Excerpt: ...rd was defendant Eilish Melick. (FAC, p. 1.) It refers to Johnson as “ ‘Landlord Representative' or ‘Power of Attorney (POA)'.” (Ibid.) The first amended complaint alleges no affirmative acts by Johnson other than that she “engaged in” a residential lease with plaintiff. (FAC, ¶ 11.) It repeatedly alleges “Landlord or the POA failed to” do various things regarding the premises. (FAC, ¶¶ 15, 16, 60, 84.) Attached to the first am...

Excerpt: ...t Medical Care makes three objections to Cynosure's evidence. All three objections are overruled. The Contract Does Not Bind Tarzana Cynosure cannot rely on the forum-selection clause to dismiss Tarzana's crossclaims because Tarzana is not a party to the contract. An essential element of the existence of a contract is the mutual consent of the parties. (1 Witkin, Summary of Cal. Law (11th ed. 2017) Contracts, § 116, p. 157; Civ. Code, § 1550.) ...

Excerpt: ...tained a judgment of $41,855.72 against defendant ICI Architectural Millwork, Inc. and Izhak Korin and is therefore the prevailing party. Plaintiff is entitled to recover reasonable attorney fees as costs. Attorney fees are allowable as costs when authorized by contract, statute, or law. (CCP § 1033.5(a)(10).) Plaintiff successfully brought several causes of action under the Labor Code for which he can recover attorney fees. (Lab. Code, §§ 218...

Excerpt: ... on the cross-complaint by Susana Torres and Jorge Torres against plaintiff/cross-defendant Victor Alarcon. (The second and fourth causes of action were resolved on demurrer, so these three proposed phases would include all pending causes of action.) Code of Civil Procedure section 598 gives courts discretion to choose to try some issues before others “when the convenience of witnesses, the ends of justice, or the economy and efficiency of hand...

Excerpt: ... petition arise from an attorney fee dispute between defendants and plaintiff Glaser Weil Fink Howard Avchen & Shapiro LLP (Glaser Weil). The parties first arbitrated the dispute. In June 2021, the arbitrator issued an award in favor of the Brius entities and Rechnitz. In July 2021, Glaser Weir filed this action against defendants rejecting the fee award and alleging five causes of action seeking damages for the allegedly unpaid fees. The Brius e...

Excerpt: ...t and fifth causes of action. That order was made by a different judge, Judge Douglas W. Stern. “A trial court's discretion to reconsider another judge's prior ruling is necessarily narrow and usually only appropriate when the prior judge is unavailable.” (In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1247.) Plaintiff fails to show Judge Stern is not available or any other basis that would permit this court to reconsider Judge Stern...

Excerpt: ... order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Evidentiary Objections Defendant makes six objections to the declaration of Mark Falkenhagen. All six objections are overruled. Tax Returns and Information After 2017 Defendant shows good cause to limit plaintiff's discovery as to two items. First, defendant shows good cause to prohibit disclosure of its tax returns. There ...

Excerpt: ...2002) 29 Cal.4th 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 lega...

Excerpt: ... lodestar, that is, “the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) For attorney Ben Gharagozli, defendant incurred 66.25 hours of fees at $450 hourly. (Gharagozli Decl., ¶¶ 4, 9.) For attorney Kevin Hermansen, defendant incurred 59.1 hours of fees at $450 hourly. (Hermansen Decl., ¶¶ 6, 16.) Hours In calculating the lodestar, the court must determin...

Excerpt: ...anuary 30, 2023, and the trial is set for February 15, 2023. Judge Tamzarian will preside over the trial and therefore should decide this motion. Defendant's motion to sever trial is hereby continued to December 15, 2022, at 9:00 a.m. 2. Defendant/Cross‐Complainant Starr Indemnity and Liability Company's Motion to Strike Zoriall, LLC's First Amended Complaint and Answer to First Amended Cross‐Complaint and for Entry of Default Defendant/cross...

Excerpt: ...tection and Innovation (DFPI) stating that regulations implementing “commercial financing disclosures SB 1235” will be effective on December 9, 2022. This document is subject to judicial notice as a regulation enacted by a public entity (Evid. Code, § 452(b)) and as an official act of the government (Evid. Code, § 452(c)). Second, plaintiff requests judicial notice of its California Finance Lenders Licenses issued by State of California's D...

