periods, (4) Denial of Law Rest Breaks, (5) Unfair Business Practices, and (6) Failure to Provide Accurate, Itemized Wage Statements. Plaintiff now moves the court for final approval of the settlement and for attorneys' fees. Under California Rules of Court, rule 3.769(a), “[a] settlement or compromise of an entire class action, or of a cause of...

Excerpt: ...claration. Additionally, the court has no record of a separately filed proof of service. Therefore, Plaintiff must provide a proof of service at the hearing or otherwise demonstrate to the satisfaction of the court that the motion was properly served. Otherwise, the motion will be placed off calendar. The court finds the parties entered into a valid and binding settlement agreement. (Fisher Decl. Ex. 1.) The agreement required Defendant RMI to pa...

Excerpt: ...d that if he fails to follow this procedural rule again he will be sanctioned no less than $1000.00. Additionally and amazingly given defense counsel's previous gaffe in this regard, Defendant once again failed to timely file its motion as the last day to timely file the motion based upon the June 13, 2018 hearing date was May 21, 2018. (CCP § 1005(b).) However, Cross-Defendants responded on the merits and have waived any objection to the late f...

Excerpt: ...stitute a cause of action against Defendant. “[T]he liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care to the plaintiff.” (San Mateo Union High School District v. County of San Mateo (2013) 213 Cal.App.4th 418, 428.) “Since all government tort liability is dependent upon the existence of an authorizing statute, a public entity's duty created by st...

Excerpt: ...ntends that he has settled only his PAGA claim and the settlement is to have no effect on the other employees. Defendant has failed to provide the court with any evidence that the proposed settlement was submitted to LWDA as required by Labor Code § 2699(l)(2), which requires that the proposed settlement be submitted to the Labor and Workforce Development Agency. The proof of service filed in connection with the instant motion does not list the ...

Excerpt: ...mir Malekan are deemed admitted. Defendant Amir Malekan is ordered to serve verified responses, without objection, to Plaintiff's Form Interrogatories, Set Three, Request for Production, Set Two, Special <019a011e018c018c017d01 03550003005e011e019a> One, within 20 days. The court imposes sanctions in the amount of $924.00 against Defendant Amir Malekan, consisting of $300.00 in motion fees and $624.00 in attorney's fees. <0110016c0003019a010201 0...

Excerpt: ...s. 7, 12-13, 18-19, 24-25, 28-37, 79-83, and 96 Plaintiff describes these requests as encompassing two categories: (1) those relating to Defendant's internal investigation and analysis of the defects plaguing Plaintiff's vehicle and establishing that Defendant previously knew of such defects (Nos. 12-13, 18-19, 24-25, and 28- 37) and (2) those relating to Defendant's warranty and vehicle repurchase policies, procedures, and practices (Nos. 7, 79-...

Excerpt: ...000301c1015d01 010201c701900003016fLeave to amend and DENIED as to the request for attorneys' fees. Defendants demur to each cause of action asserted in the Complaint. Breach of Contract (First Cause of Action) To state a claim for breach of contract, a Plaintiff must allege sufficient facts to establish: (1) a contract between the parties; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaint...

Excerpt: ... Stratman, & Williams‐Abrego, who is purported to be counsel for Defendants. “The requirement of notice is so fundamental to concepts of due process that it is deemed <015d017601500355000301 019000030189018c017dLvided by service of process; it is <011a015d0110019a015d01 019a0003015d01760003La matter rather than proof of service. Hence, when proof of service is mislaid, lost or otherwise unavailable, the courts are liberal in allowing proof of...

Excerpt: ...rsons' right to privacy. “[A]lthough in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient and psychotherapist-patient privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a plaintiff's...

Excerpt: ...ety with ten days leave to amend on this basis. (CCP § 430.10(g).) Statute of Limitations Defendants contend that every cause of action in the FAC is barred by the statute of limitations. “A demurrer on the ground of the bar of the statute 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...

Excerpt: ...summary declaration of Plaintiff that he “incurred a total of $12,357.00 for legal fees and costs.” Local Rule 3.214 provides the schedule for the computation of attorneys' fees in a default judgment. Pursuant to this schedule, Plaintiff's attorney's fee award would be $2,670.00. Plaintiff failed to provide an itemized statement of the services rendered which would support a higher award. (Local Rule 3.214(d) (“An application for a fee grea...

Excerpt: ...s not completed the arbitration process, is no longer communicating with Defendant's counsel, and is unreachable by telephone or mail. (Christianson Decl. ¶¶ 10-13.) It appears Plaintiff has abandoned his case. “The court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410–583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled wit...

Excerpt: ...ate provisions of subdivision (b) or (c) shall be applicable if the complaint for injunctive relief is amended to request damages.” Thus, Plaintiff was not required to seek leave of court to file the amended pleading and the motion is GRANTED. Plaintiff is ordered to separately file the first amended complaint by the end of today, May 16, 2018. Defendant filed a “qualified” non-opposition, seeking a trial continuance of 90 days “to determ...

