Excerpt: ... Centers, Inc., Derek Carmona, D.C., and Husam Fraihat did not file any opposition. Rather, they filed an “Application to Transfer Motion for Anti-SLAPP Fees to Judicial Officer Kwan” pursuant to Local Rule 2.23. This local rule is inapplicable, because it pertains to applications to reconsider, vacate, or modify orders or judgments when the original judge is unavailable. Cross-defendants do not seek to reconsider, vacate, or modify any order...

Excerpt: ...DEMURRER TO FIRST AMENDED CROSS‐COMPLAINT As a preliminary matter, the Court notes that the cause of action for Fraud is the seventh cause of action. Although the first page of the First Amended Cross-Complaint (“FAXC”) states that Fraud is the eighth cause of action, that is misnumbered because there is no Declaratory Relief cause of action as to Stephanie Mayor (labeled on the first page as the fourth cause of action) contained in the bod...

Excerpt: ...s must be sent to the wrongdoer causing the accident and to any insurer of whom the hospital has knowledge. (County of San Bernardino v. Calderon (2007) 148 Cal.App.4th 1103, 1109.) A lien is created once notice is served, as opposed to when the services are rendered. (Ibid.) Here, defendant allegedly provided notice of its lien pursuant to Civil Code § 3045.3 on December 9, 2019. (FAC ¶ 12.) Under CCP § 3045.3, defendant's lien was created on...

Excerpt: ...ion to strike. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” (Vargas v. City of Salinas (2009) 46 Cal. 4th 1, 16 [citations omitted].) “If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.) The plaintiff demonstrates a probability...

Excerpt: ... 1, 38.) In a demurrer, the court considers only the four corners of the complaint, as well as matters that may be judicially noticed, and assumes the truth of the allegations in the pleading. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, defendants contend that, due to the so-called “Exoneration Order” (i.e., the February 11, 2015 Order in Rickley v. Goodfriend, case no. SC081696), they cannot be liable under the sixth cause of action f...

Excerpt: ...UMF 1‐11) A book account is “a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract . . . and shows the debits and credits in connection therewith, and against whom and in favor of whom entries are made, is entered in the regular course of business as conducted by such creditor . . . and is kept in a reasonably permanent form and manner . . . .” (CCP ...

Excerpt: ...TED pursuant to Evidence Code §§452(g) and (h), but only for the limited purposes set forth in Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265. (Fontenot, 198 Cal.App.4th at 265 [“Taken together, the decisions discussed above establish that a court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document...

Excerpt: ...igence is barred as a matter of law pursuant to the express waiver and release of liability in Plaintiff's Membership Agreement and Personal Training Agreement. It is undisputed that plaintiff Becky Bayer signed a Membership Agreement and Personal Training Agreement containing waivers of liability for ordinary negligence on the part of defendant Fitness International, LLC, its agents, and employees and that these documents were in effect on the d...

Excerpt: ...ntiff Karen Garcia did not provide defendant a reasonable number of attempts to repair the subject vehicle. (See Silvio v. Ford Motor Co. (2003) 109 Cal.App.4th 1205, 1208 [Song-Beverly Consumer Warranty Act “does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle”].) In the Complaint, plaintiff alleges that the nonconformities covered by the express written warranty...

Excerpt: ...RRER TO COMPLAINT A. First Cause of Action – Breach of Contract Defendant Jonathan Lau maintains that the terms of the contracts are uncertain because no contracts were attached to the Complaint because the pertinent terms were not set forth verbatim. Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the...

Excerpt: ...to file a declaration supporting its assertion that the documents requested in Demand for Production, Set One, Nos. 2 and 3 – documents concerning the credentialing and granting of staff privileges to Dr. Reza Khodaverdian – are protected by Evidence Code § 1157(a). Hospital filed a declaration from Rachel Van Houten, Director for Medical Staff Services at Hospital. Van Houten avers that she is familiar with the credentialing process at Hosp...

