Excerpt: ... immunity bars these causes of action. “[A]rbitral immunity applies where one of the parties to the arbitration seeks to impose liability based on the alleged bias of the arbitrator or the sponsoring organization.” (Stasz v. Schwab (2004) 121 Cal.App.4th 420, 441.) “In determining whether absolute immunity applies to the conduct of a public or private arbitrator, the courts look at the nature of the duty performed [to determine] whether it ...

Excerpt: ... Decl., Ex. 1.) All five subpoenas designate the same 53 matters of examination and 21 requests for production. (Ibid.) Procedural Issues Plaintiffs contend the notices to consumer under CCP § 1985.3 are defective. When a party subpoenas a person's attorney, the party “shall serve or caused to be served on the consumer whose records are being sought” a notice and copy of the subpoena. (CCP § 1985.3(b).) The notices to consumer are addressed...

Excerpt: ...rticle and that either: (1) A cause of action exists against the party upon whom service is to be made or he or she is a necessary or proper party to the action. (2) The party to be served has or claims an interest in real or personal property in this state that is subject to the jurisdiction of the court or the relief demanded in the action consists wholly or in part in excluding the party from any interest in the property. (b) The court shall o...

Excerpt: ...nt. Seven of Loveall's purported affirmative defenses are not affirmative defenses. Rather than denying the plaintiff's allegations, affirmative defenses assert new allegations that would defeat the plaintiff's claims. (CCP § 431.30(b); FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383-385.) Two affirmative defenses simply deny plaintiff's allegations: (1) The 14th affirmative defense that Loveall's conduct conformed to the law. ...

Excerpt: ...IPA (CFC) alleges the following causes of action against d efendants Regal Medical Group, Inc. (Regal), Heritage Provider Network, Inc. (Heritage), Sierra Medical Group, Inc. (Sierra), and Lakeside Medical Organization, a Medical Group, Inc. (Lakeside) (collectively defendants): · First Cause of Action: Interference with Contractual Relations · Second Cause of Action: Inducing Breach of Contract · Third Cause of Action: Interference with Prosp...

Excerpt: ...notice of the demurrer and hearing date for Jeffrey Lewis's demurrer instead of his own. (Notice, p. 2.) “ ‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all.' ” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) A party ...

Excerpt: ...Inc. makes 30 objections to the declaration of Payam Shahian. Objection Nos. 1-13, 19-22, and 29-30 are sustained. Objection Nos. 14-18 and 23-28 are overruled. Defendant makes one objection to the declaration of Michael Rosenstein. The objection is overruled. Lodestar Plaintiff seeks attorney fees based on the following hours and rates: Attorney Hours Rate Billed Bercegeay 3.8 $ 375.00 $ 1,425.00 Clark 3.2 $ 565.00 $ 1,808.00 Crandall (rate 1) 0...

Excerpt: ...e doctrine of equitable estoppel. Under that doctrine, “a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are intimately founded in and intertwined with the underlying contract obligations.” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 495 (Felisilda).) Felisilda considered this issue based on a similar arbitration provisi...

Excerpt: ...ces (2007) 153 Cal.App.4th 1308, 1315.) “[T]he defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (Id. at p. 1316.) This argument fails because any defect based on the statute of limitations does not appear from the face of the complaint. The complaint alleges causes of action arising from events that occurred from 2012 to 2015. It also al...

Excerpt: ... responses to requests for admission, the responding “party then fails to obey” that order, “the court may order that the matters involved in the requests be deemed admitted.” (CCP § 2033.290(e).) Uber did not disobey the court's order compelling further responses. On August 30, 2021, the court ordered Uber to serve further responses to plaintiff's requests for admission Nos. 2, 4, 7, 9-15, and 20. (Bhola Decl., Ex. B.) Uber did not diso...

Excerpt: ... amended complaint. A non-party cannot demur to or move to strike allegations in the pleading. “The party against whom a complaint… has been filed may object, by demurrer.” (CCP § 430.10.) The complaint was not filed against Crown Energy Services, Inc. dba Able Engineering Services. “Any party, within the time allowed to respond to a pleading,” may file a motion to strike. (CCP § 435(b)(1).) Crown Energy Services, Inc. dba Able Engine...

Excerpt: ...scovery, admissibility ‘is not the test and it is sufficient if the information sought might reasonably lead to other, admissible evidence.' ” (Reply, p. 2.) That is the standard for the scope of discovery, not the admissibility of evidence on a discovery motion. Brixton's objection is sustained. Further Responses Plaintiff moves for further responses to the following requests for production: No. 1: “YOUR financial statements, including but...

