Excerpt: ...of action for interference with easement, the second cause of action for negligence, the fourth cause of action for nuisance, and the seventh cause of action for declaratory relief solely on the grounds that "no valid easement exists." (Demurrer, p. 6.) The claims for negligence and nuisance do not depend on the validity of the disputed easement. Plaintiffs allege sufficient facts for interference with easement and for declaratory relief. Defenda...

Excerpt: ...t contradicts the allegation that defendants did not pay the money they agreed to pay plaintiff. "Facts appearing in attached exhibits control over contradictory factual allegations in operative complaint" (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 39.) Defendants' argument relies on a fundamental misinterpretation (or mischaracterization) of the deed of trust attached as exhibit 1 to the complaint. The c...

Excerpt: ...t contradicts the allegation that defendants did not pay the money they agreed to pay plaintiff. "Facts appearing in attached exhibits control over contradictory factual allegations in operative complaint" (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 39.) Defendants' argument relies on a fundamental misinterpretation (or mischaracterization) of the deed of trust attached as exhibit 1 to the complaint. The c...

Excerpt: ...n Defendant does not dispute that he did not comply with the notice of his deposition. He instead argues plaintiff improperly demanded to conduct the deposition in person rather than remotely. Defendant argues he has the right to testify remotely at deposition under Code of Civil Procedure section 2025.310 or California Rules of Court, rule 3.1010. Both provisions, however, give the deposing party (or that party's attorney) the right to be at the...

Excerpt: ...tes a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) The complaint alleges sufficient facts to constitute a cause of action under at least one legal theory: the Unruh Civil Rights Act. “All persons within the jurisdiction of this state are free and equa...

Excerpt: ...a supplemental demand to inspect, copy, test, or sample any later acquired or discovered documents, tangible things, land or other property, or electronically stored information in the possession, custody, or control of the party on whom the demand is made.” (CCP § 2031.050(a).) When the responding party fails to timely respond to requests for production, the requesting party may move for an order compelling responses. (CCP § 2031.300(b).) Fa...

Excerpt: ...uested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on ...

Excerpt: ...otice under Evidence Code § 452(d). (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.) Defendant also requests judicial notice of, “The State Bar of California's listing of licensed attorneys (calbar.ca.gov) which shows neither Janice Deutsch or Duff Shidaker are licensed to practice law in the State of California.” That fact is subject to judicial notice as an official act of the judicial department and a fact not re...

Excerpt: ...tion, and waives its right to compel arbitration under Section 1281.2.” (CCP § 1281.97(a)(1).) If the drafting party does not timely pay, the employee may “[w]ithdraw the claim from arbitration and proceed in” court. (CCP § 1281.97(a)(2).) “[T]he Legislature intended courts to apply the statute's payment deadline strictly.” (Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 771 (Espinoza).) “[T]he triggering event is nothing mor...

Excerpt: ...ne for an “order precluding defendant from relitigating issues that have been adjudicated against it in the workers' compensation appeals board.” The proposed order states the court would be granting plaintiff's motion for an order “collaterally estopping and precluding Defendant Massive Prints, Inc. from relitigating and/or challenging issues and facts that have been adjudicated against it in the Workers' Compensation Appeals Board.” Suc...

Excerpt: ...esponses to requests for production Nos. 1-3 and 11, to requests for admission Nos. 1-33, and to special interrogatories Nos. 1-11. These three motions are untimely. “Unless notice of this motion is given within 45 days of the service” of the response, the moving “party waives any right to compel a further response.” (CCP § 2030.300(c) [interrogatories]; § 2031.310(c) [requests for production]; § 2033.290(c) [requests for admission].) ...

Excerpt: ...etermine they are the prevailing parties and strike the other parties' memorandum of costs. “[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b).) “ ‘Prevailing party' includes the party with a net monetary recovery” and “a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in s...

Excerpt: ...he statute [of limitations] bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (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.) On demurrer, the court must determine: (1) which statute of limitations applies; and (2) when the claim accrued. (Ibid.) Fraud has a three...

Excerpt: ...me. Sealing The court finds good cause to seal the certificates of merit The general rules for sealing records "do not apply to records that are required to be kept confidential by law." (Cal. Rules of Court, rule 2_550(a)(2)_) Code of Civil Procedure section 340.1 provides that the court must review the certificates of merit (subd_ (i)) and certificate of corroborative fact (subd_ (n)) in camera. (See also Cal. Rules of Court, rule 2.585 ) The c...

