Excerpt: ...e interests of justice support doing so. Defendants Spertus, Landes & Umhoffer, LLP and James Spertus' Motion to Compel Arbitration, however, limits the court's subject matter jurisdiction. Once a motion to compel is made, a court has jurisdiction to determine that (1) there is a valid agreement to arbitrate; (2) one party is refusing to arbitrate; and (3) the lawsuit must be stayed and the dispute ordered into arbitration. (Office & Professional...

Excerpt: ... papers, including the class notice. Plaintiffs provide no information as to defendant's potential exposure for the violations alleged. Plaintiffs must provide the court with information showing what potential outcome putative class members and aggrieved employees are giving up in exchange for this settlement. The motion fails to provide the class members and aggrieved employees' estimated individual recovery under the proposed settlement, includ...

Excerpt: ... costs, and this court granted the motion on February 16, 2018 on the ground that there was no prevailing party at trial because plaintiffs prevailed on two issues (Judgment ¶¶2 and 3B) and defendant prevailed on five issues (Judgment ¶¶1A, 1B, 3C, 4 and 5). Plaintiffs did not appeal from that ruling, and thus that ruling is final, even though the court of appeal reversed this court's ruling on issue 3C. Even after the reversal, the ruling as...

Excerpt: ...l Notice is granted. Plaintiff's 1st cause of action, for Breach of Contract for Purchase, now alleges (per CACI 303 and case law) that defendant Anthony failed to do something that the contract required her to do, as well as all other required elements. Plaintiff alleges that Anthony failed to transfer the washer and dryer as required by the Purchase Agreement, paragraph 8B(2) (TAC ¶¶48, 64(f)), that possession of the Corbina Property was deli...

Excerpt: ...re disfavored. (Cal. Rules of Ct., Rule 3.1332(c).) The Court “may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailabili...

Excerpt: ... 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 allegations made must be accepted as true for the purpose of ruling on the demurrer. 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...

Excerpt: ...rt 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 demurrer. Berryman v. Merit Prop. Mgmt., In...

Excerpt: ...ns 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 the matt...

Excerpt: ... Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 732 [internal quotations and citation omitted].) Mandatory intervention is improper. Rubio is unable to establish the second prong of the test. The settlement does not impair or impede Rubio's ability to protect his interests. In particular, if Rubio is unhappy with the settlement he may opt out. Or, if he does not want to opt out, he may object and explain why it is unfair or inadequate...

Excerpt: ...d documents of which Defendants seek judicial notice. Judicial notice is granted as to the initial complaint, first amended complaint (“FAC”), and seconded amended complaint (“SAC”) filed by Plaintiffs in this action. (Evid. Code, § 452(d).) Judicial notice is also granted as to Facts 1 through 5. (Evid. Code, § 452(d), (h).) However, judicial notice is denied as to Facts 6 through 10, which are disputed by Plaintiffs. (See Herrera v. D...

Excerpt: ...a preponderance of the evidence to negate the plaintiff'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 t...

Excerpt: ...gued that under the arbitration provision AAA is the default arbitration service if the defendant disapproves the plaintiff's selection. The plaintiff countered that it would only select JAMS and the defendant waived any challenge to its selection because it did not timely object. Although the plaintiff does not use these words, essentially he argues that the arbitration selection process in the agreement is procedurally unconscionable if he has ...

Excerpt: ...emails and files on the computer. In a November 7, 2019 order, the court scheduled the petition for hearing on February 20, 2020 and directed Petitioner, inter alia, to file his opening brief in support of the petition by December 23, 2019 and to file his reply by February 4, 2020. Petitioner did not file either an opening brief or a reply. There are a “Memorandum of Points and Authorities in support of Petition for Writ of Mandate,” two decl...

Excerpt: ...e prior to or at the hearing showing the papers were properly served on Defendant. Plaintiff's motion is entitled motion to reconsider and Plaintiff seeks reconsideration of the dismissal. However, Plaintiff essentially moves for relief pursuant to Code of Civil Procedure section 473 and not Code of Civil Procedure section 1008. In addition, Plaintiff does not show any new or different facts, circumstances, or law to support a motion for reconsid...

