Excerpt: ...oundaries. The parties were apparently in discussion for over a year, but no resolution was reached. Plaintiffs filed suit, alleging a cause of action for trespass and one for nuisance. At issue is whether the facts pled support the inclusion of a prayer for punitive damages. This Court concludes they do not. To adequately plead a claim for punitive damages under the malice rubric, one must plead with specificity facts demonstrating (1) defendant...

Excerpt: ...mplainant must allege: (1) a misrepresentation, (2) knowledge of its falsity, (3) intent to defraud, 4) justifiable reliance, and (5) damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal. App. 4th 153, 157 (finding, for allegations against corporation, Plaintiff must allege authority to speak for corporation).) The heightened pleading standard requires “‘pleading facts [th...

Excerpt: ...nce billing and records, billing records, explanation of benefits (EOBs) billing off-sets, write-offs, and records of payment, amounts paid, and amounts adjusted, file including any and all records, reports, correspondence, work orders or referrals generated by any and all social workers including but not limited to social workers Bridgett White and Jerry Comberos, pertaining to the care, treatment, and examination of Chuck S. Montgomery, DOB: 03...

Excerpt: ...ined in part and overruled in part. 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 fac...

Excerpt: ...985) 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., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the c...

Excerpt: .... 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., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficien...

Excerpt: ...as established that he has complied with the fee requirement under Rule 9.40(e). (Polin Dec., ¶ 13 and Exh. A.) Thus, the unopposed application to appear pro hac vice is GRANTED. Moving parties to give notice. 2. Motion for Protective Order by Defendants Casa Capri, LLC, Casa Capri Recovery Center, LLC, Zackary Irani, Melissa Holmes Goodmon and Jeremy Broderick: Defendants Casa Capri, LLC; Casa Capri Recovery Center, LLC; Zackary Irani; Melissa ...

Excerpt: ... Claim for Punitive Damages in Plaintiffs' Third Amended Complaint: 5. Demurrer of Defendant CEP America - California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Plaintiff's Third Amended Complaint: 6. Motion by Defendant CEP America - California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Strike Portions of Plaintiff's Third Amended Complaint: Before the court are three demurrers and three motions to strike, all attacking pla...

Excerpt: ...bution and Indemnity; Third Cause of Action for Declaratory Relief against ERC; and Fourth Cause of Action for Express Indemnity alleged against ERC is also DENIED. ERC's evidentiary objections to evidence submitted by Avico are OVERRULED. Avico's objections to evidence submitted by ERC are also OVERRULED. Express Indemnity Cause of Action: ERC has submitted evidence to show that plaintiff California Military Defendant, owner of Building 7 on the...

Excerpt: ...e USA, LLC's (“Hearthside”) motion to compel arbitration is GRANTED. The FAA applies to the arbitration agreement. The agreement specifies that the FAA applies. (Mundo Decl., Ex. B, ¶ 1; Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122.) Moreover, sufficient evidence has been presented that the arbitration agreement concerns interstate commerce. (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 2...

Excerpt: ...lity must bepresent before a court can refuse to enforce an arbitration provision based on unconscionability. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4 th 83, 114. Procedural unconscionability focuses on oppression or surprise due to unequal bargaining power; substantive unconscionability focuses on overly harsh or one-sided results. Sonic- Calabasis A., Inc. v. Moreno I (2013) 57 Cal.4 th 1109, 1133 The burden of p...

Excerpt: ...e USA, LLC's (“Hearthside”) motion to compel arbitration is GRANTED. The FAA applies to the arbitration agreement. The agreement specifies that the FAA applies. (Mundo Decl., Ex. B, ¶ 1; Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122.) Moreover, sufficient evidence has been presented that the arbitration agreement concerns interstate commerce. (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 2...

Excerpt: ...the cutoff date provided under Code of Civil Procedure §2024.020, (2) compelling plaintiffs to comply with their statements of compliance in response to requests for production of documents (“RPD's”), (3) compelling plaintiffs to permit an inspection of Hilz's computer by Continental's forensics expert or appointing a digital forensics expert to conduct that inspection, and (4) compelling further responses to Continental's RPD's, Set Two. Th...

Excerpt: ...d on 9/30/19 by plaintiff Kermit Hayes against defendants Floyd Thomas Smith, GForce Corporation dba DFX Sports & Fitness [“GForce”], F.T.R.S. Family Partnership No. 1 [“FTRS”], Century Tree Service, Inc. [“Century”], Rise Smith, and Farren Mataele, for: (1) Fraud; (2) Intentional tort – violation of California Labor Code § 970; (3) Conversion; (4) Accounting; (5) Common counts; (6) Intentional infliction of emotional distress. Thi...

