Excerpt: ...e why sanctions should not be imposed for failure to file proof of service of summons and the complaint. On April 9, 2018, the Court issued a minute order delaying the hearing on the OSC to May 16, 2018. On March 16, 2018, default was entered against defendant Genesis Media. Plaintiff now seeks default judgment against Genesis Media. Procedural Requirements: On March 16, 2018, default was entered against Genesis Media. The Request for Entry of De...

Excerpt: ... in the interactive process, (6) failure to pay all hours worked, (7) failure to pay overtime, (8) meal period violations, (9) rest period violations, (10) waiting time penalties, and (11) wrongful termination and retaliation in violation of public policy. On April 11, 2018, defendant Baron Adelmann (hereinafter defendant) filed this opposed demurrer to the sixth through tenth causes of action for insufficient facts. (The Court notes that the not...

Excerpt: ... dealing. On November 3, 2017, defendants removed this action to the United States District Court for the Central District of California. (However, on December 19, 2017, upon stipulation by the parties, the United States District Court remanded this action back to the Court.) On November 13, 2017, defendants collectively filed a single, unverified answer, then on February 9, 2018, each defendant separately filed a first amended verified answer. O...

Excerpt: ...d her employment when she was on medical leave to recover from the incident. On August 21, 2017, plaintiff filed a complaint asserting 11 causes of action. On April 16, 2018, plaintiff filed this opposed motion to quash a subpoena served her former therapist. Neither side seeks sanctions. Motion to Quash Standard: When a subpoena requires the attendance of a witness or the production of books, documents or other things before a court, or at the t...

Excerpt: ... of express written warranty, (5) breach of the implied warranty of merchantability, and (6) fraud by omission. On April 6, 2018, defendant Ford Motor Company (hereinafter defendant) filed this opposed demurrer for insufficient facts and motion to strike punitive damages. The Court considered the moving, opposition, and reply papers and rules as follows. Failure to Meet and Confer: “Before filing a demurrer pursuant to this chapter, the demurri...

Excerpt: ...dgment. Authority to Set Aside Default Under Code of Civil Procedure Section 473(b) and (d) “… [T]he law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].'” Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980. A court's decision to grant relief under section 473 is “to be exercised in conformity with the spirit of the law and in a ma...

Excerpt: ...), (c), (e). The proofs of service indicate that counsel served all the documents on both the clients and plaintiff via its counsel. Counsel confirmed Gateway's last known address within the past 30 days by conversation. Therefore, service was proper. CRC, rule 3.1362(d). Regarding the merits, the “determination of whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court,” and that in making...

Excerpt: ...tion to be relieved as counsel. On the same date counsel also filed a notice of change of address. Analysis: The motion does not satisfy the procedural requirements. The notice of motion and motion, declaration, and proposed order is on the appropriate Judicial Council forms and addressed to the clients. CRC, rule 3.1362(a), (c), (e). Counsel's declaration states that counsel served the clients by mail at their last known address and confirmed th...

Excerpt: ...¶ 7. Plaintiff received an express written warranty in which defendant promised to preserve or maintain the utility or performance of the vehicle within the warranty period. Complaint ¶ 7. The vehicle was delivered to plaintiff with serious defects. Complaint ¶ 8. Defendant and its representatives failed to repair the vehicle after a reasonable number of attempts, and then failed to promptly replace the vehicle or make restitution as required ...

Excerpt: ... petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name …. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.” CCP § 128.7(a). Defendants' notice of motion is unsigned. Defendants are ORDERED to correct this defect by filing a notice of errata within fiv...

Excerpt: ..., plaintiff filed a complaint for (1) negligence, (2) negligence, (3) negligent maintenance of premises, (4) violations of Los Angeles Rent Stabilization Ordinance, (5) breach of implied warranty of habitably, (6) breach of contract, (7) breach of covenant of good faith and fair dealing, (8) nuisance, (9) unlawful actions by landlord to influence tenants to vacate, (10) wrongful eviction, and (11) unfair competition. On March 12, 2018, Advantageo...