Excerpt: ...f contract, and twelfth cause of action for quasi-contract/unjust enrichment. Plaintiff has not alleged these causes of action against Taryn Garett or Rick Granados; they are alleged solely against defendant Kevin Garrett (hereinafter, Garrett). (See TAC at pp. 16, 19, 25.) First cause of action for “breach of contract – failure to compensate [plaintiff] for the book of business.” The first cause of action is based on a client nonsolicitati...

Excerpt: ...he breach of fiduciary duty cause of action as alleged in the 3 rdAC has a three year statute of limitations. “[i]n order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery de...

Excerpt: ... removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” Therefore, the ambiguously written cause must be construed against the drafter. Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees. . . . Code of Civil Procedure section 1021, which codifies this rule, provides: ‘Except as attorney's fees are specifically pr...

Excerpt: ...are no facts alleged to support liability against these moving parties on the basis of conspiracy. (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 44 [“[a] cause of action for civil conspiracy may not arise … if the alleged conspirator, though a participant in the agreement underlying the injury, was not personally bound by the duty violated by the wrongdoing and was acting only as the agent or employee of the party who did have that dut...

Excerpt: ...(K), for ambulance drivers and attendants. Under that provision, “The daily overtime provision of subsection (A) above shall not apply to ambulance drivers and attendants scheduled for 24-hour shifts of duty who have agreed in writing to exclude from daily time worked not more than three (3) meal periods of not more than one (1) hour each and a regularly scheduled uninterrupted sleeping period of not more than eight (8) hours. The employer shal...

Excerpt: ...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 v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. (Civ. Proc. Co...

Excerpt: ...tention,” or “retained limit,” generally refers to the amount of a loss or liability that the insured agrees to bear before coverage can arise under the policy. Although a self-insured retention ordinarily differs from a deductible in some respects, the term “self-insured retention” or “retained limit” in an insurance policy can reasonably connote to the insured no more than what is expressly stated in the policy. In other words, th...

Excerpt: ...ed.” (Cal. Rules of Ct., Rule 3.1332(b).) Trial continuances are disfavored. (Cal. Rules of Ct., Rule 3.1332(c).) The Court “may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death,...

Excerpt: ...shall provide responses, without objections, to Plaintiff's Form Interrogatories One within 15 days of service of Notice of Ruling. The Motion by Plaintiff Eric J. Hardeman to Compel Responses to Request for Production of Documents by Defendant Rock Advantage, Inc. is GRANTED. As a result of Defendant Rock Advantage, Inc.'s failure to serve timely responses, Defendant has “waive[d] any objection to the demand, including one based on privilege o...

Excerpt: ...l for evaluation. She was seen and discharged home. Three days later, plaintiff returned to the defendant hospital with unresolved complaints of nausea, vomiting, headaches and elevated blood pressure. Fetal monitoring strips confirmed the presence of contractions. Plaintiff was again sent home. She returned later that evening, and was differentially diagnosed as experiencing deep variable decelerations with the baby displaying an agonal heart ra...

Excerpt: ...t to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as she did if she had known of the concealed fact; and (5) as a result of the concealment of the fact, the plaintiff sustained damage. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) Further, fraud must be plead with particularity rather than with “general and conclusory” allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) Thi...

Excerpt: ...f contract. The demurrer to the first cause of action for fraud is overruled. “A complaint for fraud must allege 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; CACI 1900.) Fraud must be pled with specificity. (Philipson & ...

Excerpt: ...overruled. Defendants requested judicial notice of a “Property Information Sheet” and an “Amendment to Escrow Instructions and/or Purchase Contract” in connection with its moving papers. While courts may take judicial notice of “the existence of a document,” it is well-settled that “the truthfulness and proper interpretation of the document are disputable.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, ...

Excerpt: ...Kim, Rebekah Rhyoo (“Rhyoo”), and Tracy Shin (“Tracy”) (collectively, “Demurring Defendants”) demur generally and specially to the fourth cause of action for breach of fiduciary duty and sixth cause of action for unfair business practice in violation of Business & Professions Code section 17200. The Court notes that judgment has already been entered against defendant Jung Hun Kim (erroneously sued as Jung Hoon Kim), pursuant to the pa...