Excerpt: ...with defendant corporation to perform certain construction work. Plaintiff contends that it was improperly charged for staff expenses that were not agreed upon. Plaintiff Ye Xin Investments Holding filed a FAC against Defendant Erick Allen, Inc. and Erick Allen, alleging causes of action for: (1) Breach of Contract; (2) Fraud; (3) Conversion; (4) Unjust Enrichment; (5) Unfair Business Practices; and (6) Voiding Mechanics Lien. Erick Allen, Inc. f...

Excerpt: ... criminal cases and seal Federal related cases” [grammatical errors corrected and capitalization omitted]. Facts/Overview: The complaint in this action was filed on 3/2/17 by self-represented plaintiff Andrew D. Weiss against defendant Minh Nguyet Thi Nguyen (originally named as DOE 2) and three other defendants. The operative pleading is the First Amended Complaint filed on 3/3/17. Plaintiff sued defendants for (1) malicious prosecution, and (...

Excerpt: ...and Aaron Jackson. Maher Yousef succumbed to his injuries a few days later. Defendant Lucky Oil Company, dba “Buena Park Mobil,” is alleged to be the owner/operator of the gas station. Defendants Ahmad Radwan and Tag M. Radwan are alleged to be principals of Lucky. Plaintiff alleges that property owner/operator Defendants knew the three assailants were likely to injure or attack people and that they did nothing to prevent the attack. Criminal...

Excerpt: .... Moving Party contends as follows: This case arises out of a trip-and-fall accident in which plaintiff Canela Cavada claims that she tripped and fell over a rise in a sidewalk located in the City of Laguna Beach. Plaintiff only claimed that the rise in the sidewalk was “about one inch.” (Compendium of Evidence [“COE”], Exh. 4 [Plaintiff's responses to Special Interrogatories], at pp. 7:7-8:5.) The rise was measured by a sidewalk repair c...

Excerpt: ...tion; (3) sexual harassment; (4) NIED; and (5) sexual assault. Plaintiff alleges that he was sexually harassed and molested by defendant Bruce, a former teacher who was employed by defendant District, during 2009-2011 while plaintiff was a middle school student. Both defendants have answered. On 1/10/19, the Court granted defendant District's motion for summary adjudication as to the 3 rd C/A for sexual harassment. On 3/13/19, the Court denied pl...

Excerpt: ...nt meet and confer letters, but could not informally agree with respect to Defendants' discovery request. Code of Civil Procedure section 2031.060 states in part, “(a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This ...

Excerpt: ...se expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 20...

Excerpt: ...tascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, provides, “This rule of liberal cons...

Excerpt: ...ndants prevailed on their special motion to strike and are thus entitled to their reasonable attorney fees and costs pursuant to Code of Civil Procedure section 425.16(c). Defendants seek an hourly rate of $425 for their counsel. The Motion is supported by the Declaration of Blut who states his normal and customary hourly rate is $425.00. (See Blut Decl., ¶ 2.) The declaration, however, fails to set forth counsel's level of experience and fails ...

Excerpt: ...f $146,375.60 is supported by the evidence. Defendant asserts that based on Plaintiff's complaint and the pleadings, uncontroverted evidence presented at trial, and the instructions presented to the jury, no reasonable juror could have returned a damages award of $146,375.60. . . . These irregularities in the verdict resulting in an excess unsupported damages award, and a flawed proposed judgment presented by Plaintiff to this court, have prevent...

Excerpt: ...to maintain a cause of action. Defendants' Request for Judicial Notice as to the court records contained in Exhibits A and B is GRANTED pursuant to Evidence Code section 452(d). The First Amended Complaint (“FAC”) alleges defendants own and reside in a single-family home located at 203 Calle Delicada, San Clemente, California, situated in a common interest development governed by a set of covenants, conditions, and restrictions (“CC&Rs”),...

Excerpt: ... contained in Plaintiff's Order re Objections to Sunset Property Services' Statement of Undisputed Facts, filed on 1-14-20, except as to those pertaining to the declaration of Gerard P. Bretting (see above.) These objections to evidence must comply with California Rules of Court, Rule 3.1354. Defendant submitted Objections to Plaintiff's Supporting Evidence in Opposition to Motion for Summary Judgment, filed on 1-23-20 under ROA No. 398. This doc...

Excerpt: ...roducts & Services, Inc. v. Ricoh (1993) 12 Cal.App.4 th 1666, 1680, provides, “A defendant may enforce a forum- selection clause by bringing a motion pursuant to sections 410.30 and 418.10, the statutes governing forum non conveniens motions, because they are the ones which generally authorize a trial court to decline jurisdiction when unreasonably invoked and provide a procedure for the motion. [Citations.] Significantly, the party opposing t...

