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 Code § 1692 [ “When a contract has been rescinded … any party to the contract may seek relief based upon such rescission by (a) bringing an action to recover any money or thing owi...

Excerpt: ...d. “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceedings.” (CCP § 1286.) Courts have limited authority to vacate an arbitration award. “A court's power to correct or vacate an erroneous arbitrati...

Excerpt: ... modify the subpoena duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production.” (CCP § 1985.3(g).) Wells Fargo's subpoena to Open Path Counseling Center specifies the date for production was September 30, 2022. (Olsen Decl., Ex. 4.) Plaintiff filed this motion on November 7, 2022. Plaintiff did not file any proof of service of the moving papers—not on defen...

Excerpt: ...e. “The general rule in California is that ‘[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person....' ” (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) “[I]n the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly suppor...

Excerpt: ...l agree to dismiss the remaining causes of action in the Complaint as a condition to the entry of summary judgment.” (Motion, p. 3.) A plaintiff moving for summary judgment must prove each element of each cause of action; once the plaintiff does so, the burden shifts to the defendant to show a triable issue of at least one material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The opposing defendants “shall set forth t...

Excerpt: ...e Court of Appeal has stated that if an “agreement to arbitrate simply authorized the defendant to make unilateral modifications, it would not be illusory under California law because the implied covenant of good faith and fair dealing would preclude any change that undermined the employee's rights.” (Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1474 (Peng).) “The implied covenant also prevents an employer from modifying an arbi...

Excerpt: ...spond to Special Interrogatories Plaintiff Above the Boulevard LLC moves to compel defendant Blossom.Space Inc. to respond to special interrogatories. When a party fails to timely respond to interrogatories, the propounding party may move for an order compelling responses. (CCP §§ 2030.290(b).) Failure to timely respond waives any objections to the interrogatories. (CCP §§ 2030.290(a).) Plaintiff served special interrogatories, set one, on Au...

Excerpt: ...ent's existence via admissible evidence. A motion to compel arbitration is “a summary proceeding.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057.) 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.” (Id. at p. 1060.) For this initial burden, “ ‘it is not necessary...

Excerpt: ... a reasonable interpretation by reading it as a whole and all its parts in their context” but do not “assume the truth of contentions, deductions, or conclusions of fact or law.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) Plaintiff's complaint alleges three causes of action: (1) conversion, (2) violation of Penal Code § 496, and (3) claim and delivery. All three causes of action arise from the allegation that...

Excerpt: ...erving 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, beginni...

Excerpt: ... award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceedings.” (CCP § 1286.) Courts have limited authority to vacate an arbitration award. “A court's power to correct or vacate an erroneous arbitration award is closely circumscribed.” (Heimlich v. Shivji (2019) 7 Cal.5th 350, 367.) “An arbitrator's...

Excerpt: ...a duces tecum. Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production.” (CCP § 1985.3(g).) Wells Fargo's subpoena to Open Path Counseling Center specifies the date for production was September 30, 2022. (Olsen Decl., Ex. 4.) Plaintiff filed this motion on November 7, 2022. Plaintiff did not file any proof of service of the moving papers—not on defendants, the deponent...

Excerpt: ... or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceedings.” (CCP § 1286.) Courts have limited authority to vacate an arbitration award. “A court's power to correct or vacate an erroneous arbitration award is closely...

Excerpt: ...her potential issues. WGA is attempting to enforce an arbitration clause in a collective bargaining agreement. “For disputes arising under collective bargaining agreements, there is a ‘presumption of arbitrability,' under which a court should order arbitration of a grievance ‘ “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” ' ” (City ...

Excerpt: ...ent's existence via admissible evidence. A motion to compel arbitration is “a summary proceeding.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057.) 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.” (Id. at p. 1060.) For this initial burden, “ ‘it is not necessary...

Excerpt: ... 11, 20, 29, 32, and 34 are sustained. Objection Nos. 1, 4-6, 8, 12-19, 21-28, 30, 31, 33, and 35-42 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 judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Villa v. McFerren (1995) 35 Cal.App.4th 733, 741.) A defendant moving for summary judgment must show “that one o...

Excerpt: ... inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) “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.) Defendants meet their burden of showing the default against them resulted from mistake, inadvertence, surprise, or excusable neglect. The clerk entered their d...

Excerpt: ...show a triable issue of at least one material fact. (Aguilar v. 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 § 437c(p)(1).) Triable Issues of Material Fact Plaintiff alleges three causes of action: (1) public nuisance, (2) narcotics abatement, and (3) unfair competition....

Excerpt: ...ealed 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, 138...

Excerpt: ..., or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP § 2025.480(a).) Testimony about other employees Plaintiff moves to compel Thana, Inc. to answer the following question: “So who were the co-workers of plaintiff during the time he worked for Douglas burgers?” Defense coun...