Excerpt: ... or previously. MPs shall give notice. Demurrer Regarding De Facto Partnership (overruled) Plaintiff attempts to plead facts to support having a stake or ownership interest in the LLC entity, which holds (or held) the title to various real properties. (See, e.g., SAC ¶16-17, 21-3, 27, 29, 34, 64.) Documentary evidence and testimony will likely aid a trier of fact to reach any conclusion about the appropriate relations of the parties. At the pres...

Excerpt: ...all be increased by five days if the place of address is within the State of California.... The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise ....' (§ 437c, subd. (a), italics added.) “The importance of providing the minimum statutory notice of a summary judgment hearing cannot be overemphasized.” Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1261–1262. Here, the not...

Excerpt: ...ine the persons protected and the conduct prohibited.” (Evans v. Evans (2008) 162 Cal.App.4th 1157, 1167.) Second, to whatever extent plaintiff seeks a civil harassment restraining order, he is doing so without using the mandatory JCC forms (CH-100, CH-109, etc.). There is no proof of personal service for the paperwork he did use. (See Code Civ. Proc., § 527.6, subd. (i).) Had he used the correct forms, his request would have been routed to De...

Excerpt: ...se of action is for premises liability; the third is for negligence. The Motion is DENIED. Plaintiff's evidentiary objections are all overruled. Downtown Anaheim's evidentiary objections are sustained as to Nos. 33, 34, 40, 41, and 43 and overruled as to the remainder. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled t...

Excerpt: ...locate and establish the chain of custody shall be reviewed and may be reallocated upon the filing of a motion seeking such relief. “ ‘Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. [Citations.] Such conduct is condemned because it 'can destroy fairness and justice, for it increases the risk of an erroneous decision on th...

Excerpt: ...ories. Cross-Complainant's motion to compel compliance with RFP responses and for further responses to RFPs is granted. Cross-Complainant's motion to compel further responses to RFAs is granted. Cross-Complainant is awarded total sanctions of $2,500 against Cross-Defendant. Service of the Motions Cross-Defendant objects that he was not timely served with the motions as he only received by them by email on 1/21/20. But, in addition to the proofs o...

Excerpt: ...ion of her deposition by The First Christian Church of Mission Viejo (the “Church”) was properly served. The Church opposed Plaintiff's motions and did not object to the motions on the ground of improper service. The Court will address all motions on the merits. However, the Court orders all parties, at or before the hearing, to file Code- compliance proofs of service for all papers they have filed in connection with these motions. The Court ...

Excerpt: ...ractices made unlawful by Gov't Code § 12940. Gov't Code §§ 12920 and 12930(f). Gov't Code § 12940, among other things, prohibits an employer from refusing to hire or employ an employee on the basis of “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military an...

Excerpt: ...Cal.App.4th 471, 485 (when considering a demurrer, trial court may take judicial notice of answers to requests for admission.).) Defendants argue that the First Amended Complaint (“FAC”) is a sham pleading because the original Complaint alleged that Defendants' statements regarding imminence were fraudulent, but the FAC now claims Plaintiff actually agreed with the decision to delay the liquidity event, contradicting his prior pleading. The s...

Excerpt: ...is ruling is that only remaining claim in the lawsuit is the first cause of action for breach of contract. I. Evidentiary Objections A. Plaintiff's Objections Plaintiff filed a document entitled “Plaintiff's Objections to Defendant's Evidence.” (ROA 363.) The Court has reviewed these objections, which are not actually objections to evidence, and do not comply with CRC 3.1354(b). The rule requires the objecting party to identify items of evide...

Excerpt: ...se of action, the fourth cause of action as to Plaintiffs Donovan and Curtis Reale only. The remainder of the demurrer is overruled. Request for Judicial Notice In support of both Motions, Defendants request that the court judicially notice the Complaint. The request is denied. It is 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 ...

Excerpt: ... Warranty is sustained, with leave to amend, for failure to state sufficient facts to constitute a cause of action. (C.C.P. §430.10(e)). This cause of action is time-barred. (Kreiger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213 [four-year statute of limitations under Cal. Comm. Code 2725 applies to claims under Song-Beverly Act]; Commercial Code §2725(2) [“breach of warranty occurs when tender of deliver is made']; Cardinal ...