Excerpt: ...cial notice are DENIED as to the first and second requests. Defendants do not specify the portions of the “entire court file” or “all fillings by Defendant Kosner starting on or after June 8, 2016” in “Family law case file GD052841” for which they seek judicial notice, as required by Cal. Rule of Court 3.1306(c). As to the third request, defendants' request for judicial notice of the Business Search - Entity Detail for The Kosner Firm...

Excerpt: ... DEMURRER Defendant James T. Lin, M.D. demurs to the third cause of action for Elder Abuse. To state a cause of action for Elder Abuse based on neglect, plaintiff must plead: (1) defendants had a substantial custodial relationship with the patient, involving ongoing responsibility for basic needs; (2) the patient was 65 years of age or older; (3) defendants failed to use the degree of care that a reasonable person in the same situation would have...

Excerpt: ...LLC's Motion to Strike Memorandum of Costs, or, in the Alternative, to Tax Costs is GRANTED IN PART. Defendants/cross-complainants Bradley Barnes and BABBB, LLC's Motion to Strike Memorandum of Costs, or, in the Alternative, to Tax Costs is GRANTED. I. WVBAGD, LLC'S MOTION FOR ATTORNEYS' FEES WVBAGD, LLC's request for judicial notice as to Exhibits 1, 2, 3, 7, 9, 10, and 12 and supplemental request for judicial notice as to Exhibits 1-3 are GRANT...

Excerpt: ... 583.310) Defendants bring this motion to dismiss this action on the ground that more than five years have elapsed since the commencement of this action. Plaintiff commenced this action on April 14, 2010. Without any exclusions of time, the time to bring this action to trial would be April 14, 2015. (CCP § 583.310.) However, due to Emergency Rule 10 of the California Rules of Court, that date was extended by six months to October 14, 2015. (Cal....

Excerpt: ...3, 36-38, 41, 42, and 52. The Court notes that these interrogatories were the subject of plaintiff Mona Seraji's Motion for Protective Order heard on February 26, 2021. (Moghaddami Decl. ¶ 8 & Ex. D.) The Court granted the motion as to the first set of Special Interrogatories. The Court ruled that plaintiff was not required to respond to the Special Interrogatories until defendant “limits, modifies, and reduces” them. (Moghaddami Decl. ¶ 8 ...

Excerpt: ...uest for judicial notice as to Exhibit 1 is GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code §452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Plaintiff's request for judicial notice as to Exhibit C is GRANTED, pursuant to Evidence Code § 452(d). II. FIRST CAUSE OF ACTION – DUTY TO DEFEND (UMF 1‐45) To prevail in a declaratory relief action regarding the duty ...

Excerpt: ...contend that plaintiff Long Z. Liu failed to plead sufficient facts for alter ego liability against Anthony Wong, the alleged agent of Concord Realty, Inc. (“Concord”), and Mi Nor Chan Ley, the manager of WLW, LLC (“WLW”). (Compl. ¶¶ 8-10.) With respect to defendant Wong, plaintiff effectively alleges that Wong misrepresented verbally and in writing that WLW would install a restroom in the subject premises and that there was no issue in...

Excerpt: ...rt considers plaintiff Robert Avellanet's opposition. (Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602, 613 [“The circumstances surrounding an untimely opposition to a petition or motion to compel arbitration should be viewed under ‘the strong policy of the law favoring the disposition of cases on the merits . . . .'”].) The opposition was served and filed nine court days before the hearing. Defendant FCA US, LLC (“FCA”) ha...

Excerpt: ...on. In the notice of motion, defendant cites two statutes upon which this motion is brought, CCP §§ 473(a) and 663. (Motion at 2:1.) CCP § 473(a) does not apply because defendant is not seeking to amend a pleading or file an answer. CCP § 663 does not apply because defendant is not seeking entry of a different judgment. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207, fn. 5 [“Because the relief appellant sought would not involve the entr...

Excerpt: ...V ENTERPRISES.” (Sarkisyan Decl. ¶ 3 & Ex. A.) In a verified response numbered as “17” and dated November 17, 2020, plaintiff wrote “Admit.” (Sarkisyan Decl. ¶ 4 & Ex. B.) CCP § 2033.300(b) states: “The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially...