Excerpt: ...ot the “prevailing party.” In ruling on the parties' motions to strike or tax costs, the court already found plaintiff was the prevailing party under both Code of Civil Procedure section 1032, subdivision (a)(4) and Civil Code section 1794, subdivision (d). Section 998 Offer Defendant argues plaintiff failed to obtain a more favorable judgment than its $16,000 settlement offer under Code of Civil Procedure section 998. Defendant argues that, ...

Excerpt: ...on, et al. Cross-Defendants. ) ) ) ) ) ) ) ) Plaintiffs/cross-defendants City of Burbank (City) and the People of the State of California, by and through City Attorney Joseph H. McDougall, generally demur to the second amended cross-complaint (SACC) filed by cross-complainants Barfly, Inc. (Barfly), Baret Lepejian, Lucas Lepejian, and Tayla Lepejian. Barfly operates a restaurant known as Tin Horn Flats Saloon & Grill in Burbank. Baret, Lucas, and...

Excerpt: ...dment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) A motion for leave to amend will normally be granted unless (a) the party seeking to amend has delayed bringing the proposed amendment; and (b) the delay in seeking leave to amend will cause prejudice to an opposing party. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Plain...

Excerpt: ...” (Knox v. Dean (2012) 205 Cal.App.4th 417, 432, internal quotes and citations omitted.) The complaint alleges only the first element. It alleges defendants Kingdom Business Real Estate, Inc. and Rhee were plaintiff's real estate agents. (Comp., ¶ 33.) The complaint fails to allege facts constituting breach of a fiduciary duty. “[A]ctionable misrepresentations must pertain to past or existing material facts. [Citation.] Statements or predict...

Excerpt: ...cle at any time after the dispute over fees, costs, or both, has arisen. In the absence of such an agreement, either party shall be entitled to a trial after arbitration if sought within 30 days, pursuant to subdivisions (b) and (c)… . (b) If there is an action pending, the trial after arbitration shall be initiated by filing a rejection of arbitration award and request for trial after arbitration in that action… . (c) If no action is pending...

Excerpt: ...C's finances Arable must respond to these requests. Arable argues some documents do not exist. That is not a valid objection. It is a basis for providing a substantive sworn response at the deposition to the request. (See CCP § 2031.230 [describing inability to comply statement in response to written demand for production of documents].) Arable also argues plaintiff already has the responsive documents and information. In contrast with interroga...

Excerpt: ... 10 Cal.App.4th 1374, 1384.) Causes of action are identical when either would serve as res judicata or claim preclusion of the other. (Ibid.) There is already another action pending between the same parties on plaintiff Along Comes Mary, LLC's first cause of action for breach of contract. In case No. 18STLC02532, Premium Escrow, Inc. filed a complaint in interpleader against Along Comes Mary, LLC, Charlie Lac, and Ying Chin Wu. An answer to an in...

Excerpt: ...inning January 1, 2015, and ending January 1, 2018). 3. Performance evaluations and reviews. 4. Complaints by employees about Ms. Rael. 5. Complaints by Ms. Rael about employees. 6. Disciplinary actions pertaining to Ms. Rael. 7. Termination documents pertaining to Ms. Rael. (Separate Statement p. 2.) Defendant agreed to strike category one. (Opp., p. 5.) Plaintiff argues these document requests violate her constitutional privacy rights. “The p...

Excerpt: ...l notice under Evidence Code § 452(d)(1). The court may take judicial notice of their existence and legal effects but not the truth of facts asserted therein. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569.) All requests for judicial notice are granted. Evidentiary Objections Defendant makes nine objections to the declaration of Anne Kihagi dated July 15, 2019. Objection Nos. 2, 4, and 6 to 9 are sustained. Objection Nos. 1, 3, and 5 are ove...

Excerpt: ...rties do not dispute that defendant S & H is one of the “Brothers' Collectively Owned Entities.” Plaintiff Daniel Horwath opposes the motion on five grounds. First, plaintiff alleges S & H is merely a nominal defendant, so there is no dispute between him and the corporation subject to the arbitration agreement. Plaintiff relies solely on Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995. There, the court held that “a nominal defendant corp...

Excerpt: ...ovides, “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint” without a court order upon a motion by the plaintiff. The plaintiff must establish “there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” This motion is not properly before the court because plaintiff's...

Excerpt: ...). Timeliness Rajesh Jogani argues the motion is untimely with respect to him. A motion to compel a deponent to answer questions asked at deposition “shall be made no later than 60 days after the completion of the record of the deposition.” (CCP § 2025.480(b).) Rajesh argues the record of the deposition was completed in 2017. In this motion, the Haresh parties move to compel Rajesh to answer questions asked at his deposition on February 22, ...