Excerpt: ...as granted as to half of the factual allegation paragraphs and two of the three causes of action that Defendants sought to strike. As such, Defendants are entitled to an award of fees. Mandatory attorney's fees awarded under Section 425.16, subdivision (c), are those fees that the court deems reasonable. (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132.) It is Defendants' burden of proof to show the fees it incurred and that the fees were reasonab...

Excerpt: ... cause of action is DISMISSED WITHOUT PREJUDICE. Defendants' request for judicial notice of Plaintiff's pre-filing letter to the LWDA, made in the reply papers, is GRANTED. Although not directly relevant to this motion, the Court is disturbed by Defendants' counsel's pronouncement that she will not communicate with Plaintiff's counsel except in writing. Beyond the fact that oral communication is required for certain meet and confer obligations (e...

Excerpt: ...s ruling on this motion will apply to the Fifth Amended Complaint. Defendant Residential Fire Systems (“RFS”) identifies itself as a “privately-owned small business that installs fire sprinkler systems for residential community developments and custom homes throughout Southern California.” Motion at 2:7-8. Plaintiffs were/are employees of RFS and brought this action alleging several wage and hour violations on behalf of a class of RFS emp...

Excerpt: ...mitations, Plaintiff raises various tolling arguments. Statute of Limitations. First, Plaintiff contends that the claims are tolled by the discovery rule. “Although a cause of action generally accrues, triggering the statute of limitations, when it is complete with all of its elements, accrual is postponed until a plaintiff discovers, or has reason to discover, the cause of action.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 147...

Excerpt: ...hibits 1-10. Responses were due on May 4, 2018. As of December 7, 2018 (the date the motions were filed), the Summers had not provided responses or asked for additional time. Defendant filed a motion to compel responses and to have the requests deemed admitted. On January 18, 2019, the court issued a minute order granting the requested relief. However, after the order was issued, defendant learned that the Summers had not been properly served wit...

Excerpt: ... Worksite Employee Notice & Acknowledgements” and will be referred to as “Section 3” in this order. Because it is entitled “Section 3”, the court presumes it is part of a larger document including at least Sections 1 and 2. The larger document was not provided for the court's review. Further, there is no supporting declaration authenticating Section 3. Shelton does not, however, deny that his signature appears on the document. According...

Excerpt: ...e and testimony at deposition. Here, Defendant conducted the first session of Plaintiff's deposition on June 17, 2019. However, it was cut short. The parties stipulated to a second session. (Grandy Decl., ¶ 4.) On three occasions, Defendant attempted to notice Plaintiff's continued deposition, with the latest date being December 5, 2019. (Grandy Decl., ¶¶ 5- 10.) However, on December 4, 2019 at 4 pm, counsel was advised that Plaintiff was unav...

Excerpt: ...LLC; Pacific Bells, Inc.; and World Wide Wings, LLC (“Defendants”) move to compel further responses to special interrogatories and requests for production propounded on Plaintiff Roberto Lopez. (ROAs 318, 324.) These motions, which Plaintiff does not oppose, are GRANTED as set forth below. Further responses are to be served by February 24, 2020. Plaintiff and his counsel, Henry M. Lee, are jointly and severally sanctioned in the amount of $5,...

Excerpt: ...ories 7.1 and 7.2 have been answered and there is no need for resolution by this court. Interrogatory 9.2 asks for the identity of documents supporting the existence of damages claimed in 9.2 In response, plaintiff objected that documents contained confidential and private financial information and that he would “produce the documents after execution of a stipulated Protective Order.” During the meet/confer process a proposed protective order...

Excerpt: ...10(c)) provides that a lawyer will not, without informed written consent from each client, represent a client with an interest adverse to another client. In considering conflicts of interest in a concurrent representation, the court must focus on the attorney's duty of loyalty. (Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 428.) “A per se or automatic disqualification rule applies when counsel's representation of one client is ...

Excerpt: ...parties' familiarity with the factual background of the JVS Development-related cases. The allegations set forth below are those necessary to the resolution of this motion, and they are taken from the pleadings in both the WRW and ARC actions. WRW and ARC both arise from a series of allegedly fraudulent real estate transactions carried out by Vinh Phan, his associates, and related entities, including JVS Development, LLC and Amerilink Escrow, Inc...