Excerpt: ... months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting, to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was no...

Excerpt: ...ntiffs first cause of action for negligence, second cause of action for "violation of statutes," and third cause of action for negligent hiring fail due to sovereign immunity. "[A]ll government tort liability must be based on statute." (County ofSan Bernardino v. Superior Court (2022) 77 Cal.App.5th 1100, 1107.) " '[Slovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute.'" ...

Excerpt: ...der defendant to participate in alternative dispute resolution. Discovery Orders Substantively, the order plaintiffs seek requiring defendant to produce missing documents constitutes an order to compel compliance with a statement of compliance in response to requests for production. (CCP 2031_320_) Demanding that defendant provide contact information for witnesses is also an attempt to get an order for something plaintiffs should have obtained vi...

Excerpt: ... for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud " (Civ Code, 3295(d) ) This provision "requires a court, upon application of any defendant, to bifurcate a trial so that the trier of fact is not presented with evidence of the defendant's wealth and profits until after the issues of liability, compensatory damages, and malice, oppression, or fraud have been resolved against the defendant."...

Excerpt: ...tions and ending with the ultimate sanction of termination." (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 566, 604 ) "[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful ancVor the record clearly shows lesser sanctions would be ineffective." (Ibid.) Terminating sanctions are " 'ordinarily a drastic measure which should be emplo...

Excerpt: ... a triable issue of at least one material fact. (Aguilarv. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The opposing defendants "shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto." (CCP S 437c(p)(1).) Plaintiff alleges three causes of action: (1) public nuisance, (2) violation of narcotics abatement law (NAL), and (3) unfair competition. Plaintiff meets it...

Excerpt: ...umina Balasanyan's second amended cross-complaint based on the doctrine of res judicata_ The court sustained LA Solar Group's demurrer to the initial cross-complaint and the first amended cross-complaint under that doctrine The amendments in the sa•ond amended cross-complaint cure the defect Balasanyan now alleges cross-defendant refused to remove solar panels from Balasanyan's home before and after the prior small claims action (SACC, 12, 13) ...

Excerpt: ...y information permits defendant to compel arbitration. Section 4 of the warranty information provides: BINDING ARBITRATION FOR CALIFORNIA VEHICLES ONLY PLEASE READ THIS SECTION IN ITS ENTIRETY AS IT AFFECTS YOUR RIGHTS If you purchased or leased your Hyundai vehicle in the State of California, you and we each agree that any claim or disputes between us (including between you and any of our affiliated companies) related to or arising out of your v...

Excerpt: ..., In re: Melissa Mosich Miller (Case No.1:10-bk-19870-MT). Plaintiffs request judicial notice of three more documents filed in that proceeding. The documents are subjectto judicial notice as court records. (Evid. Code, S 452(d).) All requests for judicial notice are granted. Subject Matter Jurisdiction In this action, plaintiffs allege defendant breached a 2015 settlement agreement between the parties. Defendant contends that, pursuant to that ag...

Excerpt: ...10, 16, 18, 19, 22, 23, and 27 are sustained. Objection Nos_ 1, 2, 4-9, 11-15, 17, 20, 21, 24-26, and 28-33 are overruled. Defendants makes 21 objections (numbered 3-23) to plaintiffs evidence. Objection Nos_ 8, 18, 21, and 22 are sustained. Objection Nos. 3-7, 9-17, 19, 20, and 23 are overruled. Summary Judgment or Adjudication Courts grant summary judgment or adjudication where no triable Issues of fact exist and the moving party is entitled to...

Excerpt: ...ections Defendants Hyundai Motor America and South Bay Hyundai make seven objections to the declaration ofNorman F _ Taylor All seven objections are overruled Defendants make 16 objections to the declaration of Richard M. Wirtz. All 16 objections are overruled. Plaintiffs make two objections to the declaration of Sasha Bassi_ Both objections are overruled. Lodestar Plaintiffs seek attome fees based on the following hours and rates: Timekee er Rat...

Excerpt: ...ce an adequately prepared corporate representative to sit for at least seven hours of deposition testimony on" various topics. After Santos filed this motion (and after defendant and cross-complainants opposed it), cross-complainants Fox Sports Mexico Distribution LLC and TFCF Latin American Channel LLC dismissed their only cause of action without prejudice. The motion is therefore moot as to them. The remaining dispute concerns defendant The Wal...

