Excerpt: ...y receive rent from them. (See Opp. at p. 2 and attached 2/25/20 Santillanes decl. at p. 6:15-24, Exs. 3- 5; Singh decl. ¶¶ 3-6, 7a-7c & Exs. 2, 6; RFJN Exs. 1-3.) Plaintiffs have also shown they need this order to prevent defendant from disposing of the properties or interfering with the assignment. The record shows defendant is unreasonably thwarting collection. Except as otherwise stated above, the court finds the 2/25/20 Santillanes declara...

Excerpt: ...ficient to constitute a cause of action (CCP § 430.10(e)) and they are each uncertain, ambiguous, and unintelligible (CCP § 430.10(f)). A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegati...

Excerpt: ...e explained…”); accord Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 302.) Under CCP § 340.5, a shorter one-year statute of limitations applies to bring an action for injury against a health care provider based on professional negligence. In laymen's terms, a plaintiff discovers a cause of action when he reasonably should suspect that “someone has done something wrong' to him [citation], ‘wrong' being used, not in any technical sense, bu...

Excerpt: ...§ 430.10(e). A) COA #2 – Accounting “An action for an accounting may be brought to compel the defendant to account to the plaintiff for money or [] property (1) where a fiduciary relationship exists between the parties, or (2) where, even though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable. [Citation omitted.] “A cause of action for an accounting requ...

Excerpt: ... Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 877; Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 794.) The issue is whether these facts constitute a prima facie case or defense as a matter of law. (Moore v. San Francisco (1970) 5 Cal.App.3d 728, 733; Fountain Valley Chateau Blanc Homeowner's Ass'n v. Department of Veterans Affairs (1998) 67 C...

Excerpt: ...ely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (See Day v. Sharp (1975) 50 Cal.3d 904, 914...

Excerpt: ... judgment in California under the Sister State Judgment Act (the “Act”) , or maintain an action in equity to enforce the out of state judgment. (See Code Civ. Proc. § 1913; Conseco Marketing, LLC v. IFA & Ins. Services, Inc. (2013) 221 Cal.App.4th 831, 838). The out of state judgment Plaintiff seeks to enforce in the 2 nd, 3 rd, and 4 th Causes of Action is against Thomas w. Price and Hyun J. Um, not the named Defendant Equity Funding, LLC o...

Excerpt: ...te permitted by the court, the untimely amendment is subject to a motion to strike. (Cal. Rules of Ct., Rule 3.1320.) Statute of Limitations A three-year statute of limitation applies to fraud claims. (Code Civ. Proc., § 338, subd. (d).) Where, as here, the running of the statute clearly and affirmatively appears from the dates alleged in the SAC, the Plaintiffs bear the burden of pleading and proving they did not discover, or have reason to dis...

Excerpt: ...ion of emotional distress (“NIED”) is sustained without leave to amend. Defendant Bhumy Dave Heliker's demurrer to Plaintiff's third cause of action for IIED is sustained with 15 days leave to amend. Heliker's demurrer to the fourth cause of action for NIED is sustained without leave to amend. Third Cause of Action for IIED “A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous...

Excerpt: ...dered Defendant's reply to the opposition. On March 3, 2020, Plaintiff filed a document entitled “Plaintiff's Reply to Defendant's Reply.” Plaintiff did not obtain prior leave of Court to file this document. Accordingly, the Court did not consider this document. In ruling on a demurrer or motion for judgment on the pleadings, the trial court examines the pleading to determine whether it alleges facts sufficient to state a cause of action unde...

Excerpt: ...ice of the moving papers to be filed no later than five court days before the time appointed for the hearing. On March 2, 2020, Plaintiff filed a document entitled “Plaintiff's Response to Defendant FCA US LLC's Opposition to Plaintiff's Motion to Amend Complaint to Reinstate Punitive Damages.” To the extent Plaintiff intended for this document to be considered a reply, it was untimely filed and served. (Code Civ. Proc., § 1005, subd. (b).) ...

Excerpt: ...ces as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.” There are two types of cross-complaints: compulsory cross-complaints and permissive cross-complaints. A compulsory cross-complaint is a cross-complaint that is asserted against the plaintiff and related to the subject matter of the complaint. (Code Civ. Proc., § 426.30.) A cross-...