Excerpt: ...stayed, pending arbitration. C.C.P. §1281.4. The uncontested evidence demonstrates the existence of an implied-in-fact agreement to arbitrate all “claims, disputes, or controversies” relating to Plaintiff's employment. This agreement is enforceable by either Defendant Resource or Defendant Houdini as a “customer/client” of Resource. Brown Declaration Exhibit A and Perez Declaration, ¶3. Defendants offer uncontested testimony which prove...

Excerpt: ...the plaintiff; (3) the defendant intentionally concealed the fact with the intent to defraud the plaintiff; (4) the plaintiff was unaware of the fact and would not have acted as he did if he had known of the concealed fact; and (5) as a result of the concealment of the fact, the plaintiff sustained damage. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) There are four circumstances in which concealment may constitute actionable fraud: (1) when t...

Excerpt: ... 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 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 infe...

Excerpt: ..., the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Doheny Park Terrace Homeow...

Excerpt: ...n a residential, treatment and “work therapy” program through the Salvation Army in the hopes of perhaps, one day, achieving some degree of independent productivity. As part of the overall program, individuals like James are sometimes tasked with helping out in Salvation Army retail shops (aka family store and donation center). James helped out in the shop in Lake Forest. On 04/16/19, something caused James to snap. He had an altercation with...

Excerpt: ...' Request for Judicial Notice, Exs. A and B.) A party may demur to a pleading if “[t]here is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10(c).) “The theory underlying this defense is that because the first action will normally provide an adequate remedy the second action is unnecessary and vexatious.” (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 175.) Such demurrers are...

Excerpt: ...art, and SUSTAINED without leave to amend, in part. The demur to the First through Sixth, Ninth and Tenth causes o f a c ti o n i s OV E R R U LED . Th e de mu r t o the S ev en t h an d Ei g h th c a u ses o f a c ti o n is S U S T A IN ED without leave to amend. Defendants' request that the Court take Judicial Notice of the documents attached as Exhibit 1 to the Declaration of David Refice is GRANTED. (Evid. Code §§ 452(c) and 452(h).) To the...

Excerpt: ...ties shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Willia...

Excerpt: ...on the lodestar, which is the amount of time reasonably spent and the reasonable hourly compensation of each attorney. Meister v. Regents of the University of California (1998) 67 Cal.App.4 th 437, 449; Chodos v. Borman (2014) 227 Cal.App.4 th 76, 91-92 There is no challenge to the propriety of the hourly rates – which are $300/hr for pre- dismissal work and $330-360/hr for work on the appeal for Attorney Couch and $330 for work done by Appeal ...

Excerpt: ... (f). However, the moving, opposition, and reply briefs go over the page limitations provided under California Rule of Court 3.1113, subdivision (d). Additionally, the court observes that the font used by defendants in the moving and reply brief may run afoul of the font requirements of California Rules of Court 2.104 and 2.105. The parties are urged to review the California Rules of Court and observe all formatting conventions. Because defendant...

Excerpt: ...udication shall be granted only if it “completely deposes of …an affirmative defense.” Code Civ. Proc. § 437c(f)(1). Plaintiff therefore has the burden of disproving each of the challenged affirmative defenses. This is a different burden than plaintiff would bear if she was moving for summary judgment or adjudication on her own complaint or cause of action. Issue 1 – relating to the second affirmative defense. The second affirmative defe...

Excerpt: ...paid in settlement. Rather that work it out, the parties took a trip to the DCA, and then the Supreme Court, and then back to the DCA, and now back here. Despite the journey, from this Court's perspective, nothing has changed. Pertinent History This action was commenced on 07/19/18 with the filing of a six-count complaint. Despite the number of claims, the clear crux of the case was unpaid wages – which subsumed the 1st, 2nd, 3rd, 5th and 6th c...

Excerpt: ...torney's annual salary. On 06/10/19, defendant formally retained/employed a candidate presented by plaintiff. Based on that candidate's salary, plaintiff was entitled to a finder's fee in the amount of $27,750.00. Plaintiff sent an invoice for payment, to no avail. Plaintiff followed up with numerous telephone calls and emails, all to no avail. Finally, plaintiff requested a substantive explanation for the refusal to make good on the agreement, t...