Excerpt: ...e causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) Defendant argues plaintiff fails to plead causation. Plaintiff alleges, inter alia, that defendant breached its duty of care by not retaining an expert in a patent case involving a complex medical device. (Comp., ¶¶ 32-36.) Defendant argues failure t...

Excerpt: ... compel arbitration of plaintiff Paul Rodriguez's causes of action and to stay this case pending arbitration. Rodriguez does not dispute that the Restricted Stock Unit Agreement (RSU) (Rodriguez Decl. ISO TRO, Ex. C) requires him to arbitrate this action. The only dispute concerns whether the court should sever the Illinois choice-of-law clause.[1] I. The delegation clause is enforceable “Parties to an arbitration agreement may agree to delegat...

Excerpt: ...ed and Akshi Investments Limited (Haresh parties) move for summary judgment or summary adjudication of the first through third and fifth through eighth causes of action in Rajesh Jogani's second amended cross-complaint and Chetan Jogani's third amended cross- complaint. A. Partnership Agreement The Haresh parties argue the oral partnership agreement underlying Rajesh's and Chetan's causes of action is uncertain and unenforceable. The court declin...

Excerpt: ... for summary adjudication must show “that one or more elements of the cause of action… cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2).) Once the defendant does so, the burden shifts to the plaintiff to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Plaintiff's fifth cause of action alleges failure to reimburse busines...

Excerpt: ... discovery method” if: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive. (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. This is a lemon law case about plaintiff's 2018 Cadil...

Excerpt: ...different facts or law earlier. (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 46; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1200.) Plaintiff fails to show diligence. Plaintiff's motion relies on the following “different facts”: testimony from her deposition taken on December 16, 2019 (Pardo Decl., Ex. 3, Transcript) and internal emails from Kia sent in June 2017 (Pardo Decl., Ex. 4). She f...

Excerpt: ...es three causes of action: (1) specific performance, (2) quiet title, and (3) declaratory relief. All three arise from an alleged contract executed in 2017. (Comp., ¶¶ 7-32, Ex. A.) It is undisputed that defendant Victor Manuel Orellana has “lived in Orange County for over 20 years” and has “never resided in Los Angeles County.” (V. Orellana Decl., ¶ 2.) Defendant states, “The agreement was written and signed in my presence in Orange...

Excerpt: ...5.450(b)(2) requires the moving party to meet and confer. “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040.) Defendant served objections to the deposition notice on February 9, 2022. (Galaviz Decl., ¶ 5, Ex. 2.) The same day, plaintiff's counsel sent an email asking defendant to withdraw its ob...

Excerpt: ...plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) Pico fails to allege facts—rather than conclusions—regarding the first element. It vaguely ...

Excerpt: ...on for violation of the Rosenthal FDCPA. Defendant Pamela Abbott Moore also moves for judgment on the pleadings on the 15th and 16th causes of action. Extrinsic Evidence Both motions make several arguments relying on extrinsic evidence—a letter sent to Muldrow on October 26, 2016. “Presentation of extrinsic evidence is … not proper on a motion for judgment on the pleadings.” (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999....

Excerpt: ...demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) The sham pleading doctrine does not apply because plaintiffs did not omit any harmful allegations from the initial complaint. There were no harmful allegations on the relevant topic—the delayed discovery rule. Wiseman contends that the first amended complaint fails to allege sufficient facts to rely on that doctrine. (Demurrer, p. 7.) Wisem...

Excerpt: ...t (FAC) relating to specific performance: 1. Paragraph 53, page 11, lines 16-22: “As an actual and proximate cause of the breach of the contract, Ms. Chen has suffered, and will continue to suffer, irreparable damage for which there is no adequate remedy at law. Ms. Chen is entitled to a decree of specific performance enforcing Ms. Chen's right under the UPA to permit a fair and transparent valuation process, namely to have an independent, mutu...

Excerpt: ... first amended cross-complaint fails to allege sufficient facts for this cause of action. Breach of contract requires: (1) a contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) resulting damages. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Gur fails to allege a valid contract. He alleges an oral agreement to buy Mark and Gila Standring's interest in real property. Agreements for the sale...

Excerpt: ...th seven grounds for a motion for new trial. In his notice of motion, plaintiff cites all seven grounds. But in his memorandum of points and authorities, he only discusses three statutory grounds, namely an irregularity of the proceedings (§ 657(1)), misconduct of the jury (§ 657(2)), and inadequate damages (§ 657(5)). Under article VI, section 13 of the California Constitution, the court generally cannot grant a new trial unless, “after an ...