Excerpt: ...papers, including the Notice of Settlement (Class Notice). Plaintiff must provide this court with a copy of the written notice he sent to the LWDA of the specific provisions of the Labor Code and IWC Wage Orders alleged to have been violated, so that the court can determine if the settlement is consistent with the letter. The motion fails to provide the class members and aggrieved employees' estimated individual recovery under the proposed settle...

Excerpt: ...substantial compliance with the response obligations set forth in 2030.210-2030.240. Further, Defendant has made a showing that the failure to respond was due to mistake, inadvertence, and excusable neglect arising from the health issues of former counsel, Concolino. (See Decl., ¶¶ 1-8; Crumpton Decl., ¶¶ 1-6.) Motion No. 2: The Motion by Plaintiff Eric J. Hardeman to Compel Responses to Request for Production of Documents by Defendant Rock A...

Excerpt: ...ight to foreclose. Based upon the current state of law on this issue, plaintiffs (as strangers to the subject mortgage loan, much less borrowers) lack standing to challenge the assignment of the subject Deed of Trust. (See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23). Unlike the plaintiffs in Yvanova v. New Century Mortgage Corp. (2015) 62 Cal.4 th 919; and Glaski v. Bank of America (2013) 218 Cal.App.4th 10...

Excerpt: ...aintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder ...

Excerpt: ... occur prior to filing the demurrer. Both parties ask the court to take judicial notice of documents relating to the parties' arbitration before the American Arbitration Association (“AAA”). The requests for judicial notice are important because under Code of Civil Procedure §430.30(a), on demurrer, the court may only consider matters appearing on the face of the pleading, or from any judicially noticeable information. It is notable that, wh...

Excerpt: ...terials Co. (1981) 123 Cal.App.3d 593, 604.) Plaintiff can avoid the effect of earlier admissions by including in the complaint a satisfactory explanation why the earlier admissions are incorrect. Absent such explanation, however, the self-destructive allegations in the earlier pleading or discovery response are “read into” the complaint, and allegations inconsistent therewith treated as sham and disregarded. (Owens v. Kings Supermarket (1988...

Excerpt: ..., “[f]acts, not conclusions, must be pleaded.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410; WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151 (“Because only factual allegations are considered on demurrer, we must disregard any ‘contentions, deductions or conclusions of fact or law alleged....'”).) Here, Plaintiff makes conclusory allegations that Plaintiff i...

Excerpt: ...e Demurrer is SUSTAINED as to each of those three COAs. COA 1: COA 1 asserts a claim for Dependent Adult Neglect under Welfare and Institutions Code § 15600 et seq. The elements of such a claim include denial or withholding of goods or services necessary to meet the individual's basic needs. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 406-07.) The facts constituting the neglect and establishing the causal link to...

Excerpt: ...tract claims and only by a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.” Hsu v. Abbara (1995) 9 Cal.4th 863, 876. Other noncontract claims joined in the action are disregarded: “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” Civ. Code § 1717(b) & (c); Santisas v. Goodin (1998) 17 Cal.4th 599, 615; see also Civ...

Excerpt: ...on, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding.” Intervention is mandatory (as of right) or permissive. Here, Makena is moving for a permissive intervention. Permissive intervention applies where: (1) the intervenor has a direct interest in the litigation; (2) intervention will not enlarge the issues raised by the...

Excerpt: ...igence. Dr. Azzam and Dr. Gaw each move for summary judgment in their favor and against plaintiffs Carlos Lustre and Dorothy Lustre as to both causes of action. Dr. Yip moves for summary judgment, or in the alternative, summary adjudication in his favor and against plaintiffs Carlos Lustre and Dorothy Lustre as to both causes of action. The elements of a medical negligence cause of action are: (1) duty of professional to use such skill, prudence,...

Excerpt: ...are therefore MOOT, and thus, does not address any issues for adjudication concerning these defendants. (Opposition, 2:2-7.) A Request for Dismissal without prejudice was entered on 2/24/20, as to these defendants. Accordingly, the Court dismisses SCD Holdings, LLC, Payman Rashtchi, and Arman Rashtchi, and all causes of action asserted as against these defendants. The motion that remains is Defendant Super Color Digital, LLC's Motion for Summary ...

Excerpt: ...t Rules 2.550-2.551 apply to records sealed or proposed to be sealed by court order; and that these rules do not apply to records that are required to be kept confidential by law. Penal Code § 851.8(a) provides that if the court finds that the petitioner is factually innocent of the crimes charged, the law enforcement agency must, with the district attorney's concurrence, seal both the records and the petition to seal the records. The records mu...