Excerpt: ...premises. (Demurrer, pp. 3-4; RJN, Ex. 1.) Selling the premises does not mean plaintiff lacks standing to sue under the lease for debts incurred before the sale. “A transferor of an interest in the leased property retains the benefit of an express promissory obligation under the lease, which benefit he held before the transfer, to the extent the benefit is not assigned by the transferor and does not run with the transferred interest.” (Rest.2...

Excerpt: ...erve responses to form interrogatories – general, set one, special interrogatories, set one, and requests for production, set one. When a party fails to timely respond to interrogatories or demands for inspection, the requesting party may move for an order compelling responses. (CCP §§ 2030.290(b) [interrogatories]; 2031.300(b) [demands for inspection].) Failure to timely respond waives any objections. (CCP §§ 2030.290(a); 2031.300(a).) It ...

Excerpt: ...er Compelling Responses When the responding party fails to timely respond to interrogatories or requests for production, the requesting party may move for an order compelling responses. (CCP §§ 2030.290(b) [interrogatories]; 2031.300(b) [request for production].) Failing to timely respond waives any objections. (CCP §§ 2030.290(a); 2031.300(a).) Plaintiff served the discovery requests on defendants 5 Star K-9 Academy, Inc. and Ekaterina Korot...

Excerpt: ...ary sanctions and ending with the ultimate sanction of termination.” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) “[A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.” (Ibid .) Terminating sanctions are “ ‘ordinarily a drasti...

Excerpt: ...close the fact to plaintiff; (3) defendant intentionally omitted or concealed 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 (Boschma).) Generally, “[e]very element of the cause of action for fraud must be alleged in the proper m...

Excerpt: ...urs to cross-complainant Rumina Balasanyan's first amended cross-complaint based on the doctrine of res judicata. “Res judicata or claim preclusion precludes the relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them. [Citation.] Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on th...

Excerpt: ...nder this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceedings.” (CCP § 1286.) Courts have limited authority to vacate an arbitration award. “A court's power to correct or vacate an erroneous arbitration award is closely circumscribed...

Excerpt: ...Rose was “the majority shareholder” (¶ 42). Defendant Paul Payne III is a certified public accountant. (Comp., ¶ 4.) In a scheme to take plaintiffs' shares in the corporation, Rose hired Payne to falsify the corporation's 2021 tax return. (¶¶ 14-17.) Plaintiffs allege that, based on over a decade of Century Rooter and Jetting Service, Inc.'s prior tax returns, Payne knew they each owned 24.5%. (¶ 15.) Payne, however, prepared a tax retur...

Excerpt: ...d confer as required before filing this motion. “A determination of whether an attempt at informal resolution is adequate … involves the exercise of discretion.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) Plaintiff made an adequate attempt to meet and confer. Though plaintiff filed these motions shortly after counsel agreed to hold a phone call two days later, plaintiff had to do so to provide timely notice of the motions b...

Excerpt: ...cial 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.) Cross-defendants Nile Niami an...

Excerpt: ... filed this action, a petition for writ of mandate to compel inspection of books, in June 2020. Respondents moved to compel arbitration, and the court ordered the parties to arbitrate this dispute. On May 13, 2022, the arbitrator issued an award of $90,600.22 for petitioner for “Attorneys' Fees of $78,907.50” as set forth in two orders granting attorney fees and costs (Levinson Decl. ISO Petition to Confirm Arbitration Award, Ex. B, Final Awa...

Excerpt: ...of compliance 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).) Plaintiff made objections that were too general. His response began with numerous “general objections,” which are improper. Plaintiff also made meritless objections. To nearly all requests, plaintiff responded only, ...

Excerpt: ...e via admissible evidence. A motion to compel arbitration is “a summary proceeding.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1057 (Espejo).) 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.” (Id. at p. 1060.) For this initial burden, “ ‘it is not necessary to f...

Excerpt: ...applies for a fourth order: to proceed with this action under a fictitious name. 1. 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).) Section 340.1, subdivision (i) provides that the court must review the certificates of merit in camera. (See also Cal. Rules of Court, ru...

Excerpt: ...ll not find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses.” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1203 (St. Agnes.)) That rule does not apply. “[W]here the FAA applies, whether a party has waived a right to arbitrate is a matter of federal, not state, law.” (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 300 Cal.Rptr.3d 787, 793 (Davis...

Excerpt: ...cross-complaint would allege compulsory-crossclaims against plaintiff American Honda Financing Corporation. When a party fails to timely bring compulsory crossclaims, “whether through oversight, inadvertence, mistake, neglect, or other cause,” the court may grant leave to file a cross-complaint “at any time during the course of the action” so long as the moving party “acted in good faith.” (CCP § 426.50.) This provision is “liberal...