Excerpt: ...oceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” "Because the 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.' ” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.) DOOH Transport Services, LLC, Erroneously Sued as LED Truck, LLC The court cannot set aside default against DOOH Tran...

Excerpt: ...cepted by the Department of Fair Employment and Housing is an official act of a government agency subject to judicial notice under Evidence Code § 452(c). Defendants' request for judicial notice is granted. (1) Judgment on the Pleadings Defendants Valley Intercommunity Council, Inc. and Beverly Ventriss move for judgment on the pleadings based on the statute of limitations. “A motion for judgment on the pleadings is equivalent to a demurrer an...

Excerpt: ...2210 Echo Park Partners, LLC or Reservoir Partners, LLC. Plaintiff's causes of action do not rely on piercing the corporate veil via the alter ego doctrine. “Ordinarily, a corporation is regarded as a legal entity, separate and distinct from its stockholders, officers and directors, with separate and distinct liabilities and obligations.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) Plaintiff does not allege McIner...

Excerpt: ...quested 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.” The parties agreed to settle this case in October 2021. (Ledbetter Decl., ¶ 2, Ex. 1.) The settlement provides for the court to retain jurisdiction under CCP § 664.6. (Id., § 2.b.) Defendant Jaguar Land Rover North America, LLC has not performed its obligations under the settlement. D...

Excerpt: ...e, and model of the subject vehicle and to complaints of making noise while driving or a tapping noise from the left rear door/seat area while driving. (Yashar Decl., ¶¶ 10-11, Ex. 6.) Nos. 13-16 Request Nos. 13-16 asked for: No. 13: All DOCUMENTS IDENTIFYING repurchases made by YOU of the 2020 Mercedes GLS450, vehicles and allegedly containing any of the conditions, defects, or nonconformities for which Plaintiff presented the SUBJECT VEHICLE ...

Excerpt: ... that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the property in question, within five years before the commencement of the action.” (CCP § 318.) Plaintiff argues the applicable statute of limitations is three years under CCP § 338(d) for “[a]n action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, ...

Excerpt: ... all necessary jurisdictional criteria are met.” (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.) Consent Plaintiff Civic Financial Services, LLC argues Collins consented to personal jurisdiction in California. He did not. “[A] party can consent to personal jurisdiction, when it would not otherwise be available.” (Global Packaging, Inc. v. Superior Court (2011) 196 Cal.App.4th 1623, 1629 (Global Packagi...

Excerpt: ...137.) Walsh has never resided in California and was last in California 17 years ago. (Walsh Decl., ¶ 5.) She has never owned property in California. (Id., ¶ 6.) Except for online activities that happen to be accessible here, she has never done business in California. (Id., ¶ 7.) Plaintiff Judi Lynn Fox's opposition uses the term “general jurisdiction,” but plaintiff's substantive argument concerns specific jurisdiction based on “sufficie...

Excerpt: ... LP; and The Medallion Inc. The first amended complaint fails to state sufficient facts to constitute conversion. “The basic elements of [conversion] are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th...

Excerpt: ... in time to defend the action and a default or default judgment has been entered against him or her in the action,” the defendant may move to set aside the default or default judgment. (§ 473.5, sub. (a).) “Upon a finding by the court that the motion was [timely] and that [defendant's] lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or d...

Excerpt: ...re for resolving arbitration fee disputes in elder abuse cases. “[T]he trial court must estimate the anticipated cost of the arbitration proceeding…, and then determine whether [plaintiff is] financially able to pay.” (Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 96.) If not, the court “must issue an order specifying that [defendant] has the option of either paying that plaintiff's share of the arbitration cost or waiving its ri...

Excerpt: ...ons, LLC (Drago). Evidentiary Objections Drago makes 11 objections to the declaration of Terry Karges. All 11 objections are overruled. Drago makes 23 objections to the declaration of Eitan Ginsburg. Objection Nos. 6, 9, and 11 are sustained. Objection Nos. 1-5, 7, 8, 10, and 12-23 are overruled. Drago makes six objections to the declaration of Franjo Dolenac. Objection Nos. 1, 2, 5, and 6 are sustained. Objection Nos. 3 and 4 are overruled. Pete...

Excerpt: ...the properties' boundary. And on July 20, 2020, the court issued a preliminary injunction requiring defendants to move their air conditioning and pool equipment to the area at the south side of their property. This order shall address two applications relating to the court's preliminary injunctions. The first is plaintiffs' application for an order to show cause (OSC) re contempt for defendants' failure to comply with the 2020 preliminary injunct...