Excerpt: ...aints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties." Motions for discovery of these records must include "[alffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the gov...

Excerpt: ...rve a timely response." (CCP S 2030.290.) Defendant did serve timely responses to the interrogatories. This is not a proper motion to compel responses. The substance of the relief requested takes precedence over the motion's label. (Hudson v. Superior Court (2017) 7 CalApp.5th 999, 1011; Powellv. Count-y ofOrange (2011) 197 Cal.App.4th 1573, 1577.) Plaintiff moves the courtto "obtain and review the documents in question" (though he does not ident...

Excerpt: ...endants request judicial notice of three exhibits. Defendants assert they are emails involving plaintiff They are improper extrinsic evidence at this stage. "On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. _ _ The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretatio...

Excerpt: ...of action under the Unruh Civil Rights Act, Civil Code section 51 _ The court sustained the entity defendants' demurrer without leave to amend on that basis. Plaintiffs opposition does not argue the second amended complaint states sufficient facts for a cause of action under the Unruh Civil Rights Act. Instead, she argues she can amend her complaint to state sufficient facts for a cause of action under Civil Code section 51 9, which is not part o...

Excerpt: ...t obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.” (CCP § 1032(a)(4).) “Trial courts determine who is the prevailing party based on an evaluation of whether a party prevailed on a practical level. Among the factors the trial court should consider is the extent to which each party has realized its litigation objectives.” (Regency Midland Construction, Inc. v. Legendary St...

Excerpt: ...x. B) and UCLA Procedure 620.1: Whistleblower Retaliation Complaints (RJN, Ex. C). These records are subject to judicial notice as regulations issued by a public entity under Evidence Code section 452(b) and as official government acts under section 452(c). (See Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 207 [“The Regents of the University of California have rulemaking and policymaking power, and their policies ...

Excerpt: ...ion Nos. 18, 22, 24, and 26 are sustained. Objection Nos. 1-17, 10-21, 23, 25, and 27-31 are overruled. Defendants make 30 objections to plaintiff's declaration. Objection Nos. 12, 13, 24, and 25 are sustained. Objection Nos. 1-11, 14-23, and 26-30 are overruled. Defendants make 19 objections to the declaration of Samuel Moorhead. All 19 objections are overruled. Legal Standard Summary judgment should be granted where no triable issues of fact ex...

Excerpt: ...ed to punitive damages where the facts alleged cannot support recovery of punitive damages under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) Conclusory allegations are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.) Plaintiff does not allege sufficient facts to constitute oppression, fraud, or malice. Plaintiff contends the first amended complaint meets the ...

Excerpt: ...ntiff bears the burden of introducing such evidence. (Ibid.) Plaintiff's only evidence of Hogg's financial condition is the declaration of counsel Christopehr Grivakes. He states: I conducted research into the assets of defendant Troy James Hogg in order to prove-up the reasonableness of the request for punitive damages. Based upon my research, I discovered that Mr. Hogg defrauded investors of $51,000,000 in connection with a cryptocurrency scam ...

Excerpt: ... Insurance Company moves to compel defendant Veronica Sims and Barry Reed to serve responses to demand for production of documents (set one). When a party fails to timely respond to demands for inspection, the requesting party may move for an order compelling responses. (2031.300(b).) Failure to timely respond waives any objections. (CCP § 2031.300(a).) Plaintiff served its demands for production of documents (set one) on defendants Sims and Ree...

Excerpt: ...Lana McLeod's declaration. Objection Nos. 1 and 4-7 are sustained. Objection Nos. 2 and 3 are overruled. Defendant makes 3 objections to plaintiff's Exhibit 1-A, the group text messages. Objection Nos. 2 and 3 are sustained. Objection No. 1 is overruled. Defendant makes 29 objections to plaintiff's deposition transcript. Objection Nos. 1, 2, 21, and 22 are sustained. Objection Nos. 3-20 and 23-29 are overruled. Defendant makes 2 objections to pla...

Excerpt: ...dicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Courts exercise their discretion “liberally to permit amendment,” and “[t]he policy favoring amendment 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.) Defendants Pacific Horizon H...

Excerpt: ...s process of hiring Weir and Brandt (Nos. 8-11) and defendant's internal evaluations of Weir and Brandt, including documents about their “departure from the firm” or “termination” (Nos. 28-34). Defendant responded only with objections. The documents plaintiff requests in Nos 8-11 are discoverable. Plaintiff's first amended complaint alleges, among other things, that defendant affirmatively misrepresented the firm's capabilities and expert...