Excerpt: ...ed a complaint against Defendant PCIC under Insurance Code § 11580 to collect on the judgment, case no. BC619295. On October 13, 2017, Plaintiff dismissed the case without prejudice. On September 9, 2017, Plaintiff acquired Cowo's rights under Cowo and PCIC's insurance contract. Plaintiff then moved to set aside the dismissal on the grounds that Plaintiff's attorney had mistakenly believed that the causes of action for breach of contract, etc. a...

Excerpt: ...endants illegally operated or allowed to be operated an illegal medical marijuana facility. On September 22, 2018, plaintiff filed a complaint asserting four causes of action for unlawful business practices. On April 11, 2018, defendants filed this opposed demurrer for insufficient facts. Defendants' counsel should note that a demurrer is a standalone procedure and is not a “motion for demurrer.” Meet and Confer Requirement: “Before filing ...

Excerpt: ...mber 4, 2016, plaintiff filed a complaint for (1) negligence, (2) negligence, (3) negligent maintenance of premises, (4) violations of Los Angeles Rent Stabilization Ordinance, (5) breach of implied warranty of habitably, (6) breach of contract, (7) breach of covenant of good faith and fair dealing, (8) nuisance, (9) unlawful actions by landlord to influence tenants to vacate, (10) wrongful eviction, and (11) unfair competition. On March 12, 2018...

Excerpt: ...equests, and motion to continue trial. Insufficient Filing Fees: Defendant improperly combined these two motions. One motion addresses form interrogatories, the other, special interrogatories. Defendant filed these two motions as one. The Court intends to order defendant to pay an additional $60 filing fee. The Court intends to admonish defendant for reserving only one hearing. Motion to Compel Response to RFPs and Interrogatories Standard A tria...

Excerpt: ...on, wrongful termination, and related claims. On April 10, 2018, defendant filed this opposed motion to compel arbitration. Untimely Opposition: Even if the opposition papers were untimely, as defendant argues in reply, by responding on the merits, it waived this objection. See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. Evidentiary Objections: The Court's rulings on defendant's evidentiary...

Excerpt: ... asserting 11 causes of action including sex discrimination, sexual harassment, retaliation, and wrongful termination. On March 2, 2018, Dave & Buster's filed this unopposed motion to compel arbitration. The Court considered the moving papers and rules as follows. Motion to Compel Arbitration Standard: When a motion to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the cour...

Excerpt: ...nflator, plaintiff then presented the vehicle for repairs but defendants Defendants Ford Motor Company and Geweke Co., dba Larry Geweke Ford, were unable to repair the nonconformity and refused plaintiff's request for a repurchase or replacement. On September 9, 2016, plaintiff filed a complaint and on December 6, 2016, the operative first amended complaint (mooting defendants' then pending demurrer to the initial complaint) for (1) breach of imp...

Excerpt: ...d and refused plaintiffs' demands for dissolution and an accounting, and have made decisions without notifying plaintiffs. Plaintiffs alleges that the Buchanan Trust owns a 50 percent interest in Wier LLC. On March 17, 2017, plaintiff filed a complaint in Ventura County for (1) breach of contract, (2) dissolution, (3) accounting, (4) breach of fiduciary duty, and (5) bad faith. The complaint was filed in this Court on November 13, 2017. On Februa...

Excerpt: ...onsible for Bradford's outstanding $366,832.18 medical bill and rejected Prime's creditor's claim in the probate proceeding to administer Bradford's estate. On November 20, 2017, Prime filed a complaint for (1) breach of contract, (2) common count for services rendered, (3) account stated, and (4) open book account. Finney and Gordon, as Bradford's representative, cross‐sue Prime for damages, personal property recovery, an order rescinding the ...

Excerpt: ...or failure to submit payments. Untimely Opposition: Even if the opposition papers were untimely, as Martingale argues in its supplemental reply, by responding on the merits, it waived this objection. See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. Improper Opposition: Jamali's counsel should note that a memorandum of points and authorities should include “a statement of facts, a concise s...