Excerpt: ...t General Motors, LLC's Motion to Strike Punitive Damages from Plaintiff's First Amended Complaint [CCP §§ 435, 436] is GRANTED without leave to amend. Motion to Strike Improper Second Amended Complaint Plaintiff filed a Second Amended Complaint on March 26, 2018 without leave of court. Plaintiff's interpretation of CCP § 472 in Opposition and her citation to the Rutter Guide, which expressly states “there is no known reported decision permi...

Excerpt: ... establish that Corriente California is an unincorporated association under California law. “The criteria applied to determine whether an entity is an unincorporated association are no more complicated than (1) a group whose members share a common purpose, and (2) who function under a common name under circumstances where fairness requires the group be recognized as a legal entity.” (Barr v. United Methodist Church (1979) 90 Cal.App.3d 259, 2...

Excerpt: ...pposition that the demurrer, which addresses the second cause of action brought by Findings New York only, fails to dispose of an entire cause of action because it does not address the second cause of action as to Cross-Complainant Findings, Inc. This contention lacks merit. “A cause of action is simply the obligation sought to be enforced.” (Abatti v. Eldridge (1980) 103 Cal.App.3d 484, 488.) Both Cross-Complainants assert the second cause o...

Excerpt: ... proceedings defects of a complaint are properly cured by amendments thereto, not by extraneous factual recitals in ‘response' to the demurrers.”). Defendant demurs to the first cause of action for quiet title only. Defendant contends that the Complaint fails to include necessary parties because it does not name Plaintiff's son's representative or estate. Pursuant to CCP § 762.010, “[t]he plaintiff shall name as defendants in the action th...

Excerpt: ...ismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (C...

Excerpt: ...omas only. Defendants have ten days to answer the Complaint. Defendants demur to all causes of action asserted in the Complaint except for the seventh cause of action for wrongful termination. Defendant Precision does not demur to the fifth cause of action for retaliation. Individual Liability of Defendant Thomas for Discrimination and Retaliation Defendants correctly argue that Defendant Thomas, an alleged supervisor for Defendant Precision (Com...

Excerpt: ...s chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.“ (§ 1286.) The court may not correct an award unless, among others, a petition or response requesting that the award be corrected or vacated was filed.” (Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) On April 25, 2018, Defendants K-Kars, Inc. and California Republic Bank filed thei...

Excerpt: ...ng permission to introduce oral evidence, except for oral evidence in rebuttal to oral evidence presented by the other party, must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. When the statement is filed less than five court days before the hearing, the filing party must serve a copy on the other ...

Excerpt: .... In this hard‐ fought action, the likelihood that plaintiff received the motion and chose not to oppose it is slim. This suggests that the motion was not served on opposing counsel. The time for filing a proper proof of service has expired. (CRC 3.1300(c) (“Proof of service of the moving papers <011e0128017d018c011e00 011e0003010201890189Lointed for the hearing.”).) Therefore, the motion is ordered OFF CALENDAR for lack of proper service. ...

Excerpt: ... pursuant to a subpoena duces tecum which seeks cellphone tower records for specified dates, billing statements reflecting all incoming and outgoing calls for specified dates, and billing statements reflecting all incoming and outgoing telephone calls or text messages for specified dates. The subpoena seeks records for two telephone numbers. (Castronovo Decl. Ex. K.) After consideration of the supplemental briefing submitted by the parties, the c...

Excerpt: ...oodland (2007) 152 Cal.App.4th 1106, 1117 (“For example, the First Substitution recites that Shanley “is the present holder of beneficial interest under said Deed of Trust.” By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot be considered not reasonably subject to dispute.”).) The court may also take judicial notice of the legal effect of such docu...

Excerpt: ...Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423 (“Under the doctrine of respondeat superior, the vicarious liability of an employer or principal is not based on fault. The liability is imposed as a rule of policy, “a deliberate allocation of a risk,” regardless of the employer's control or fault. The employer's liability is wholly derived from the liability of the employee. The employer cannot be held ...

Excerpt: ...filing fee. Plaintiff served a deposition subpoena on Defendant on June 9, 2017 and again on February 12, <0044004f004f0003005600 00030056005300480046>ific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (CCP § 2025.450(b)(1).) The motion indicates that the documents are required to determine what documents Elliot has th...

Excerpt: ...ling non‐party 1330 Pico Associates to comply with a business records deposition subpoena. Defendants also seek an OSC Re: Contempt. Both of these requests require personal service of the motion papers or charging affidavit. (Cedars‐ Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1286–87 (Unless the citee has concealed himself from the court, he must be personally served with the affidavit and <0003016f01020110016...

Excerpt: ...rrogatories, Set Two and Request for Production of Document, Set Two, within 20 days. Defendant seeks sanctions against Plaintiff individually, but not Plaintiff's counsel, in the amount of $1,295.00 for each motion consisting of three hours of attorney time for each motion, an anticipated 0.5 hours reviewing each opposition, an anticipated 1.5 hours for each reply, an anticipated 0.5 hours preparing for the hearing, and an anticipated 3 hours to...

Excerpt: ...atter, Defendants failed to submit a memorandum in support of their motion. Defendants filed a notice of motion and two declarations in violation of CRC Rule 3.1112(a): “the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion or demurrer.” “In the absence of a voluntary submission to the authority of the court,...