Excerpt: ...g class sufficiency at the pleading stage and directed that this issue be determined by a motion for class certification. In order to effect this judicial policy, the California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation.” (Gutierrez v. California Commerce Club (2010) 187 Cal.App.4th 969, 976.) Resolving issues of class certifi...

Excerpt: ...December 28, 2019, a Saturday; the filing of the cost bill the following Tuesday, December 31, 2019, or two court days thereafter, was thus timely. The defendant failed to meet his burden to show that the costs were unreasonable or unnecessary because no evidence was submitted in support. The “declaration” of attorney Carl Pentis filed with the motion was not filed “under penalty of perjury” (Code Civ. Proc., § 2015.5), and thus the moti...

Excerpt: ...Plaintiffs to provide “asset protection” service in connection with an adverse ruling/judgment in a lawsuit in the State of Hawaii where Mr. & Mrs. DeMarco were plaintiffs. Defendant attorneys drafted an irrevocable trust which turned out to be held a fraudulent transfer. In an effort to hide their assets from the judgment creditor in Hawaii, Plaintiffs gave $105,000.00 in cash to Defendants, who then refused to return it. Plaintiffs filed th...

Excerpt: ...he complaint (filed on 5/14/18) by Plaintiff Five Star Turf, Inc. against Defendants George Toubbeh and Jobbers Wholesale, Inc. contains causes of action for (1) Breach of Contract; (2) Open Book Account; (3) Intentional Misrepresentation (Fraud); and (4) Negligent Misrepresentation. According to Plaintiff, the original lease between the parties allowed Defendants to use a common space for two offices and the shared use of restrooms. Thereafter, ...

Excerpt: ... of a patent for an emergency repair plug for boats, notwithstanding that the US Patent and Trade Office [“USPTO”] has issued a patent identifying Artelier as the assignee. On 12/17/18, defendants Artelier Studio, LLC, Henry Goldman and Richard Joseph Benveniste filed an answer in response to plaintiff Forespar's complaint. On 1/23/19, defendant Fitzgerald was dismissed. On 2/13/19, the Court granted defendants' motion to bifurcate trial, ord...

Excerpt: ...s interference with contract; (6) intentional interference with contract; (7) legal malpractice; (8) unfair competition/business practices; (9) disgorgement of salary and benefits; (10) fraud by intentional misrepresentation; (11) fraud by intentional concealment; and (12) duress and coercion. In summary, plaintiff and defendant Peter LePort were friends, and defendant suggested that plaintiff invest in his company, LePort Educational Institute. ...

Excerpt: ...t Uliana Kozeychuk has no ownership interest therein. She, however, claims that he orally promised her a 1/3 ownership interest in the business. On 8/23/18, Ms. Kozeychuk filed her own action: Kozeychuk v. Honetschlager, case no. 2018-1011885. Her complaint alleges five causes of action for: 1. Breach of Oral Partnership Agreement 2. Promissory Fraud 3. Quantum Meruit 4. Promissory Estoppel 5. Declaratory Relief The cases were consolidated on Feb...

Excerpt: ...7c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more ma...

Excerpt: ...dant Piecemakers' Person Most Knowledgeable; 4. Plaintiff's Motion to Compel Deposition of Defendant Brenda Stanfield; and 5. Plaintiff's Motion to Compel Further Responses to Plaintiff's Requests for Production of Documents, Set Two. The Court CONTINUES the five motions to 4-2-2020, Dept. C11, at 2 pm, as set forth below. (1) Defendant Piecemakers' Motion for Protective Order: Code of Civil Procedure section 2031.060(a) provides that when a requ...

Excerpt: ...lief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judg...

Excerpt: ... or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is ma...

Excerpt: ...ons filed on 1-30-20 under ROA No. 107: The court SUSTAINS Objection No. 1. (See below.) Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the d...

Excerpt: ...y served an Amended Statement of Damages on him by mail, as opposed to personal service, rendering the default void. Defendant relies on Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, and Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308 (“Schwab”), but these cases do not appear to apply here if plaintiff properly served the Initial Statement of Damages, and plaintiff is seeking less than what was originally sought in t...