Excerpt: ...l California, Inc. (2010) 191 Cal.App.4th 53, 64.) An insurer's breach of the implied covenant of good faith and fair dealing does not, on its own, suffice for punitive damages. (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1080.) The plaintiff must still meet the standards of pleading and proof under Civil Code section 3294. Plaintiff alleges sufficient facts to constitute malice. “ ‘Malice' means conduct which is intended by the...

Excerpt: ...ties Ltd., LLC (2015) 235 Cal.App.4th 165, 185.) “Procedural unconscionability focuses on the elements of oppression and surprise.” (Id. at p. 177.) “Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create overly harsh or one-sided results. (Ibid., internal quotes omitted.) Procedural Unconscionability For procedural unconscionability, “[t]he pertinent question … is whether circumstan...

Excerpt: ...oundation Hospitals demur to plaintiff's second cause of action for fraud. After defendants filed this demurrer, the parties stipulated to dismiss the action as to defendants Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals. A. Defendant Linda Gutierrez Plaintiff fails to allege sufficient facts for any cause of action against Gutierrez. The first amended complaint does not even purport to allege a cause of action against her. ...

Excerpt: ...on Service, LP demur to the third amended complaint by plaintiff John Doe. The court's ruling addresses them jointly because they rely on common arguments. Summary of Allegations The third amended complaint alleges 14 causes of action against all seven named defendants, all arising from the same repeated factual allegations: The acts of discrimination and harassment that DEFENDANTS, Does Nos [1-20, 21-40, etc.] incited, aided, abetted, agreed to ...

Excerpt: ...moves to compel cross-complainants TFCF Latin American Channel LLC and Fox Sports Mexico Distribution LLC to produce additional documents in response to requests for production Nos. 1-13 propounded to them. (Code Civ. Proc., § 2031.320.) Further Responses to Nos. 15 and 18 Defendants Disney and TFCF responded to request Nos. 15 and 18 with objections only. No. 15 asked for: “All DOCUMENTS and COMMUNICATIONS RELATING TO the work, tasks, retenti...

Excerpt: ...e that plaintiff entered the arbitration agreement. The moving party can meet its ultimate burden of the preponderance of the evidence by showing the “security precautions regarding transmission and use of an applicant's unique username and password, as well as the steps an applicant would have to take to place his or her name on the signature line.” (Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1062 (Es...

Excerpt: ...timely application.” (CCP § 387(d)(1) & (2).) To determine timeliness, the court must examine “the totality of the circumstances” with a “focus on three primary factors: (1) the stage of the proceedings in which an applicant seeks to intervene; (2) prejudice to other parties; and (3) the reason for the delay.” (Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 574 (Crestwood).) “ ‘[P]rejudice to existing parties ...

Excerpt: ... waiver, courts will not find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses.” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1203 (St. Agnes.)) That rule does not apply. “[W]here the FAA applies, whether a party has waived a right to arbitrate is a matter of federal, not state, law.” (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 2022 WL 16546...

Excerpt: ...n opposes these motions on the grounds that this case is stayed. Davidson is right. In the related case, David Abbasi v. Jerry Davidson, et al., No. 22STCV18567, Abbasi moved to stay this unlawful detainer action. On August 22, 2022, the court granted Abbasi's motion. The court adopted its tentative ruling, which stated, “The court hereby stays the unlawful detainer action, Jerry Davidson v. Wesley Fisher, et al., No. 22CHUD00349. The non-jury ...

Excerpt: ...sia Holdings, LLC, Future Land, Ltd., and Tower Goal, Ltd. Plaintiff Donoco Investments, LLC moves to compel further responses by defendants International Asia Holdings, LLC, Future Land, Ltd., and Tower Goal, Ltd. to form interrogatories, set one, Nos. 12.1-12.7 and 15.1. A party may move to compel further responses to interrogatories when an answer “is evasive or incomplete” (CCP § 2030.300(a)(1) or an objection “is without merit or too ...

Excerpt: ... production, but each party still seeks sanctions against the other. In Action Realtors moves for $5,145 in sanctions against Lazar and his counsel. Lazar seeks $3,600 in sanctions against In Action Realtors and its counsel. The court declines to impose sanctions against either party. Both In Action Realtors and Lazar acted, in part, with substantial justification. In Action Realtors was justified in moving to compel further responses to some of ...

Excerpt: ...ly is inadequate, incomplete, or evasive,” or “[a]n objection in the response is without merit or too general.” (CCP § 2031.310(a).) Meet and Confer Defendant Ford Motor Company contends plaintiffs failed to meet and confer in good faith as required before filing this motion. Plaintiffs sent a detailed meet and confer letter. (Cohen Decl., ¶¶ 12-14, Ex. 6.) Defendant replied, but plaintiffs did not substantively respond before filing thi...