Excerpt: ..., Ex. C, ¶¶ 1.a-b.) The agreement provides for a stipulated judgment of $125,000 if defendants default. (Id., Ex. B, ¶ 1.d., Ex. C, ¶ 1.d.) Defendants defaulted after paying $84,999. (Moghaddami Decl., ¶¶ 8, 10.) A judgment of $125,000 against defendants may be void as an unenforceable penalty. A provision for liquidated damages upon default in a settlement agreement is void as an unenforceable penalty when it is disproportionate to the ant...

Excerpt: ...ed the fact with intent to defraud plaintiff; (4) plaintiff must have been unaware of the fact and would have acted otherwise if he had known of the concealed fact; and (5) the omission caused damages. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) A cause of action for fraud requires specifically pleading each element. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 (...

Excerpt: ...CCP § 1281.) The law favors enforcement of valid arbitration agreements. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) Plaintiff Kamran Broukhim opposes the motion on the grounds that the arbitration clause does not apply to his claims and the agreement did not adequately inform him he was waiving his right to a jury trial. Scope of Agreement The agreement's arbitration provision applies to plaintiff's clai...

Excerpt: ...alifornia (2003) 31 Cal.4th 1187, 1195.) The issue of prejudice “is critical in waiver determinations.” (Id. at p. 1203.) “Because merely participating in litigation, by itself, does not result in a waiver, courts will not find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses.” (Ibid.) Plaintiff fails to meet her burden of establishing waiver. Plaintiff filed the complaint on June 2...

Excerpt: .... (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Plaintiff fails to allege breach. He alleges two potential purported breaches. First, he alleges: “On or about February 19, 2021, Defendant's counsel wrote to SILVA that he was terminated under the AGREEMENT as of March 15, 2021 unless all work was completed, including approvals and work to be performed by Defendants. March 21 [sic], 2021 was, however, never defined in the Agreement as a...

Excerpt: ...f notice by two court days. (CCP § 1010.6(a)(4)(B).) Defendant served this motion by email on February 15, 2022. (Motion, p. 13, POS.) That was 16 court days before this hearing on March 10. Because defendant served the motion electronically, plaintiff was entitled to 18 court days' notice. The court exercises its discretion to consider the motion, though it was not timely served and filed. “[A] trial court has broad discretion in allowing rel...

Excerpt: ...s evidence. The objection is sustained. 1. Failure to Repair After Reasonable Number of Attempts Kia is entitled to summary adjudication of this cause of action. Under the Song-Beverly Act, the plaintiff must prove: “(1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of t...

Excerpt: ...causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) “An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Plaintiff fails to a...

Excerpt: ...CP § 2033.420(a).) “Costs of proof are recoverable only where the moving party actually proves the matters that are the subject of the requests. [Citations.] This means evidence must be introduced.” (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529 (Grace).) “ ‘Proof' is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (Evid. Code, § 190.) The moving par...

Excerpt: ...on requirements. The court therefore does not address the issue. I. Demurrer Plaintiff/cross-defendant St. Denis Homeowners Association demurs to the third cause of action for nuisance and the fifth cause of action for declaratory judgment. A. Nuisance Kelly alleges sufficient facts to constitute nuisance. St. Denis contends she does not allege breach of any duty independent of the parties' contract. “Conduct amounting to a breach of contract b...

Excerpt: ...ush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384.) Causes of action are identical when either would serve as res judicata or claim preclusion of the other. (Ibid.) A demurrer or plea of abatement on this basis can be sustained as to the common defendant when the actions also have some defendants not in common. (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 897.) Plaintiff's first cause of action in this complaint is identical to the second cause ...

Excerpt: ...all necessary jurisdictional criteria are met.” (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.) Consent Plaintiff Civic Financial Services, LLC argues Collins consented to personal jurisdiction in California. He did not. “[A] party can consent to personal jurisdiction, when it would not otherwise be available.” (Global Packaging, Inc. v. Superior Court (2011) 196 Cal.App.4th 1623, 1629 (Global Packagin...

Excerpt: ...able. CCP § 2025.450(a) provides for a motion to compel the deposition of a party who fails to appear “without having served a valid objection under Section 2025.410.” Petersen served a notice of deposition for 47 specified matters with three requests for documents scheduled for December 14, 2021. (Dolenac Decl., ¶ 2, Ex. 1.) On December 9, 2021, Drago served objections. It generally objected that counsel and the deponent were not available...

Excerpt: ...or work, and (9) she worked overtime, and all writings reflecting and evidencing: (10) the time she spent driving for work, and (11) the locations and businesses she visited for work. To each request, plaintiff responded: “After diligent search and reasonable inquiry, Responding Party shall produce all responsive documents in her possession, custody or control, produced herein as [specified Bates numbers].” Defendant argues that the documents...