Excerpt: .... (Code Civ. Proc., § 418.10(a)(1).) Defendant's motion to quash the complaint does not argue or establish that the court lacks jurisdiction over him for any reason. Instead, it argues over the merits of plaintiff's complaint. That is not a valid basis to quash service of summons. Demurrer A demurrer is an objection to a complaint on one of several specified reasons. (Code Civ. Proc., § 430.10.) Each basis requires defendant to show that, even ...

Excerpt: ...ons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto. Ultimately, disqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility. The paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of ...

Excerpt: ...ove for protective orders precluding plaintiffs from taking their depositions. Defendants argue both Johnston and Adelsberg are “apex witnesses” who cannot be deposed unless plaintiffs show good cause. “[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, and that official moves for a protective order to prohibit the deposition, the trial court should first determine whethe...

Excerpt: ... of action for negligence. “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349 (El Escorial).) “ ‘A nuisance in many, if not in most, instances, especially with respect to buildings or premises, presupposes negligence.' ” (Ibid.) A complaint does not state a separate c...

Excerpt: ...had a duty to disclose 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.) First, plaintiff alleges GM omitted or concealed a material fact. “GM was well aware ...

Excerpt: ...ving up our right to a civil court trial or jury trial for any claim, dispute or controversy arising out of or relating to my employment with the Company, except as otherwise set forth in this Agreement.” (Thorpe Decl., Ex. A, p. 1.) It further provides that the parties “mutually consent to the resolution by arbitration of all claims, disputes, or controversies … past, present or future, whether or not arising out of my employment (or its t...

Excerpt: ...ded complaint by plaintiff John Doe. On October 26, 2022, defendant Universal Protection Service, LP d/b/a Allied Universal Security Services also filed a demurrer and motion to strike portions of the third amended complaint. Its demurrer and motion to strike will be heard on December 9, 2022. The court finds it appropriate to continue the three present hearings so that all demurrers and motions to strike portions of the third amended complaint c...

Excerpt: ... leave to amend his pleading, or to file a cross- complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of ca...

Excerpt: ...supplemental responses. Form Interrogatories Plaintiff moves to compel further responses to form interrogatories – general, Nos. 15.1 and 17.1. A party propounding interrogatories may move to compel further responses when an answer “is evasive or incomplete” or “[a]n objection to an interrogatory is without merit or too general.” (CCP § 2030.300(a).) No 15.1 asked Montano to identify each denial or affirmative defense in his answer and...

Excerpt: ...d by the clerk of the court (CCP § 2020.210(a)) or “an attorney of record for any party” (CCP § 2020.210(b)). The subpoena is signed by plaintiff herself, not the clerk of court or an attorney of record. (Lewiston Decl., Ex. A, p. 1.) Second, the subpoena was improperly directed to defendants CB Chicago, Kamyar Mateen, and Shervin Mateen. (Lewiston Decl., Ex. A, p. 1.) A deposition subpoena “may be used to obtain discovery within the stat...

Excerpt: ...gum, Esq. for malicious prosecution. This is the latest in a series of lawsuits. In 2016, Mayorga sued Fancher in case No. BC643234. Mayorga is a member of the band Suicidal Tendencies. Lisa Fancher (doing business as Frontier Records and American Lesion Music) published the band's self-titled album in 1983. Mayorga sued Fancher for withholding royalties from him. Ackerman and Bjorgum represented Fancher in the first case. (This complaint incorre...

Excerpt: ...rian Lugo M.D. Corporation, provided medical services to defendant Erik Zepeda Castaneda. Defendant owes a balance of $50,390.82, plus 10% interest. Prior Hearings: The court held hearings on this on July 18 and August 29, 2022. Plaintiff had not submitted a default judgment application before either of those hearings. Plaintiff submitted the documents on October 12. Analysis & Checklist: Quiet Title Actions require oral prove‐up hearing. (CCP ...

Excerpt: ...0 Labor Code violations, unfair competition, and PAGA civil penalties. Plaintiff worked for defendant from 2017 to 2020. (Job not specified.) The complaint also purports to be a class action. The class or group of aggrieved employees is all current and former non-exempt California employees. Motion Plaintiff seeks an order granting preliminary approval of: 1) Conditional certification of the class of hourly employees from 8/4/2020 to the present ...