Excerpt: ...ns to be heard on February 28 and served notice of the hearing date on plaintiff. There is no proof of service, however, of the notice of hearing date on defendant Precillia Diaz. “The general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party.” (McDonald v. Severy (1936) 6 Cal.2d 629, 631.) The parties to a civil action are entitled to written notice of hearing dates. (See Code Civ...

Excerpt: ... first named defendant, New Port@Beverly Hills, Inc. The court held a bench trial in July 2019. After trial, the court entered judgment for plaintiff against New Port@Beverly Hills, Inc. only, and in favor of the eight moving defendants. In November 2019, the court awarded defendants $239,962.50 in attorney fees. Plaintiff appealed the judgment. The Court of Appeal affirmed the judgment, with one exception—it reversed the judgment as to plainti...

Excerpt: ...t of time billed for each task was reasonable. (Baxter v. Bock (2016) 247 Cal.App.4th 775, 793.) The moving party has the burden of proof on these issues. (Ibid.) The number of hours billed may be unreasonable if the case is “overstaffed” with too many lawyers, resulting in redundant or unnecessary work. (Hensley v. Eckerhart (1983) 461 U.S. 424, 434). Nearly all of plaintiff's counsel's work was reasonable and necessary. After carefully revi...

Excerpt: ...e with the demand is incomplete,” “[a] representation of inability to comply is inadequate, incomplete, or evasive,” or “[a]n objection in the response is without merit or too general.” (CCP § 2031.310(a).) Request for production No. 23 demands: “All DOCUMENTS RELATING TO complaints YOU received from YOUR EMPLOYEES in the past ten (10) years that RELATE TO RETALIATION.” Pacifica responded with numerous objections, followed by: “N...

Excerpt: ...serving a represented party electronically, the serving party shall confirm by telephone or email the appropriate electronic service address for counsel being served.” That provision does not apply because this motion was not when defendant “first” served plaintiff electronically. When defendant opposed a prior motion by plaintiff, it served the opposition on plaintiff via that same email address. Moreover, all of plaintiff's papers, beginn...

Excerpt: ...ded cross-complaint alleges sufficient facts for this cause of action. “Every contract imposes on each party a duty of good faith and fair dealing in contract performance and enforcement such that neither party may do anything to deprive the other party of the benefits of the contract.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 76.) The implied covenant cannot, however, impose “substantive duties or limits beyond”...

Excerpt: ...ers that are just, including” imposing monetary, issue, evidence, or terminating sanctions. (CCP § 2030.290(c) [interrogatories]; § 2031.300(c) [requests for production].) Plaintiffs have now disobeyed multiple court orders compelling discovery. On September 30, 2022, the court granted defendant's motions to compel discovery and ordered plaintiffs Bill Starkov and Jessica Starkov to serve verified responses without objections to form interrog...

Excerpt: ...e court denied plaintiff's prior motion for attorney fees, the circumstances have changed. The court explained it denied that motion because other causes of action on the same contract had not been resolved. The court stated, “O'Gara is not currently the ‘party prevailing on the contract'—though it may be after trial.” (Oct. 10, 2022 Minute Order, p. 2.) “Because the second and fifth causes of action are ‘on the contract' and have not...

Excerpt: ...r agents, employees and anyone acting on her behalf or in concert with her, from harassing, attacking, striking, threatening, assaulting, destroying personal property, disturbing the peace of Plaintiff, from conducting surveillance of Plaintiff, from contacting, directly or indirectly, or taking any action against Plaintiff, to stay away at least 100 feet from the person, place of work and to vacate the residence of 6517 Whitworth Drive in Los An...

Excerpt: ...s unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965(c)(6).) This “exception to the mandatory award of litigation costs under section 1032, subdivision (b), implements a clear legislative goal of encouraging potentially meritorious FEHA suits.” (Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1062 (Roma...

Excerpt: ...See, e.g., Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 70.) Other cases hold, “A rescission is enforced by a civil action for relief based on rescission.” (Southern Ins. Co. v. Workers' Comp. Appeals Bd. (2017) 11 Cal.App.5th 961, 963–964; accord Civ. Code § 1692 [ “When a contract has been rescinded … any party to the contract may seek relief based upon such rescission by (a) bringing an action to recover any money or thing owi...