Excerpt: ...17, plaintiffs filed a complaint asserting 22 causes of action. On July 25, 2016, the clerk denied plaintiffs' fee waiver requests and gave notice by mail on July 26, 2016. Plaintiff then had 10 days (plus five days for mail service) to pay the fee, by August 10, 2016. Govt. Code § 68634(e), (g). On August 19, 2016, the clerk gave notice of voiding plaintiffs' complaint for failure to pay the initial filing fee. On August 26, 2016, plaintiffs fi...

Excerpt: ...specific performance, an accounting, an injunction, and other relief arising from allegations of fraudulently luring plaintiff into investing in defendants' business, violating an investment agreement, and mismanaging her immigration visa application. On December 8, 2017, she filed a complaint for (1) fraud – intentional misrepresentation, (2) fraud – negligent misrepresentation, (3) fraud – concealment, (4) fraud – promise without intent...

Excerpt: ...s president, she “inherited” certain internally contentious, divisive issues. One was a desire to split the organization into northern and southern geographic regions, which she supported. The other involved office space the organization rented to a third party, about which plaintiff engaged counsel. Plaintiff raised her concerns with Western and California Dental Association, and recommended forming a nonprofit foundation and address certain...

Excerpt: ... Wanda Management. On October 16, 2015, Tong filed a first amended complaint, adding fraud claims. On February 14, 2017, the Court entered a judgment in Tong's favor following a jury trial, and subsequently awarded Tong costs and attorneys' fees. On July 20, 2017, Tong commenced this action, suing David Cheung, Mei Quin Li, and Ling Yau, individually and as trustee, for 10 counts of fraudulent transfer, conspiracy, and aiding and abetting. Concur...

Excerpt: ...er. Zarcal worked as Heller and her late husband's live‐in caretaker. On June 16, 2017, plaintiff filed a complaint asserting 11 causes of action, including Labor Code violations, defamation, wrongful termination, and related claims. On September 5, 2017, defendants filed a cross‐complaint and on September 11, 2017, the operative first amended cross‐complaint against plaintiff for (1) elder abuse, (2) financial elder abuse, (3) breach of fi...

Excerpt: ...nment, LLC, David Zucker, and Randall Sherman for damages, an injunction, and other relief arising from allegations that Sherman and Zucker made sexist remarks, treated plaintiffs differently from male employees, and terminated plaintiffs' employment under the pretext of a layoff for complaining about discrimination and harassment. On December 14, 2017, plaintiffs filed a complaint for (1) sexual harassment, (2) sex discrimination, (3) retaliatio...

Excerpt: ...jecting sexual harassment. On August 2, 2017, plaintiff filed a complaint for (1) sexual harassment, (2) failure to prevent harassment, (3) retaliation, (4) failure to prevent retaliation, (5) sexual battery, and (6) wrongful termination in violation of public policy. On March 6, 2018, plaintiff filed this opposed combined motion to compel production of five Code of Civil Procedure section 1987 demands. Neither side seeks sanctions. The Court con...

Excerpt: ...inistrator and successor trustee) for damages based on allegations that she failed to pay legitimate legal bills. On June 8, 2017, Whittaker filed a complaint for (1) professional negligence and (2) breach of fiduciary duty. On August 21, 2018, the Court sustained Glaser's demurrer to the second cause of action without leave and granted its motion to strike the prayer for attorneys' fees without leave except without prejudice to move for leave to...

Excerpt: ...ghts to receive Synder's disputed share of rends, and instruct the tenant to pay Snyder his disputed share of rent directly. Snyder also seeks a writ of possession of rents already paid. Untimely Opposition: Even if the opposition papers were untimely, as Snyder argues in reply, by responding on the merits, he waived this objection. See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697. Motion for...

Excerpt: ...n, (2) failure to prevent discrimination, (3) failure to make reasonable accommodation, (4) retaliation, (5) failure to engage in the interactive process, and (6) wrongful termination in violation of public policy. On February 9, 2018, plaintiff filed this opposed motion to quash defendant's deposition subpoena on Kaiser Permanente and sanctions request. Motion to Quash Standard: When a subpoena requires the attendance of a witness or the product...