Excerpt: ...f exclusive concurrent jurisdiction, ‘when two [California] superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4 th 760, ...

Excerpt: ...nderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Sup. Ct. (1988) 206 Cal.App.3d 1222, 1232.) Due process permits state courts to exercise personal jurisdiction over nonresidents who have “minimum contacts” with the forum state. “Minimum contacts” means the relationship between the nonresident and the forum state is such that the exercise of jurisdiction does not offend “traditional notio...

Excerpt: ...ey fees based on the nonpayment of wages. The jury in this case awarded Palo $4,352.00 for misappropriation. The jury separately awarded Cannivet $355,455.00 as damages for the two cross-claims resolved in his favor: breach of contract and quantum meruit. The jury did not distinguish between the two, presumably concluding that whether it was based on a clear contractual obligation or a reasonable totality of the circumstances, Cannivet was entitl...

Excerpt: ... to notice these omissions and did anything about it and what was a junior lien became a senior lien that a subsequent foreclosure didn't extinguish. Before the Court this day is defendant Escrow Legends' (hereinafter ELI) motion to set aside and vacate a default judgment recently entered against it. On 04/27/17, plaintiff filed her Second Amended Complaint. While there were no charging allegations directed at ELI, as a “doe” defendant ELI wa...

Excerpt: ...endants contend that the bankruptcy stay that is in place should be extended to them because of the nature of plaintiff's claims and their relationship to South Coast Behavioral Health, Inc. Plaintiff opposes the motion. Both sides cite numerous federal cases discussing the scope of the bankruptcy stay. These cases make it clear that, ordinarily, “unless the assets of the bankrupt estate are at stake, the automatic stay does not extend to actio...

Excerpt: ...ode §12900, et seq.; Cal. Gov. Code §12940(J)(3) & (K)); (2) discrimination based on military and veteran status (Cal. Gov. Code §12900, et seq.); (3) negligence for failure to take all reasonable steps necessary to prevent discrimination and harassment (Cal. Gov. Code §12940, et seq.; Cal. Civ. Code §§43, 1708); (4) retaliation (Cal. Gov. Code §12940(H)); (5) wrongful termination (constructive discharge in violation of public policy); (6)...

Excerpt: ...artment building located at 234 6th St. in Seal Beach. On 1/14/17, Plaintiff published a website. Soon thereafter, Defendants Joel and Donald Duran hijacked the contents of the Plaintiff's website and used it for their own website. Joel Duran is the apartment manager for Plaintiff's building. His father, Donald Duran, helps him manage the building. B&C Properties is the owner of the apartment building. Plaintiff also alleges that Defendants Joel ...

Excerpt: ...ughes for: (1) breach of contract; and (2) general negligence. On 9/6/17, the Court: (1) granted a motion to compel the plaintiff to submit the claims in the complaint to arbitration before JAMS or Judicate West and stay the court action pending resolution of the arbitration; and (2) denied plaintiff's motion for an order staying the entire action, including the hearing on the motion to compel arbitration, pending resolution of the dissolution pr...

Excerpt: ...jects that the documents sought are protected by Plaintiff's right to privacy. The court agrees, and grants the motion to quash the FS SDT. Where the right to privacy is asserted as a protection against discovery, the person raising the objection must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Williams v. Superior Court (...

Excerpt: ...tal Corp.'s Motion to Consolidate is GRANTED as follows: Westover v. Simon, D.D.S., et al., Case No. 30-2019-01093125-CU-BC-CJC (“Westover Action”) is consolidated with this action, Bond v. Simon, et al., Case No. 30-2018-01014579 (“Bond Action”), for all purposes. The Bond Action is to be the lead case. The two cases Defendants are seeking to consolidate involve common questions of law and fact, i.e., they arise from the dental services ...

Excerpt: ...d by TIAA CREF. Robert and plaintiff separated in 2009 and divorced in 2010. As part of the divorce settlement, Robert retained his 403(b) retirement account as his sole and separate property. However, Robert never changed the beneficiary designation on the 403(b) account, which was subsequently split into two separate retirement accounts as follows: Annuity contracts remained with TIAA CREF and mutual funds went to Fidelity. Robert did not desig...