Excerpt: ...ular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propou...

Excerpt: ...to oppose the demurrer can be treated as an implied concession to the merits of the same. Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20. Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. CRC 3.1113(a). Thus, the court can and does sustain the demurrer on these grounds. In addition, the Court sustains the demurrer on the additional ground that it has merit. A public entity is not l...

Excerpt: ...t of the deed of trust by MERS to The Bank of New York Trust Company was “void” because it was not signed by a MERS employee with authority. The California Supreme Court recently held a plaintiff may challenge an assignment of a deed of trust when the allegations, if true, would render the assignment “void, and not merely voidable at the behest of the parties to the assignment ....” Yvanova v. New Century Mortg. Corp. (2016) 62 Cal. 4th 9...

Excerpt: ...ressed by the Family Law court in April 2020). This leads this Court to pose the question whether any of Plaintiff's claims in this action involve community property or potential breaches of fiduciary duties with respect to community property. The parties shall appear at the hearing to address this preliminary issue. The demurrer by Defendant Kristi Sar (“Defendant”) to the second and fifth causes of action in the First Amended Complaint of P...

Excerpt: ...s against St. Joseph Heritage Health and its employees. (RJN 1). “'Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are ... 'clear, explicit and comprehensible in each [of their] essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.'” Skrbina v. Fleming Companies (1996) 45 Cal....

Excerpt: ...ould have known of the alleged misconduct. (See CACI 426, Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591, and Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) Here, the only allegations as to Group are cursory and conclusory. (See FAC at ¶¶ 11, 26 and 49-52.) No facts are alleged to state how or why Group was allegedly negligent in hiring, supervising or retaining Dr. Trivedi. The D...

Excerpt: ...geous that it exceed[s] all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, internal quotation marks omitted.) Nor does the FAC allege “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes, supra, 46 Cal.4th at p. 1051 [internal quotation marks omitted]; accord Wong v. Jing (2010)...

Excerpt: ... promise,” in order to recover tort damages); Aas v. Superior Court (2000) 24 Cal.4th 627, 632; KB Home v. Superior Court (2003) 112 Cal.App.4th 1076, 1088 (“whether the economic loss rule applies depends on whether property damage… has occurred rather than on the possible gravity of damages that have not yet occurred”).) With regarding to misrepresentation theories, “[i]n California, fraud must be pled specifically; general and conclus...

Excerpt: ...itioned on future developments.” The statute provides a nonexclusive list of types of payments potentially subject to an assignment order, including wages, rents, commissions, and royalties. Greenbaum v. Islamic Republic of Iran, 782 F.Supp.2d 893, 895 (C.D. Cal. 2008). As explained in the Legislative history: “Section 708.510 provides a new procedure for reaching certain forms of property that cannot be reached by levy under a writ of execut...

Excerpt: ...1) 25 Cal.4th 826, 854; see also Def. SSUF #9-10, 13-18, & 20-26.) Plaintiff has not met her shifted burden to show a triable issue of material fact. (See Code Civ. Proc., §437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at p. 854.) Contrary to defendant's contention, this issue disposes of only the 6th through 9th causes of action. It does not dispose of the 1st through 5th or 10th causes of action, which also allege defendant knew or s...

Excerpt: ... (See Civ. Code § 3345 and Compl. ¶ 50 and Prayer ¶5.) The arbitration provision eliminates the Plaintiffs' statutory right to claim attorney fees under the Elder Abuse Act. (See Welf. & inst. Code § 15657.5; see Compl. at Prayer ¶ 7, praying for attorney fees).) But an arbitration agreement “may not limit statutorily imposed remedies such as punitive damages and attorney fees….” (Armendariz v. Foundation Health Psychcare Services, Inc...

Excerpt: ...rement concerned the adverse party in this litigation and the owner of record the property. This requirement did not apply to Stern Investments, because it did not own the properties when the two Lis Pendens were recorded. “Any notice of pendency of action shall be void and invalid as to any adverse party or owner of record unless the requirements of Section 405.22 are met for that party or owner and a proof of service in the form and content s...