Excerpt: ...2017, plaintiff filed a complaint asserting a sole cause of action for unlawful business practices under Business and Professions Code section 17200. On October 2, 2017, default was entered against defendants. On February 8 and 9, 2018, plaintiff filed this unopposed motion for leave to file a first amended complaint to add a cause of action for retaliation. (The two filings appear to be identical.) Procedural Requirements: A motion to amend a pl...

Excerpt: ...) negligent misrepresentation, (3) fraudulent misrepresentation, (4) fraudulent concealment, (5) breach of contract, (6) breach of covenant of good faith and fair dealing, (7) breach of fiduciary duties, (8) fraud, (9) constructive fraud, (10) libel, (11) libel per se, and (12) slander and defamation. On February 15, 2018, plaintiff filed these opposed motions against State Farm to compel an initial response to form interrogatories and deem RFAs ...

Excerpt: ...ly for plaintiff, by selling furniture to plaintiff's competitor New Spec. On December 20, 2016, plaintiff filed a complaint, May 22, 2017, a first amended complaint, and on September 25, 2017, a second amended complaint, and on January 29, 2018, the operative third amended complaint for (1) breach of contract, (2) breach of contract, (3) intentional misrepresentation, (4) fraudulent concealment, (5) intentional interference with prospective econ...

Excerpt: ...hey failed to pay rent and committing waste. On February 22, 2017, HTL filed a complaint for (1) breach of written contract and (2) breach of the implied covenant of good faith and fair dealing. On April 10, 2017, Orizaba filed a cross‐complaint for (1) breach of contract and (2) waste. The same day, Orizaba filed an answer to the complaint. On May 12, 2017, HTL filed an answer to the cross‐complaint. On July 20, 2017, default was entered aga...

Excerpt: ...ary duty, and (7) professional negligence. On March 9, 2018, plaintiff dismissed Re/Max with prejudice. On March 15, 2018, defendants DAR and Franco's counsel, Robert J. Nastase, filed these two unopposed “corrected” motions to be relieved as counsel. (Counsel filed the originals on March 6 and 7, 2018.) The Court considered the moving papers and rules as follows. Analysis: The motions do not satisfy the procedural requirements. The notices o...

Excerpt: ... the operative second amended complaint asserting eight causes of action for wage and hour law violations and a cause of action for unfair business practices. Plaintiff asserts only the fourth cause of action against Ronen. On February 22, 2018, Ronen filed this opposed demurrer to the fourth cause of action for insufficient facts. Ronen's counsel filed a compliant meet and confer declaration. CCP § 430.41; Stern Decl. (Counsel should note that,...

Excerpt: ...PS, its owner and/or CEO C. Don Feak, III, and their counsel, Wen Winny Yang, for declaratory relief and damages based on allegations that PS breached its contractual obligations, and that they disrupted defendants' production and other aspects of their business. Plaintiff / Cross‐Defendant's Allegations: Plaintiff alleges that it designed and obtained FDA clearances for two medical devices. In summer 2015, Glassmand, Llevat, and Carmi (Thibian...

Excerpt: ... On September 29, 2017, plaintiff filed a complaint for (1) breach of contract, (2) open book account, (3) account stated, (4) conversion, and (5) claim and delivery. Plaintiff seeks default judgment in the principal amount of $193,151.22 plus costs and fees for a total of $202,030.22. Procedural Requirements: On December 19, 2017, default was entered against defendant. No pending motion to vacate default appears in the record. The default judgme...

Excerpt: ...ayer for punitive damages. Defendants' counsel submitted a compliant meet and confer declaration. CCP § 430.41; Och Decl. ¶¶ 3‐6. These defendants represented a defendant in the underlying personal injury action. Oversized Memorandum: Shtofman's demurrer opposition memorandum is 16 pages; Shtofman did not seek or obtain permission to file an oversized memorandum, therefore the excessive page is disregarded. CRC, rule 3.1113. Table of Content...