Excerpt: ...ditionally, “[f]acts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.” (Levy v. State Farm Mut. Auto. Ins. Co. (2007) 150 Cal.App.4 th 1, 6). Within the First Amended Complaint, Plaintiff alleges he entered into a “Home Equity Conversion Mortgage Adjustable Rate Loan Agreement” with Defendant Pacific Residential. (¶5 of FAC). The Agreement, attached as Exhibit A to ...

Excerpt: ...ch addresses the issues within the exclusive jurisdiction of the Probate Department. (Probate Code §17000 and Probate Code §17200(b)). Plaintiff shall inform the Court in writing, no later than April 6, 2020, whether such an action has been commenced. Pursuant to Probate Code §17000(a), “[t]he superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of t...

Excerpt: ... of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a compl...

Excerpt: ...”) is barred by the statute of limitations. The court sustains the demurrers on both of these grounds. 1) FAC was untimely filed and is barred On 9/9/19, the Court sustained both defendants' demurrers and gave leave to file the FAC within 21-days of service of the notice of the ruling. On 9/10/19, defendants filed and served by mail the Notice of Ruling on the original demurrers and motions to strike. The FAC was required to be filed by 10/6/19...

Excerpt: ...of great liberality in permitting amendments . . . at any stage of the proceedings, up to and including trial. . . .'” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Defendant's challenges to the FAC's legal sufficiency are better handled at a later stage. (See Atkinson, supra, 109 Cal.App.4th 739, 761; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 6:644.) The court may condition a...

Excerpt: ...e Civ. Proc. § 1281.2 provides, inter alia: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitr...

Excerpt: ...aintiff has met its burden to show that those requirements are also satisfied. Minakov argues that probable validity is not shown because the contract with Plaintiff was modified or terminated in August 2016 based on an oral agreement. But the only evidence offered to support that claim is his own statement. (Minakov Decl. ¶ 6.) This statement is insufficient to defeat Plaintiff's showing of probable validity based on the written contract here. ...

Excerpt: ...ured as the result of the operation of the vehicle.” (Hardin v. San Jose City Lines (1953) 41 Cal.2d 432, 437.) Defendant's cited evidence raises the inference of res ipsa loquitur. It shows plaintiff was injured on an OCTA bus when “the driver ‘increased speed and then changed lanes.'” (Def. SSUF #1-2.) Defendant “is obliged to meet the inference by evidence sufficient to offset or balance it.” (Hardin, supra, 41 Cal.2d at p. 437.) �...

Excerpt: ...ought, including any agreements to narrow the requests set forth in the subpoena. The parties have now advised the Court that Defendant has agreed to provide further discovery responses regarding ASAS Group's corporate structure (including the identity of its shareholders, directors and officers) and regarding Defendant Sadruddin's involvement in the company as the only shareholder, director and officer. SO ORDERED. For its part, Plaintiff has cl...

Excerpt: ...notes that Grosch objected to the motion as being untimely, and he also argued that Newman “waived” the right to the protection of the anti-SLAPP statute. As to the former, the Court finds the motion was not untimely because the cross-complaint was served, by mail, on 10/22/19. (ROA 11.) Thus, Newman had through 12/26/19 to bring this motion. (Code Civ. Proc. §§ 425.16(f). 1013(a).) Newman timely filed this motion on 12/20/19. (ROA 19.) As ...

Excerpt: ...ith. Plaintiff's request to strike/tax $16,500 for expert witness fees is denied. Plaintiff has shown that Defendant's CourtCall fees were not reasonably necessary to the conduct of litigation. Plaintiff's request to strike/tax $266 for CourtCall fees is granted. The prevailing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032. To claim costs, the prevailing party must file and serve a memorandum ...

Excerpt: ... and 17. The Court finds that Plaintiff's testimony as to what the assailant said to him just before the attack is admissible under Evidence Code §1237. Merits 1. Negligence and Premises Liability As an initial matter, Defendant inserts in its separate statement that it did not own, lease, occupy, or control the premises. But this is properly disputed by employee Mr. Benitez' testimony, the same employee who provides a declaration in support of ...

Excerpt: ...t billed until January 2019. Petersen Decl., Ex. 5. From January 2019 through January 2020, Plaintiff's sole bank account and asset contained money less than that amount at the end of each month with the exception of January 2019 and May 2019. See, Mackovska Decls. The Court notes that it was reasonable for Plaintiff not to pay the fees in either of those two months as defendant Ameron Pole Products, LLC (“Defendant”) represented to Plaintiff...