Excerpt: ...he parties can fairly litigate these issues even if the employee's medical records are kept highly confidential under the stipulated protective order. (Cf. 2 CCR § 11069(g).) Motions to Compel re Form Interrogatories Plaintiff Jean Weil's motions to compel further responses to form interrogatories are granted as follows. Defendants Weil & Drage APC, Christine Drage, and Jacqueline Pons-Bunney contend they cannot answer the form interrogatories b...

Excerpt: ...s the California Horse Racing Board (“CHRB”). While the trial court reviews administrative actions to determine whether an agency's decision “was arbitrary, capricious, or entirely lacking in evidentiary support . . . [,] [t]he trial court reviews legal questions, including questions of statutory construction, de novo.” (City of Scotts Valley v. County of Santa Cruz (2011) 200 Cal.App.4th 97, 23-24.) In assessing the weight due to an agen...

Excerpt: ...mits 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) 238 Cal.App.4th 200, 208.) The motion may be used to attack portions of a cause of action, even if the motion does not defeat the entire purported cause of action. (Baral v...

Excerpt: ...enges jurisdiction by way of a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence that minimum contacts exist between the defendant and the forum state to justify imposition of personal jurisdiction.” (Elkman v. Nat. States Ins. Co. (2009) 173 Cal.App.4th 1305, 1312-1313.) If there is no conflict in the evidence, “the question of jurisdiction is purely one of law.” (Snowney v. Harrah's Enterta...

Excerpt: ...ng for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint, as “the pleadings set the boundaries of the issues to be resolved at summary judgment.” (Oakland Raiders v. National Footb...

Excerpt: ...2019 (ROA 162) and the revised notice attached as Exhibit 4 to the Campbell Declaration of October 11, 2019 (ROA 190). The motion for final approval shall be heard on July 10, 2020 in Department CX104. Moving papers are due 16 court days before the hearing. Please submit a revised proposed order that includes the date of the final approval hearing and updates all dates that are calculated in reference to the date preliminary approval is granted. ...

Excerpt: ...hat is, fees available through Defendants' victory on the 2006 NDA claims. Because the 2006 NDA is governed by Oregon law (ROA 167, Ex. A, at § 10.4), the Court ordered supplemental briefing on Oregon law governing contractual fee awards and its application in this case. The 2006 NDA provides that the “prevailing party” is entitled to “reasonable” attorney's fees. (ROA 167, Ex. A, at § 10.3.) Under Oregon law, for purposes of a fee awar...

Excerpt: ...ank (“FFB”) against BNY Mellon. The parties' unopposed requests for judicial notice are GRANTED. I. Factual Background A. The Lindsay Judgment and This Action This case and the related matters ultimately arise from transactions involving a property known as Stoneridge in the Coachella Valley. Plaintiffs Michael LaMelza and Villa Rossa, LLC sued Sam Lindsay, J. Robert Gilroy, First West-DHS Partners, LP, and First West Capital Corporation for ...

Excerpt: ...l, Inc. is SUSTAINED WITHOUT LEAVE TO AMEND. This matter arises from several actions taken by the Regional Board regarding the remediation of a property located on Armstrong Avenue in Irvine. Petitioners seek a writ of mandate setting aside those actions. The operative Amended Petition (ROA 23) contains two causes of action: first, administrative mandamus under CCP § 1094.5, and second, traditional mandamus under CCP § 1085. The Regional Board ...

Excerpt: ... October 18, 2019 as to the same causes of action. The court ruled that none of Plaintiff's allegations rendered any assignment or deed void, but rather voidable at best. The SAC mostly the same as the FAC. Plaintiff now makes two categories of additional factual allegations in the SAC. First, Plaintiff alleges that Cameron Financial Group Inc. was suspended by the California Franchise Tax Board and the California Secretary of State suspended Cam...

Excerpt: ...ns must be submitted as well. Any revised agreement and/or notice must also be served on the LWDA. 1. The Court continues to have major concerns with the class definition vis-à-vis the Arteaga matter. Counsel explains that the class in the present case —limited to mechanics in Redlands—was designed to fix a problem with respect to persons inadvertently excluded from the Arteaga class. This, per counsel, is why the settlement class is so much...