Excerpt: ...a Las Vegas hotel and casino. On November 1, 2017, plaintiffs filed a complaint asserting 10 causes of action. On December 21, 2017, defendants filed this opposed motion to compel arbitration. (The motion is styled as a petition, but this action was commenced by complaint, so it is actually a motion.) The Court considered the moving, opposition, and reply papers, and rules as follows. Evidentiary Objections: Defendants object to the entirety of e...

Excerpt: ...ed on allegations that plaintiff properly foreclosed on it and that defendants improperly recorded certain documents against it. On June 13, 2017, plaintiff filed a complaint for (1) cancellation, (2) quiet title, and (3) injunction. On September 11, 2017, Burns filed a notice of removal to federal court. On November 1, 2017, plaintiff filed a notice of remand. On August 2, 2017, Burns filed this opposed demurrer, apparently for insufficient fact...

Excerpt: ... to Tab Exhibits: Defendants' 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 pa...

Excerpt: ... filed a complaint. On November 30, 2017, H Mart filed a cross‐complaint. H Mart cross‐sues its supplier, cross‐defendant Koco Trading, Inc., for indemnity and related claims. On January 11, 2018, the Koco filed this opposed purported single motion to compel further responses to three sets of written discovery demands from CAG. Both sides request sanctions. Failure to Tab Exhibits: Koco's counsel should note: “Each paper exhibit must be s...

Excerpt: ...iff filed a complaint asserting 11 causes of action. On January 12, 2018, the Schwanitzes filed this opposed purported single motion to compel further responses to three sets of written discovery demands. Analysis: Here, defendants seek further responses to form interrogatories (the notice of motion specifies only No. 7.3, but the separate statement addresses Nos. 7.1 and 7.3), their first set of special interrogatories, and their second set of s...

Excerpt: ...ant for LBMMC. SAC ¶ 6. She had a serious back injury, Graves Disease, hypothyroidism, and joint and back pain, and was 60 years old. SAC ¶¶ 7‐8, 45. In March 2016, plaintiff was placed on periodic one or two days' medical leave. SAC ¶ 46. Plaintiff's physician imposed restrictions of no stating for more than 15 minutes and no repetitive hand use, which “were given to [LBMMC] in writing in mid‐2016 and continued in force ….” SAC ¶�...

Excerpt: ...d costs and fees for a total of $48,300.58. It seems that plaintiff also sues “all occupants in possession.” See 11/20/17 Request for Entry of Default. The complaint, however, does not actually name “all occupants in possession” as a defendant. Plaintiff's counsel should be prepared to explain. Procedural Requirements: On November 22, 2017, default was entered against defendant. No pending motion to vacate default appears in the record. T...

Excerpt: ...t Filing Fees: Defendant improperly combined these two motions. One motion addresses Alvez's responses; the other, Souza's responses. Defendant filed two separate statements. The Court intends to order defendant to pay an additional $60 filing fee. Analysis: There is no dispute that the motions are procedurally proper. FORM INTEROGATORIES Defendant seeks further responses to Nos. 1 through 8, 10, and 12 through 16. There is no dispute that plaint...

Excerpt: ...ing about same. On October 3, 2017, plaintiff filed a complaint for (1) failure to pay wages due, (2) breach of contract, (3) breach of implied covenant of good faith and fair dealing, (4) waiting time penalties, (5) violation of Labor Code section 98.6, (6) violation of Labor Code section 1102.5, (7) wrongful termination in violation of public policy and (8) violation of Business and Professions Code section 17200. On January 5, 2018, defendant ...

Excerpt: ...an servicer after several assignments and failure to give notice of default. Plaintiff alleges that his second mortgage was reassigned so many times and so rapidly that he was confused about the identity of the mortgage holder. On or about September 8, 2017, 2nd Chance purchased the property at a foreclosure auction. On November 13, 2017, plaintiff filed a complaint for (1) negligence, (2) negligent infliction of emotional distress, (3) breach of...