Excerpt: ... other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case,. . . .” (Emphasis added.) The court also may, sua sponte, order bifurcation or severance of an issue at any time, including after the trial has commenced. See Buran Equip. Co. v. H & C Invest. Co. (1983) 142 Cal. App. 3d 338, 343. Beyond Section 598, CCP Section 10...

Excerpt: ...r as well, as the issues overlap. (See Obregon v Superior Court (1998) 67 Cal.App.4th 424, 433–435). As a preliminary observation, there appears to be much middle ground between the parties' positions. It is certainly conceivable that both the discovery requests and the protective order are overbroad. The parties may well be able to agree to production of a narrower range of financial records governed by a narrower protective order. They should...

Excerpt: ...lantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.) If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If ...

Excerpt: ...ings. The Status Conference set for April 3, 2020 will remain on calendar pending entry of judgment for defendants. Plaintiffs have not alleged any new facts in their Second Amended Complaint that would support a ruling different from the one this court made as to plaintiffs' First Amended Complaint, and have not set forth any facts warranting further leave to amend. Plaintiffs have had three opportunities to allege the causes of action challenge...

Excerpt: ...f, even if plaintiff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547.) Seventeenth Cause of Action (Declaratory Relief). The elements of a cause of action for declaratory relief are: (i) a proper subject for declaratory relief per Code of Civil Procedure Section 1060; (ii) ...

Excerpt: ...ides that a plan shall not request reimbursement for the overpayment of a claim unless the plan sends a written request for reimbursement to the provider within 365 days of the date of payment on the overpaid claim. However, Kaiser cites Ogo Associates v. City of Torrance, (1974) 37 Cal. App. 3d 830, 834, for the proposition that the doctrine of exhaustion of administrative remedies has several exceptions, including where the aggrieved party can ...

Excerpt: ...efects that appear on the face of the pleading, or from matters outside the pleading of which judicial notice has been properly requested].) The request for judicial notice filed on 02/20/20 by defendant Rahgoshay is denied on the grounds that it is untimely in support of the demurrer, and constitutes improper new evidence submitted with a reply. Moving party to give notice. 2. Defendant Abhari's demurrer to plaintiff's second amended complaint. ...

Excerpt: ... unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a.) As to nos. 6, 7, and 8, the declarations in an exhibits are hearsay. Judicial notice of other court records and files is limited to matters that are indisputably true. Thi...

Excerpt: ...  the allocation of settlement proceeds among plaintiffs  recognition that the settlor should pay less in settlement than he would if he were found liable at trial  the financial conditions and insurance policy limits of settling defendants  the existence of collusion, fraud or tortious conduct aimed to injure the interests of non-settling defendants.  These factors are not exhaustive and may not apply in every case. Dole Food Comp...

Excerpt: ...by such an agent. (Goldman v. SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1173 (Goldman); Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6 (Young); see Eusey Decl. ¶¶ 4, 6-8, 14, Ex. A.) Emeritus has not met this burden. Emeritus has failed to submit any competent evidence of an actual agency between decedent Lois Christie (Christie) and plaintiff Donna Lewis (Lewis). (See Eusey Decl. ¶¶ 2, 4, 6-8, 14, Exs. A, B...

Excerpt: ...lable penalties. Attorneys' fees and costs, class representative enhancements, settlement administration costs (excluding employer's share of withholding taxes) shall be paid out of the GSA to calculate the Net Settlement Amount (NSA) to be distributed to the class.” The MOU stated that plaintiff would file an amended complaint including a PAGA claim. Under the terms of the MOU, “in addition to the GSA”, plaintiff was to receive a specified...

Excerpt: ...isted in Plaintiff's Notice of Motion is denied without prejudice to Plaintiff refiling timely separate motions to quash each subpoena and paying resultant filing fees. Plaintiff's motion concerns a subpoena duces tecum (“Subpoena”) issued by counsel for Stater Bros. on October 9, 2019, and served on deponent Hoag Hospital Irvine - Records. (Ng Decl., Ex. 2.) The Subpoena requests: “[a]ny and all medical records, charts, files, doctors' not...

Excerpt: ...nt is “guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Malice is defined as “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, subd. (c)(1).) Oppression is defined as “despicable conduct that subjects a person to cruel and unjust har...