Excerpt: ...ach paper must specify the date, time, and location of any scheduled hearing and the name of the hearing judge, the date of filing of the action, and the trial date. Plaintiff Rafik Yakobiyans contends that the motion was inadequately noticed. The only item missing on the first page is the time of the hearing. However, as evidenced by the first page of plaintiff's opposition, plaintiff was able to ascertain that the hearing is at 10:00 a.m. on Ap...

Excerpt: ... A, B, C, E, and G and petitioners' request for judicial notice as to Exhibits A, C, D, and E are GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Respondents' request for judicial notice as to Exhibits D and F and petitioners' request for judicial notice as to Exhibit B are GRANTED, pursuant to Evidence Code § 45...

Excerpt: ...52(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Defendant Kalantar's requests for judicial notice as to Exhibits E through G and second request for judicial notice as to Exhibit A are GRANTED, pursuant to Evidence Code § 452(d). Res judicata bars the litigation of this action against Dr. Kalantar in this action. “Claim preclusion applies when ‘(1) the decision in the prior proceeding is final and on the merits; (2) the present ...

Excerpt: ...he defendant, (2) the plaintiff's performance, (3) the defendant's unjustified failure to perform, and (4) damages to the plaintiff caused by the defendant's breach. (See CACI No. 303.) Generally, if the action is based on a purported breach of a written contract, the contract must either be attached to a complaint or set forth verbatim in the body of the complaint. Otworth v. Southern Pac. Transportation (1985) 166 Cal.App.3d 452, 459.) As a pre...

Excerpt: ... whether the opposition papers were timely served, defendant was able to file a substantive reply to the opposition. Accordingly, the Court considers the opposition papers. While defendant seeks summary adjudication alternatively in the notice of motion and sets forth the five issues sought to be adjudicated, defendant does not set forth the issues in the separate statement. “The Separate Statement of Undisputed Material Facts in support of a m...

Excerpt: ... action asserted against T&T, is time-barred under the statute of limitations set forth in CCP §§ 337.1 and 338. The Court finds that, as a matter of pleading, the four-year statute of limitations for patent deficiencies set forth in CCP § 337.1 does not foreclose plaintiff's claim. “The test used to determine whether a deficiency is patent is objective,” but “[w]hether a defect is apparent by reasonable inspection is a question of fact....

Excerpt: ...a Adventist Health Glendale is CONTINUED. Plaintiff Jason Yanuzzi's Motions to Compel Further Responses to Demand for Production, Set One from defendant Reza Khodaverdian, M.D. is DENIED as MOOT. Plaintiff Jason Yanuzzi's Motions to Compel Further Responses to Special Interrogatories, Set Two from defendant Reza Khodaverdian, M.D. is GRANTED. I. PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DEMAND FOR PRODUCTION, SET ONE FROM DEFENDANT GLENDA...

Excerpt: ...ach party, as required under Cal. Rule of Court 3.1306(c). Specially appearing non-party Thetford Corporation (“Thetford”) seeks to quash service of the summons and Complaint. As a preliminary matter, the Court notes Thetford's contention in the reply that it was not served the opposition. (Cimmarusti Reply Decl. ¶ 4 & Ex. 2.) The proof of service attached to the opposition does not state Thetford as one of the entities that were served the ...

Excerpt: ...he Declaration of Covenants, Conditions, and Restrictions (“CC&Rs”) limit the liability of board members. Plaintiff Anthony Nguyen alleges that defendant is the sole board member of nominal defendant Hillside Estates Homeowners' Association (“Hillside”). (FAC ¶ 12.) Article XVII, Section 14 of the CC&Rs invokes the business judgment rule. (FAC at Ex. A, p. 57.) “The business judgment rule sets up a presumption that directors' decisions...