Excerpt: ... any further time that the court may for good cause allow, serve and file a notice of motion for one or more of the following purposes: [¶] To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” “When a defendant challenges jurisdiction through a motion to quash, the plaintiff bears the burden to demonstrate facts, as to each nonresident defendant, justifying the exercise of jurisdiction by a p...

Excerpt: ... may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. . . . [¶] (c) Upon a findi...

Excerpt: ...bdivision (b) provides that “[t]he court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.” (Code Civ. Proc. § 2033.300(b).) Any doubts in applying section 2033.300 must be resolved in favor of th...

Excerpt: ...ed in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in ...

Excerpt: ...ope of the mandatory provision, include . . . a dismissal following the sustaining of a demurrer without leave to amend on the ground the statute of limitations had run . . . .” (Jackson, supra, 32 Cal.App.5th at p. 175.) Nor has plaintiff shown discretionary relief is appropriate. (See Code Civ. Proc., § 473, subd. (b).) “A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such...

Excerpt: ...ld three years ago that Brian Schear was not the alter ego of Schear, Inc., the subsequent events establish that the Court should grant this motion. Alter Ego: Code of Civil Procedure “Section 187 grants every court the power and authority to carry its jurisdiction into effect. [Citation.] This includes the authority to amend a judgment to add an alter ego of an original judgment debtor, and thereby make the additional judgment debtor liable on...

Excerpt: ...l motion to strike is granted against plaintiffs Cheryl Pesci (individually), Patty Johnson, and Marianne Klee. These three plaintiffs shall pay $2340 in reasonable attorney fees to defendants. (See Code Civ. Proc., § 425.16, subd. (c).) The motion is denied against plaintiffs Robert Pesci (through his guardian Cheryl Pesci) and Jim Pesci. Defendants met their initial burden to show that the 1st cause of action for malicious prosecution is based...

Excerpt: ...nti-SLAPP motion was frivolous – that is, totally and completely without merit and brought in bad faith. (See Code Civ. Proc., §§ 128.5, subd. (b)(2), 425.16, subd. (c)(1); see also Moore v. Shaw (2004) 116 Cal.App.4th 182, 199 (Moore); Visher v. City of Malibu (2005) 126 Cal.App.4th 364, 371 [“‘trial court may infer subjective bad faith from the pursuit of a frivolous tactic'”].) For 25 years, case law is clear that anti-SLAPP motions ...

Excerpt: ...) 432 U.S. 333; see also 9/9/19 minute order.) The TAC still fails to allege facts showing the third Hunt factor: “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Hunt, supra, 432 U.S. at p. 343.) While plaintiff has narrowed its claims and prayer for relief, the TAC still requires hundreds of minitrials to determine to whether defendants violated any particular member's d...

Excerpt: ...ere, as here, the running of the statute clearly and affirmatively appears from the dates alleged in the Complaint, the Plaintiffs bear the burden of pleading and proving they did not discover, or have reason to discover, the claim sooner. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472 [internal citations omitted].) In addition, “plaintiff also must plead ‘facts showing that he was not negligent in failing to make the discovery...

Excerpt: ...ant DRSS-1 LLC's First Amended Cross- Complaint Against Santa Ana Regional Water Quality Control Board and Orange County Water District 4) Cross-Defendant Santa Ana Regional Water Quality Control Board's Notice of Demurrer and Demurrer to Defendant DRSS-1's First Amended Cross-Complaint 5) Defendant/Cross-Complainant DRSS-1, LLC and Defendant GE Aviation Systems, LLC's Motion to Sever and Stay the Orange County Water District's Claims Against DRS...

Excerpt: ...anges, deletions, and additions must be submitted as well. Late papers will not be accepted. 1. The current version of the settlement agreement provides, at ¶ 44, that settlement payments “shall be secured by a lien against all of the Defendant's assets, junior only to the existing line in favor of Bank of the West.” Included as Exhibit B to the current version of the settlement is the security agreement that creates this lien. Section 1 of ...

Excerpt: ...ed the moving papers to plaintiff on 9-4-19. (Notice of motion at 2:16-17.) However, there is no proof of service on this date, and no other evidence that defendant in fact served the moving papers on this date; defendant attorney's declaration is silent on this point. [On the other hand, plaintiff's opposition does not dispute “safe harbor” compliance.] Second, defendant has not shown that the complaint violates CCP 128.7(b). Defendant argue...

Excerpt: ...as the burden to demonstrate both violation of the court's orders, and that such violation was willful. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4 th 486, 495). The court finds that defendant's evidence establishes violation of at least two different court orders by plaintiff to provide discovery, and that the plaintiff's failure to comply was willful. The evidence also establishes a pattern of conduct by plaintiff designed...