Excerpt: ... stricken, and Verona Collection's default should be entered, because Verona Collection is a foreign corporation that “does not hold a valid certificate from the California Secretary of State in violation of [Corporations Code] Section 2105,” and “lacks the right and the capacity to defend and/or maintain any action or proceedings in any court of this state” under Corporations Code section 2203. (Mot., at p. 3.) Corporations Code section ...

Excerpt: ...lemental briefing from the parties regarding the applicability of Donovan v. Dan Murphy Foundation (2012) 204 Cal.App.4th 1500. Code of Civil Procedure section 425.16 permits a special motion to strike Strategic Litigation Against Public Participation (“SLAPP”) lawsuits. A SLAPP suit is “a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 23...

Excerpt: ...discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) Once a party is ordered by the court to provide responses to discovery, continued failure to respond may re...

Excerpt: ... and declaratory relief. Cross-defendants demur to all six causes of action. Cross-defendants also move to surgically excise a number of averments within the operative pleading pertaining to the underlying agreements between the parties. Initially, this Court notes that the First Amended Cross-Complaint is narrowly-tailored, consuming a relatively scant nine pages. The essential facts are set forth clearly, and with adequate precision to acquaint...

Excerpt: ...egations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from th...

Excerpt: ...ruled. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurr...

Excerpt: ... days leave to amend. Alter Ego Allegations: “ ‘Before the acts and obligations of a corporation can be legally recognized as those of a particular person, and Vice versa, the following combination of circumstances must be made to appear: First, that the corporation is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individuality, or separateness, of the said person and corpor...

Excerpt: ...Cause of Action for Breach of Covenant of Good Faith and Fair Dealing in the Third Amended Complaint (“TAC”) filed on 9/16/19, by Plaintiffs, Michael Alladawi (“Alladawi”), Nour Khedraki, Umbrella Capital Group, Inc., dba The Plaza Realty Group, Umbrella Investment Group, LLC, Ikon, LLC, and Acacia Properties 1, LP (collectively “Plaintiffs”). A pleading is adequate if it contains a reasonably precise statement of the ultimate facts, ...

Excerpt: ...ndant's outrageous conduct. Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228-229. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. at p. 229. To avoid a demurrer, the plaintiff must allege with great specificity the acts that he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. Vasquez v. Franklin Ma...

Excerpt: ...ge the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. Every element must be pled specifically. Ibid. Moving defendants contend that the cause of action fails to meet this standard, and they are correct. The first cause of action all...

Excerpt: ...e case was settled when it is not, which caused all future hearing dates in this case to be vacated; and that counsel failed to timely remedy the problem when the erroneous filing was brought to their attention. Pursuant to CCP § 128.5, a Court may order a party or counsel, or both, “to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or s...

Excerpt: ... 531, 549.) As to the Settlement 6. Please confirm Plaintiff is the only aggrieved employee. 7. Plaintiff must provide valuations for each component of the PAGA claim so the Court can assess whether the $1,000 allocated to PAGA is fair. Plaintiff must also state the documents it reviewed in determining its valuations. 8. What claims if any remain pending against defendants who are not party to the settlement? 9. Do any of the parties know of any ...

Excerpt: ...tion for Attorneys' Fees California Civil Code §1794(d) provides that a prevailing plaintiff in a Song-Beverly case shall be allowed to recover a sum equal to the aggregate amount of costs and expenses, “including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Cal. Civ. Code § 1794(d). The plain wording ...

Excerpt: ... Civ. Code § 1708.85(a)); and ordering all parties and their agents and attorneys to use the pseudonym Jane Doe to refer to Plaintiff and the pseudonym John Doe to refer to Plaintiff Jane Doe's husband in all pleadings, discovery documents, and other documents filed or served in the action, and at hearings, trial, and other court proceedings that are open to the public (Cal. Civ. Code § 1708.85(f)(2)(A)), and to exclude or redact any identifyin...

Excerpt: ...lding themselves out or their offices out as plaintiff's new offices or otherwise as successors to plaintiff; and 3. Using business names that include “Focus Financial”. Defendant Williams' objections to paragraphs 3, 4, 10, 12, 19, 21, 23, 31, 32, 33, and 34 of the Cho Declaration are OVERRULED, and the objections to paragraphs 13, 14, 15, 16, 17, 22, 25, 26, 27, 28, 29, and 30 of the Cho Declaration are SUSTAINED. Although the court has bro...