Excerpt: ... MOOT. I. DEMURRER TO SECOND AMENDED COMPLAINT A. Defendant Michael Smushkevich's “Joinder” As a preliminary matter, on March 25, 2021, co-defendant Michael Smushkevich filed a joinder to defendants Northridge Caregivers Co-Op, Inc. (“NCCI”) and Larissa Li's demurrer to the Second Amended Complaint (“SAC”). The joinder asserts new arguments regarding why the SAC is defective. Because of the new arguments, the joinder is essentially a ...

Excerpt: ...racts. Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.) Here, as alleged with respect to the Long Beach Project, the co...

Excerpt: ... § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Defendant Matthews' requests for judicial note as to Exhibits 3 and 7 are GRANTED, pursuant to Evidence Code § 452(d). Defendant Matthews seeks to set aside the default judgment entered on October 2, 2014 on the ground that plaintiff did not demonstrate reasonable diligence in attempting to personally serve Matthews before filing an application for publication under CCP § 415.50...

Excerpt: ...ursuant to Evidence Code § 452(d). As to the other requests for judicial notice, they are GRANTED, but only for the existence of the documents and not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Tenants move for an award of $55,245 in attorney fees. In opposition, plaintiff and cross-defendant David Zach (“Landlord”) contends that Tenants' motion is an unauthori...

Excerpt: ...neral, Set One, and Special Interrogatories, Set One from Plaintiff Aussie Mex, S.A. de C.V. is GRANTED. Defendant Joseph Eum's UNOPPOSED Motion to Compel Responses to Requests for Production of Documents, Set One from Plaintiff Aussie Mex, S.A. de C.V. is GRANTED. I. DEFENDANT JOSEPH EUM'S MOTION FOR TERMINATING SANCTIONS AGAINST PLAINTIFF PANOPUS, PLC Defendant Joseph Eum moves for terminating sanctions against plaintiff Panopus, PLC (“Panopu...

Excerpt: ...ed Cross-Complaint is DENIED. A. CROSS‐DEFENDANTS' DEMURRER TO FIRST AMENDED CROSS‐COMPLAINT 1. First Cause of Action – Breach of Contract Cross-complainant 13003 Ventura Blvd, LLC (“Ventura”) states a breach of contract. Ventura alleges the existence of the AIA Agreement (“Agreement”) between defendant 13003 Ventura LLC and plaintiff Salles Construction, Inc. (FAXC ¶¶ 18, 55 & Ex. A); Ventura's performance under Agreement (FAXC �...

Excerpt: ...e Corporation (“Costco”) contends that plaintiff's action against Costco is time-barred. Plaintiff's action is subject to a two-year statute of limitations. (CCP § 335.1.) Plaintiff alleges that he was injured on February 14, 2017. (SAC ¶¶ GN-1, Att. to Prem.L-1.) Accordingly, plaintiff was required to assert claims against Costco no later than February 14, 2019. Plaintiff added Costco to the action on February 13, 2019 (i.e., one day befo...

Excerpt: ...t notes that both of defendant's Reply briefs, filed February 16, 2021, at 9:35 PM, were untimely. (CCP § 1005(b) [reply for noticed motion due five court days before hearing].) As such, the Court, in its discretion, declines to consider them. (Cal. Rules of Court, rule 3.1300(d).) I. DEMURRER TO SECOND AMENDED COMPLAINT Defendant Opus Fund Services (USA) LLC's (“Opus”) demurs to the second cause of action for Negligent Misrepresentation and...

Excerpt: ...nt to Evidence Code § 452(d). (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 525 [judicial notice of arbitration award proper under Evidence Code 452(d)]. The request for judicial notice as to Exhibit 2 is GRANTED, but only for the existence of the documents and not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.) Defendants' evidentiary objections are OVERRULED. On...

Excerpt: ...sponses to Requests for Admission, Set One from Cross-Defendant Min Shang Ko is GRANTED. Defendant/Cross-Complainant Fairview East, LLC's Motion to Compel Further Responses to Form Interrogatories, Set One from Cross-Defendant Min Shang Ko is GRANTED. Defendant/Cross-Complainant Fairview East, LLC's Motion to Compel Further Responses to Form Interrogatories, Set One from Plaintiff KV Electric, Inc. is GRANTED. I. DEFENDANT/CROSS‐COMPLAINANT FAI...