Excerpt: ...ability and (2) breach of express warranty. Plaintiff alleges his new 2018 Range Rover was defective because its infotainment system did not work. Motion Plaintiff moves for $36,958.05 in attorney fees after settlement. Plaintiff incurred $27,635 in fees and $2,105.15 in costs, and anticipates another $2,700 in fees and $29.15 in costs for the reply. Plaintiff moves for an enhancement multiplier of 0.25. Opposition Plaintiff seeks excessive hours...

Excerpt: ...her, Emmanuel Richardson. Doe 1 (LA County) was responsible for plaintiff and put her in Richardson's care in 1978. The County did not adequately protect her. Application Under CCP § 340.1, the court should issue an order sealing the certificates of merit, permitting service on Doe 1, and permitting plaintiff to file an amended complaint identifying the defendants. The usual rule on sealing, CRC 2.550 does not apply. Plaintiff's conditionally se...

Excerpt: ...omplaint against defendants Signal Hill Pet Hospital, Mirette Attalla, and Ragi Boctor for 15 causes of action, including sexual assault, FEHA claims, Labor Code claims, and unfair competition. Plaintiff worked as an office manager at Signal Hill Pet Hospital. Attalla and Boctor own the pet hospital. Attalla sexually assaulted plaintiff numerous times by touching her breasts and sitting on her lap. Plaintiff complained to Boctor, and he refused t...

Excerpt: ...her Emmanuel Richardson and foster mother Willie Mae Richardson. In a second foster home, she was sexually assaulted by foster mother Marie Anderson. Doe 1 (LA County) was responsible for plaintiff and put her in both foster homes. The County did not protect her. Application Under CCP § 340.1, the court should issue an order sealing the certificates of merit, permitting service on Doe 1, and permitting plaintiff to file an amended complaint iden...

Excerpt: ... Failure to Provide Itemized Wage and Hour Statements (5) Private Attorneys General Act (6) Unfair Competition Plaintiff has worked as a packer for defendants since May 2016. For eight months each year, he worked six days per week for 12 hours per day without getting adequate overtime pay. Defendants improperly calculated overtime for employees by counting each pay period as beginning a new workweek instead of including all hours per true workwee...

Excerpt: ...annot exceed that demanded in the complaint… or in the statement [of punitive damages] provided for by Section 425.115.” (CCP § 580(a).) “A default judgment greater than the amount specifically demanded in the complaint is void as beyond the court's jurisdiction.” (Airs Aromatics, LLC v. CBL Data Recovery Technologies, Inc. (2018) 23 Cal.App.5th 1013, 1018.) “Where no amount of damages is demanded any amount awarded is by definition gr...

Excerpt: ...ur to the first cause of action for violation of Civil Code § 2923.5, pre-default notice requirements; second cause of action for violation of Civil Code § 2923.6(c), dual tracking; and fourth cause of action for violation of Civil Code § 2924.9, post-default notice requirements on the same grounds: the second amended complaint alleges defendants recorded a notice of default and notice of trustee's sale that has nothing to do with plaintiffs. ...

Excerpt: ...alco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 185 (Serafin).) A. Procedural Unconscionability Procedural unconscionability focuses on “ ‘oppression' or ‘surprise' due to unequal bargaining power.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz).) “Procedural unconscionability occurs when the stronger party drafts the contract and presents it to the weaker party on a ‘take it or ...

Excerpt: ...er cannot circumvent prior admissions by the easy device of amending a pleading without explanation.” (Womack v. Lovell (2015) 237 Cal.App.4th 772, 787.) The “doctrine ‘cannot be mechanically applied.' ” [Citation.] It ‘is not intended to prevent honest complainants from correcting erroneous allegations or prevent the correction of ambiguous facts.' ” (JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 690.) The sham pleadin...

Excerpt: ...ation 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 moving defendant can establish “that a cause of action has no merit if the party has shown that one or more elements… cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) Defendants meet their burden of proving plaintiff cannot est...

Excerpt: ...y, including the department, reasonable attorney's fees.” (Gov. Code, § 12965(c)(6).) Plaintiff is not entitled to attorney fees at this stage. She may later become the prevailing party, but for now she seeks interim fees based solely on her successful appeal. “Because FEHA does not define the term prevailing party, prevailing party status is determined in this context based on an evaluation of whether a party prevailed on a practical level....