Excerpt: ...(CA. LAB. CODE § 510) FAILS AS A MATTER OF LAW (Undisputed Material Facts (“UMF”) 1 to 138) The elements of a cause of action for failure to pay overtime are: (1) plaintiff performed work for defendant; (2) plaintiff worked overtime hours; (2) plaintiff was not paid and/or paid less than the overtime rate for some or all of the overtime hours worked; (4) the amount of overtime pay owed. CAC contends that this cause of action has no merit bec...

Excerpt: ..., 88-89; Jarrow Formulas, Inc. v. LaMarche (2003) 31 C4th 728, 733. “Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.” Navellier, supra, 29 Cal. 4th at 89. In order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have “'...

Excerpt: ... the NIB to real party in interest Cummings Industries, Inc. dba North American Crane Company (“NACC”). Factual Timeline On 04/27/18, the NIB was issued by OCSD, and it required bids to be submitted by 05/29/18. (AR 128.) According to paragraph 3.1 of the NIB, OCSD reserved “the right to reject any or all Bids, waive any or all irregularities and accept or reject any portion of each individual Bid.” (AR 135.) While “[a]ny missing bid re...

Excerpt: ... defendant KSL Resorts Corporation is dismissed from the lawsuit. When does Plaintiff intend to dismiss the claims against defendant KSL MBR Management II, LLC? 2. As set forth in the 1/23/2020 minute order, Plaintiff must provide an estimate of the low and high recovery of the “aggrieved employees,” and state the amount expected to be received by Plaintiff. Plaintiff has only provided the average recovery of the aggrieved employees. (See Sup...

Excerpt: ... of the Huntington Beach Police Department, and Plaintiff has not exhausted less intrusive methods/sources of discovery.” (Notice of Motion & Motion at p. 2.) Facts/Overview: On August 28, 2019, plaintiffs Huntington Beach Police Officers' Association (HBPOA or Association) and Yasha Nikitin (collectively, plaintiffs) commenced this action against defendant City of Huntington Beach (City or defendant) alleging the following three causes of acti...

Excerpt: ... other things, breach of contract. Defendant filed a cross-complaint for, among other things, breach of contract. The complaint has now been dismissed. Only the cross-complaint is still at issue. On 11/7/18, the Court granted Moving Party's unopposed motion for judgment on the pleadings to the answer, with leave to amend on the ground that cross-defendant, as a corporation, could not represent itself in this action. Cross-defendant was granted te...

Excerpt: ...y duty; (6) breach of contract; (7) money had and received; and (8) deposit in court. Plaintiff alleges that Marik has failed to pay legal fees and that defendant Saba, a former law associate, has interfered in plaintiff's ability to collect fees from Marik and others. Concurrently with the complaint, on 4/18/19, plaintiff filed a Notice of Related Cases, indicating that this case is related to Saba v. San Jacinto Z, LLC, OCSC Case No. 2017- 0095...

Excerpt: ...evin Long on 1/22/18, alleging causes of action for: (1) Motor Vehicle Negligence; and (2) General Negligence. Defendant Long answered the complaint on 2/13/18. Plaintiff amended the complaint on 5/2/18 to identify Erika Garcia as DOE 1. Defendant Garcia answered the complaint on 6/18/18. Defendant Long's motion for summary judgment was denied on 10/23/19. The case is set for an MSC on 02/28/20, and a continued trial on 09/28/20. Moving Party con...

Excerpt: ...mplaint alleges causes of action for: (1) Premises Liability; and (2) General Negligence. Plaintiff alleges she was injured due to a fall at Defendant's CVS Pharmacy location, caused by a malfunctioning automatic entry door. Defendant claims that an elderly gentleman was trying to enter the store through a marked exit door, that he fell down attempting to do so, and that he knocked down Plaintiff, causing her to become injured. On 04/17/19 Plaint...

Excerpt: ...ts/Overview: In light of the significant amount of law and motion activity in this action, including pleading challenges, discovery disputes, summary judgment motions, and motions for sanctions, and the Court's belief that all parties are well acquainted with the facts and procedural history of the case, a limited statement of facts and overview is provided herein. Most recently, trial had been set for 11/25/19. On 11/21/19, defendants' ex parte ...