Excerpt: ... sought further responses to Special Interrogatories, Set One, Nos. 14, 24, 37, 38, 43, 45, and 46 and Special Interrogatories, Set Two, Nos. 51, 52, 54, 55, 57, 58, 60, 61, 63, 64, 66, 67, 68, 69, 71, 72, 74, 75, 77, 78, 80, 81, 83, 84, 86, 87, 89, 90, 92, 93, 111, 112, 113, and 114. Plaintiff Nejdik Axian opposes the motion on the ground that defendant did not adequately meet and confer prior to filing the motion. With respect to Special Interr...

Excerpt: ...rt's requests for judicial notice as to the Complaint and Cross-Complaint filed in this action, attached to the declaration of Jeffrey N. Brown as Exhibits 12 and 13, respectively, and the certified copies of the criminal complaints in Los Angeles Superior Court Case Nos. 8PD1811 and 8PD2583, attached to the declaration of Charles Vaillancourt as Exhibit 8, are GRANTED, but only for the existence of the documents, not the truth of the matters ass...

Excerpt: ...aki Defendants”) requests for judicial notice are DENIED as to Exhibits 1 and 2. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604–05 [“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to con...

Excerpt: ... subject to the conditions set forth below. I. MOTION FOR PROTECTIVE ORDER On October 23, 2020, plaintiff Erica Danuelle Escobar served a Request to Enter and Inspect Premises on defendant Costco Wholesale Corporation, where plaintiff requested permission to conduct a “nondestructive inspection of the above-referenced premises, including testing, inspecting, measuring, and/or photographing and videotaping the surface of the SUBJECT PREMISES.”...

Excerpt: ... of Requests for Admission served on plaintiffs Panopus, PLC (“Panopus”) and Aussie Mex, S.A. de C.V. (“Aussie”). (See Evid. Code § 452(h) (facts and propositions not reasonably subject to dispute); Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-05 [“The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only whe...

Excerpt: ...ants' request for judicial notice of plaintiff's Claim for Damages is GRANTED, but for the “filing and contents of the claim, not for the truth of the contents therein. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369, citing Evid. Code § 452(c).) “In California, all government tort liability must be based on statute.” (Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 653, citing Gov. Code §815.) Plaintiff sufficiently alleg...

Excerpt: ...Katherine M. Stride's Motion for an Order Compelling Defendant Michael Messian to Further Respond to Interrogatories And Requests For Production (Set One) is GRANTED IN PART. I. DEFENDANT MICHAEL MESSIAN'S MOTIONS TO COMPEL FURTHER RESPONSES TO FIRST SETS OF FORM INTERROGATORIES, SPECIAL INTERROGATORIES, AND REQUESTS FOR PRODUCTION In three separately filed motions, defendant Michael Messian seeks further responses from plaintiff Katherine M. Str...

Excerpt: ... Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265. (Fontenot, 198 Cal.App.4th at 265 [“Taken together, the decisions discussed above establish that a court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's aut...

Excerpt: ...le First Amended Complaint is GRANTED. Defendants Ric Linares and Sonia Linares' Motion for Leave to File Cross-Complaint is GRANTED. I. MOTION FOR JUDGMENT ON THE PLEADINGS Plaintiffs argue defendants did not meet and confer before filing this motion, as required by CCP § 439(a). Defendants attached a meet and confer declaration indicating that the parties' respective counsel spoke on December 22, 2020 regarding the proposed filing of this moti...

Excerpt: ...ANTED. A. DEFENDANTS' REQUEST FOR JUDICIAL NOTICE Moving defendants HFE, LLC and Wee Hin's (collectively, “HFE defendants”) request for judicial notice as to Exhibit A is GRANTED, pursuant to Evidence Code § 452(d). B. LIABILITY OF DEFENDANTS HFE, LLC AND WEE HIN Moving defendants contend that plaintiffs fail to allege that defendant Jianqiang Gu or CADM Inc. (“CADM”) were agents or employees of HFE or Hin, that Gu or CADM acted within t...