Excerpt: ...issal made this motion moot. It did not. Dismissal generally deprives the court of jurisdiction, but courts retain jurisdiction over collateral matters including sanctions under CCP §§ 128.5 and 128.7. (Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1124-1125.) The court retains jurisdiction over this motion. The collateral matter of monetary sanctions is not moot. Merits Defendants move for sanctions on the grounds that plaintiffs' first amen...

Excerpt: ...drafts of a proposed protective order. (Id., ¶ 11.) That the parties ultimately could not agree on a protective order does not mean plaintiff failed to meet and confer in good faith. Merits Plaintiff noticed the deposition of defendant Lyft, Inc.'s person(s) most qualified to testify about 16 specified matters with 15 accompanying requests for production. Defendant made voluminous general objections and specific objections to each topic of exami...

Excerpt: ...net monetary recovery.” Plaintiff recovered $16,266.38. Defendant recovered nothing. Plaintiff won a net monetary recovery and is the prevailing party entitled to costs under CCP § 1032. Under Civil Code § 1794(d), a plaintiff can recover more expenses than under CCP § 1032. (Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 42 (Warren).) But the plaintiff must do more than merely achieve a net monetary recovery. The plaintiff mus...

Excerpt: ...ony, documents, or other material evidence despite diligent efforts” indicates good cause. (Rule 3.1332(c)(6).) The failure of the parties and their counsel to diligently prepare for trial is not good cause to continue the trial. (Kuhland v. Sedgwick (1860) 17 Cal. 123, 128 [“The absence of evidence is no cause for a continuance, unless reasonable diligence has been used to procure it”]; People v. Grant (1988) 45 Cal.3d 829, 844 [a defendan...

Excerpt: ....1345(a).) But rule 3.1345(b)(1) provides, “A separate statement is not required … [w]hen no response has been provided to the request for discovery.” There has been no response to these requests, so a separate statement is not required. Meet and Confer Plaintiff contends defendant failed to make a reasonable effort to informally resolve this dispute before filing its motion. “A meet and confer declaration in support of a motion shall sta...

Excerpt: ...San Francisco CDC LLC v. Webcor Construction L.P. (2021) 62 Cal.App.5th 266, 281, fn. 5; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) The requests for judicial notice are granted. Material Violation Plaintiff's first, third, fourth, fifth, and sixth causes of action require a “material violation” of the Homeowner's Bill of Rights. Civil Code § 2924.19(a)(1) provides, “If a trustee's deed upon...

Excerpt: ...t existing right; and (3) prejudice to the party opposing arbitration resulting from such inconsistent acts.” (Martin v. Yasuda (9th Cir. 2016) 829 F.3d 1118, 1124, internal quotes, citations, and alterations omitted [FAA]; Aviation Data, Inc. v. American Express Travel Related Services Co., Inc. (2007) 152 Cal.App.4th 1522, 1537 [CAA].) Defendants have waived their right to compel arbitration. First, they knew of their right to compel arbitrat...

Excerpt: ...to comply with two procedural requirements under PAGA. First, PAGA has a pre-filing requirement of notice to the Labor and Workforce Development Agency (LWDA). A civil action by an aggrieved employee [under PAGA] shall commence only after the following requirements have been met: [¶¶] (2)(A) The agency shall notify the employer and the aggrieved employee or representative by certified mail that it does not intend to investigate the alleged viol...

Excerpt: ... amended complaint filed by plaintiff Drago Culinary Productions, LLC (Drago). EVIDENTIARY OBJECTIONS Defendant makes 20 objections to plaintiff's evidence. Objections 1-4, 9-10, and 14-20 are sustained. Objections 5-8 and 11-13 are overruled. ANALYSIS Courts grant summary adjudication where there are no triable issues of fact and the moving party shows that an action or cause of action must be decided in its favor as a matter of law. (Code Civ. ...

Excerpt: ...me and advances the hearing on plaintiff's motion to bifurcate trial from March 22, 2022, to March 7, 2022, at 9:00 a.m. The parties are ordered to meet and confer within five days regarding bifurcation of trial. Tentative Ruling: Defendants Ladera Crest Homeowners Association's and Lordon Management's Six Discovery Motions Reopen Discovery Defendants Ladera and Lordon jointly move to reopen discovery for the court to rule on the other five motio...