Excerpt: ...quests judicial notice of three exhibits. All three exhibits are court records subject to judicial notice under Evidence Code § 452(d)(1). They involve the small claims actions previously filed discussed below. The requests for judicial notice are granted. The Small Claims Case On April 9, 2021 Defendant Balasanyan filed a small claims lawsuit against Plaintiff LA Solar Group, Inc. (Case No. 21PDSC00689.) (RJN 1.) She claimed that “Defendant o...

Excerpt: ... to testify and produce documents if it failed to do so without having served a valid objection. (CCP § 2025.450(a).) Defendants concede they did not attend their depositions as noticed, though Murtaza and Applied Biomedical testified at deposition on September 12—nearly six weeks after plaintiff filed this motion. (Horton Decl., ¶ 4.) Plaintiff still seeks to complete their depositions. (Reply, p. 3.) Defense counsel states, “For a signifi...

Excerpt: ...sts for production, and requests for admission. 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).) There is no such motion for requests for admission. Instead, the Discovery Act provides ...

Excerpt: ...Bo Fleming to respond to special interrogatories, set one; form interrogatories – general, 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...

Excerpt: ...r v. Lightstorm Entertainment, Inc. (2016) 246 Cal.App.4th 1064, 1079.) The third amended complaint alleges promissory fraud, which requires “(1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060 (Beckwith).)...

Excerpt: ...cial notice of four documents. Exhibits A through C are court records. Under Evidence Code section 452, subdivision (d)(1), the records are subject to judicial notice of their existence, contents, and legal effects, but not the truth of statements made therein. Exhibit D, plaintiff's administrative complaint filed with the Department of Fair Employment and Housing is an official act of the executive branch of the State of California subject to ju...

Excerpt: ...missed from this action. The motion is therefore moot as to the seventh cause of action. Plaintiff fails to allege sufficient facts for his sixth cause of action for fraudulent concealment. This cause of action requires that: (1) defendant omitted or concealed a material fact; (2) defendant had a duty to disclose the fact to plaintiff; (3) defendant intentionally omitted or concealed the fact with intent to defraud plaintiff; (4) plaintiff must h...

Excerpt: ...iff argues she never agreed to arbitration because she never received the Employment Dispute Resolution booklet. Even if plaintiff never received the booklet, she agreed to it by communicating her consent to defendant. “Contract formation is governed by objective manifestations, not the subjective intent of any individual involved. The test is what the outward manifestations of consent would lead a reasonable person to believe. ” ( Allen v. S...

Excerpt: ...ry Objections Plaintiff makes six objections to defendants' evidence. All six objections are overruled. Existence of Agreement First, plaintiff denies signing the arbitration agreement. The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (CCP § 1281.2.) It can meet the “initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purpor...

Excerpt: ...t. Plaintiff also moves 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. Ru...

Excerpt: ... 4 is overruled. Enforceability First, defendant argues the agreement is unenforceable because it requires the parties to split the costs of arbitration. “[W]ith respect to arbitration of statutory claims, the employee cannot be required ‘to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court.' [Fn.] This means ‘the employer [must] pay all types of costs that are uniqu...

Excerpt: ... Preliminary Injunction “In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated' factors: (1) the likelihood that the 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 issu...

Excerpt: ...the Franchise Tax Board may not prosecute or defend an action. (Cal‐Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 310.) Suspension R&H is currently suspended. R&H's counsel states the company “regained good standing with the California Secretary of State in late July 2022” (McCreary Decl., ¶ 4) and “was informed that it was back in good standing” on July 16, 2022 (Id., ¶ 5). Plaintiff rebuts thos...

Excerpt: ...ss Plaintiff contends this demurrer is untimely. It was timely filed on July 22, 2022. A demurrer must be filed “within 30 days after service of the complaint.” (CCP § 430.40(a).) As for defendant Shervin Mateen, plaintiff filed proof of service showing substituted service on June 21, 2022, with mailing on June 22. Substituted service “is deemed complete on the 10th day after the mailing.” (CCP § 415.20(b).) Shervin Mateen's 30-day dead...

Excerpt: ...tatute of frauds bars this cause of action. “An agreement authorizing or employing an agent, broker, or any other person to purchase or sell real estate … or to procure, introduce, or find a purchaser or seller of real estate… for compensation or a commission” must be “in writing and subscribed by the party to be charged or by the party's agent.” (Civ. Code, § 1624(a)(4).) “The procurement of a purchaser is not such performance as ...