Excerpt: ...ran is the apartment manager for Plaintiff's building. His father, Donald Duran, helps him manage the building. B&C Properties is the owner of the apartment building. Plaintiff also alleges that Defendants Joel and Donald Duran hacked into his cellphone and obtained written information and audio; and installed cameras that took photographs or video of Plaintiff while he was in his apartment. Defendants Joel and Donald Duran tracked everything tha...

Excerpt: ...r (1) breach of contract, (2) breach of contract, and (3) fraud – intentional misrepresentation. On July 30, 2019, the court granted plaintiff's first amended ex parte application for right to attach order and writ of attachment in full. On July 31, 2019, the court entered an order granting plaintiff a writ of attachment in the amount of $326,250.00 with respect to the property located at 28602 Silverton Drive, Laguna Niguel, California 92677. ...

Excerpt: ...Code § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. [Citation.] When the plaintiff...

Excerpt: ...FA Nos. 11, 13, 15, and 18 these requests are compound. The Requests should be propounded as separate requests. As to RFA Nos. 5, 6, 7, 10, 16, 17, 19, and 10, the Motion is GRANTED. Despite Defendant's objection, these requests are not compound, and the defined term of “PROFESSIONAL NEGLIGENCE” is not vague, ambiguous or compound. Defendant is required to provide to provide a complete and straightforward response as the information reasonabl...

Excerpt: ... no e-mails responsive to any of the requests at issue, defendant is to provide a supplemental response concerning the inability to comply which complies with Code of Civil Procedure section 2031.230. Good Cause and Relevance: Defendant's supplemental responses contain statements of compliance with the demand that are incomplete. Code of Civil Procedure section 2031.220 provides, in relevant part, that “[a] statement that the party to whom a de...

Excerpt: ...d to discuss the appropriate amount of the mandatory bond. (See Code Civ. Proc., § 529, subd. (a).) 15 Almeria. Plaintiff has shown an injunction is warranted after weighing both “the likelihood [he] ultimately will prevail on the merits and the relative interim harm to the parties from the issuance or nonissuance of the injunction.'” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) Plaintiff has shown a sufficient probability ...

Excerpt: ...ot accepted and the plaintiff fails to obtain a more favorable judgment or award, the costs under this section, from the time of the offer, shall be deducted from any damages awarded in favor of the plaintiff. If the costs awarded under this section exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.” Assuming a valid Section 998 offer, it...

Excerpt: ...at Tesla. (¶2 of Kim Declaration). Mr. Kim attaches the Sales Contract executed by Plaintiffs and “stored by Defendant in an electronic file containing all documents related to the subject transaction.” (¶3 of Kim Declaration). Mr. Kim declares the document was kept in the ordinary course of business. (Id.). In Opposition to the Motion, Plaintiffs challenge this showing, asserting “Tesla has failed to submit admissible evidence demonstrat...

Excerpt: ...he three causes of action asserted in Plaintiff's SAC. The SAC alleges the Bank failed to properly issue Plaintiff voting common stock, pursuant to written stock warrants the Bank had issued and that Plaintiff had acquired from the prior warrant holder – and that, instead, the Bank issued non-voting stock. More specifically, Plaintiff alleges that on or about November 1, 2010, the Bank issued a warrant for 1,395,000 shares of its common stock t...

Excerpt: ...ing filed by Plaintiff and Defendants, the Court declines to permit the filing of the proposed supplemental complaint, because the proposed causes of action are not “supplemental” within the meaning of CCP section 464(a). “It is the function of a supplemental complaint to set up facts material to the case occurring after the filing of the former complaint. It is not allowable to substitute a new and distinct cause of action by way of supple...

Excerpt: ...aned money to defendant. Failing to join the other lender creates a substantial risk of exposing defendant to multiple liability. (See Code Civ. Proc., § 389, subd. (a)(2)(ii).) On the other hand, this cause of action is not time-barred on the face of the complaint. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) Defendant allegedly breached the promissory note by repudiating the debt and selling the security in 2019....

Excerpt: ...5.16, subd. (b)(1); Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) An “ ‘act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written o...

Excerpt: ...h and nineteenth causes of action respectively. Where a court grants leave to amend after sustaining a demurrer, the scope of permissible amendment is limited to the causes of action to which the demurrer has been sustained. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [ruling that adding new cause of action after demurrer is improper]; People v. Clausen (1967) 248 Cal. App. 2d 770, 785-86 [finding that adding new party aft...