Excerpt: ... complaint's second cause of action for breach of the implied covenant of good faith and fair dealing; 3. VDI and Gupta are entitled to judgment as a matter of law on their cross- complaint's first cause of action for declaratory judgment; and 4. The court should find “as a matter of law that Movants' duty pursuant to the Settlement Agreement alleged in the Complaint and Cross-complaint was limited only to precluding Movants from using or refer...

Excerpt: ...ry Judgment Courts grant summary judgment or adjudication where there are no triable issues of fact and the moving party shows that an action or cause of action must be decided in its favor as a matter of law. (CCP § 437c(f)(1); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) A moving defendant must show “that one or more elements of the cause of action… cannot be established, or that there is a complete defense to the cause of action.”...

Excerpt: ...rm Entertainment, Inc. (2016) 246 Cal.Ap.4th 1064, 1079.) Plaintiff fails to allege a misrepresentation. Plaintiff alleges defendant has “raised improper fees and charges” on his mortgage. (Comp., ¶ 17.) “The amounts in the Notice of Default are incorrectly calculated, and includes charges not permitted under the loan document, and is in breach of the loan document.” (¶ 19.) Defendant has “been demanding under threat of foreclosure, a...

Excerpt: ...h 82, 88 (Navellier).) The defendant must show “the cause of action is based on the defendant's protected free speech or petitioning activity.” (Id. at p. 89.) Second, once the defendant establishes the first element, courts “must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Navellier, 29 Cal.4th at p. 88.) “[T]he plaintiff need only have stated and substantiated a legally sufficient ...

Excerpt: ...demand or collect rent if: (1) the dwelling is substandard or not habitable; (2) a public employee inspected the premises and notified the landlord of his “obligations to abate the nuisance or repair the substandard conditions”; and (3) the conditions continued for 35 days after that notice. The complaint does not allege the second or third elements. It does not allege any public employee inspected the property or notified defendant of his ne...

Excerpt: ... 1281.2.) The moving party can meet the “initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060 (Espejo).) For this initial burden, “‘it is not necessary to follow the normal procedures of document authentication.' [Citation.]” (Id. at p. 1058.) Only aft...

Excerpt: ...ents Limited (Haresh parties) move to dismiss plaintiff Shashikant Jogani's operative complaint for delay in prosecution. A. Applicable Time Limit The time limit for a plaintiff to bring an action to trial is governed by a chapter in the Code of Civil Procedure, section 583.110 et seq.[1] Plaintiff contends the applicable statute in this chapter is section 583.320. The Haresh parties contend it is 583.350. The court finds plaintiff is correct. Se...

Excerpt: ...erminating, or monetary sanctions. (CCP § 2030.300(e).) On July 28, 2021, the court ordered plaintiff to provide further responses to form interrogatory – general No. 8.7 and to special interrogatory No. 25 and to pay $2,765 in monetary sanctions. Plaintiff disobeyed that order. He has not paid the monetary sanctions. (Kossoff Decl., ¶¶ 15-17.) Plaintiff served supplemental responses but did not verify them under oath. (Ibid.) “Unsworn res...

Excerpt: ...t make the subpoenas overbroad. Addressing a similar argument, the Court of Appeal in SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 757, held: “The definitions included with the requests for production, though lengthy, do not make the requests overbroad, and do not turn them into blanket or generalized demands. The definition of ‘DOCUMENT,' for example, does not broaden the scope of the requests, but provides particular...

Excerpt: ...a) for violation of the Davis- Stirling Common Interest Development Act. Plaintiff argues there are no triable issues of fact as to whether Ladera violated Civil Code sections: (1) 4805, (2) 5655, (3) 5705, (4) 5720, and (5) 5710. Courts grant summary adjudication where there are no triable issues of fact and the moving party shows that a cause of action must be decided in its favor as a matter of law. (CCP § 437c(f)(1); Villa v. McFerren (1995)...

Excerpt: ...s a matter of law or where the facts alleged fail to constitute oppression, fraud, or malice. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164; see Civ. Code, § 3294(a).) “ ‘Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294(c)(1).) The comp...

Excerpt: ...ent Claims Act The first amended complaint fails to allege sufficient facts to constitute a cause of action against defendant County of Los Angeles. The Government Claims Act “establishes certain conditions precedent to the filing of a lawsuit against a public entity.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1237.) “[A] plaintiff must allege facts demonstrating or excusing compliance with the claim presentation requir...

Excerpt: ...hin 15 days after the date of service of the notice of entry of judgment.” (Cal. Rules of Court, rule 3.1700(a)(1).) Defendants served notice of entry of judgment on November 10, 2021. Fifteen days later fell on November 25—Thanksgiving Day. The day after Thanksgiving, November 26, was also a holiday. (CCP § 135.) “If the last day for the performance of any act provided or required by law to be performed within a specified period of time i...

Excerpt: ... “defendant.” Evidentiary Objections Plaintiffs make two objections to the Declaration of Soheyl Tahsildoost. Both are overruled. Existence of Agreement Plaintiffs argue defendant failed to meet its burden of proving the existence of an agreement because they did not properly authenticate it. A party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (CCP § 1281.2.) The moving pa...

Excerpt: ...nt, or the receipt of any employment-related benefit, require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of” FEHA or the Labor Code, including the right to file a civil action in court. But subdivision (f) provides, “Nothing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act (9 U.S.C. Sec. 1 et seq.)...

Excerpt: ...bdivision (a)(3) and sixth cause of action for fraudulent inducement in plaintiff Gonzalo Ponce Martinez's first amended complaint. I. Third Cause of Action for Violation of Civil Code § 1793.2(a)(3) Plaintiff's third cause of action is based on the Song-Beverly Consumer Warranty Act., Civil Code section 1790 et seq. (the Act). Under the Act, manufacturers of vehicles must “[m]ake available to authorized service and repair facilities sufficien...

Excerpt: ...h cause of action for negligent misrepresentation, and the 12th cause of action for “fraud – promise made without intent to perform.” After the Wolfe parties demurred, the court consolidated case Nos. 20STCV32017 and 21GDCV00232. Steinberg Law's complaint in No. 21GDCV00232 was deemed the cross-complaint to Wolfe's complaint in No. 20STCV32017. 10th Cause of Action: Intentional Misrepresentation Steinberg Law fails to allege sufficient fact...

Excerpt: ...(FAC). SUMMARY OF FACTS ALLEGED IN FAC “Plaintiff is a customer of Verizon and has a dedicated Verizon wireless phone number as a member of family plan contract provided by Verizon. . . . The primary account holder of this Verizon family plan, Bin Dai, has also assigned all rights, causes of action, and claims he may have against Verizon to Plaintiff.” (FAC, ¶ 19.) “Verizon knew that Plaintiff owned a phone with Verizon wireless service be...

Excerpt: ...pel further responses when “[a] representation of inability to comply is inadequate, incomplete, or evasive.” (CCP § 2031.310(a)(2).) CCP § 2031.230 provides, “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inabili...

Excerpt: ... agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement. [Citation.] They ‘can agree to arbitrate almost any dispute—even a dispute over whether the underlying dispute is subject to arbitration.' [Citation.]” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 241 (Tiri.)) Plaintiff argues, “[W]hen a party alleges that an arbitration agreement is unconscionable, ...

Excerpt: ...amended cross-complaint (FACC) of TFCF Holdings LLC (FSLA), TFCF Latin American Channel LLC (FLAC), and Fox Sports Mexico Distribution LLC (FSMD). Santos also moves to strike portions of the first amended cross-complaint. REQUEST FOR JUDICIAL NOTICE Cross-defendant requests judicial notice of five exhibits. The request for judicial notice is denied as to exhibits one through four and granted as to exhibit five. DEMURRER Santos demurs to one of tw...

Excerpt: ...first amended complaint (FAC) alleges the following causes of action against defendants Arable, AC, Moss Adams LLP, and Kamaldeep Dhaliwal: # Cause of Action Against 1 Breach of Contract AC 2 Tortious Interference with Contract (California Law) Arable, Dhaliwal 3 Conspiracy to Tortiously Interfere with Contract Arable, Dhaliwal 4 Aiding and Abetting Tortious Interference with Contract Dhaliwal, Moss Adams 5 Tortious Interference with Contract (Wa...

Excerpt: ...ant cannot reasonably respond.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) The complaint must sufficiently apprise defendants of the claims against them. (Ibid.) In addition, California Rules of Court, rule 2.112(4) requires that each cause of action must specifically state “[t]he party or parties to whom it is directed (e.g., ‘against defendant Smith').” Failure to properly identify the defendants t...

Excerpt: ... moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction.” (Butt v. State of California (1992) 4 Cal.4th 668, 677–678 (Butt).) The second factor concerns “the comparative consequences of the issuance and nonissuance of the injunction” before trial. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442 (Common Cause).) “The trial court's ...

Excerpt: ...ack of personal jurisdiction. Powermax is a company organized in the People's Republic of China and maintains its principal place of business in Jiangmen City, Guangdong, China. (Tsui Decl., ¶ 5.) CCP § 418.10(a)(1) provides that a defendant (including a cross-defendant) may move “[t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” “When a nonresident defendant challenges personal jurisdictio...