Excerpt: ...for Production, Set One; and Request for Sanctions Against Defendant IEC Corporation and Its Attorneys of Record, Call & Jensen, in the Amount of $3,210.00 4)Defendants IEC Corporation and United Education Institute's Motion to Compel Plaintiff Richard Mateos' Further Responses to Requests for Admissions Before the Court are four motions to compel further responses discovery, each of which requests sanctions. The Court rules on each of the four m...

Excerpt: ...S Plaintiff moves to compel further response to request for admission no. 1. The court exercises its discretion to consider the parties' untimely filed opposition and reply to the motion to compel further response to request for admission. Pursuant to Code of Civil Procedure section 2033.290, subdivision (a), a party may move for an order compelling a further response to requests for admission if that party deems that either or both of the follow...

Excerpt: ...5 th Rock, LLC and EXP U.S. Services, Inc.) is GRANTED. Drum's application for determination of good faith settlement is DENIED. I. Factual Background In the complaint in this construction defect action, the current owner of the Hard Rock Hotel in San Diego, T-12 Three, LLC, sued both Turner (the general contractor on the hotel project) and 5 th Rock (the prior owner of the hotel, and the party that hired Turner to build the hotel) for defect-rel...

Excerpt: ...use Plaintiff failed to timely file a torts claim with OCFA and the court denied the application for relief. Failure to timely present a claim to a public entity bars the lawsuit, “ ‘even in face of the public entity's actual knowledge of the circumstances surrounding the claim.' “ (California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4th 1581, 1591.) This motion to quash is not the proper vehicle to determine wh...

Excerpt: ...ng relief from default.” (Ibid.) If a party moves promptly for default relief, or if the granting of the relief from default will not prejudice the opposing party (other than losing the advantage of the default), only slight evidence will justify an order granting such relief. (Iott v. Franklin (1988) 206 Cal.App.3d 521, 526.) Code of Civil Procedure section 473, subdivision (b), permits a court to grant relief from a judgment, dismissal, order...

Excerpt: ...ry 14, 2020, without a proof of service. On January 15, 2020, they filed a notice of errata with respect to the opposition that contained a proof of service showing mail service on January 15, 2020. The Court has considered the opposition, but admonishes Plaintiffs' counsel to timely-file and properly serve papers in future motions. Plaintiffs may recover exemplary damages in an action for the breach of an obligation not arising from contract if ...

Excerpt: ...iled 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.) Code of Civil Procedure section 473, subdivision (b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect” so long as t...

Excerpt: ...default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff's right of action; he cannot thereafter, until such default is set aside in a proper proceeding, file pleadings or move for a new trial or demand notice of subsequent proceedings.'” Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385–386. If Plaintiff had not taken Defendant's default, then the Court ...

Excerpt: ...e probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). If an action is against a defendant who is natural person, an attachment may be issued only on a claim which arises out of the conduct by the def...

Excerpt: ...LC, after the loan servicing was transferred. 2. Other Causes of Action The motion of this defendant for judgment on the pleadings as to the remaining causes of action is DENIED. Nearly 25 years ago the plaintiff and his then-spouse (a defaulted defendant here) were involved in a marital dissolution. During the distribution of assets and debts, a dispute arose over encumbrances placed on certain real property by the wife. The issue was litigated ...

Excerpt: ...ration of Due Diligence filed with the Proof of Service seems to contradict Item 6 of the Application for Writ of Possession and Declaration of Blong Vang ¶11. The Declaration of Due Diligence signed by the process server, Laurie Evans, indicates that service could not be made at 718 Huntington Street, Huntington Beach, CA because it is a sober living home, only women live there, and no mail for defendant goes there. She also indicates that the ...

Excerpt: ...10.00. Defendants did not file oppositions. For the following reasons, Plaintiff Brian Sax's application against Convergence is granted in the amount of $912,630.68; Plaintiff Brian Sax's application against T. Hirou is granted in the amount of $665,327.00; and Plaintiff Elliot Sax's application against Convergence is granted in the amount of $50,000.00. Plaintiffs' applications are denied in all other respects. A court shall issue a right to att...

Excerpt: ...r of consumer goods sold in California and for which the manufacturer has made an express warranty shall “[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.” Defendant contends that Plaintiffs failed to set forth what service literature and replacement parts were unavailable. A review of the Complaint reveals that the claim does...

Excerpt: ...ainst whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (Emphasis added.) Here, the First Amended Cross-Complaint was filed on 8/28/19. The proof of service indicates service by email and mail. Yet, the instant demurrer was not filed until 48 days later on 10/15/19. Thus, the demurrer is untimely. Nonetheless, the Court, in its di...

Excerpt: ...l be filed (Code Civ. Proc., § 404), or nothing will be done. Demurrer (HDR Engineering) The demurrer of defendant HDR Engineering, Inc., to the second, fifth, and sixth causes of action of the first amended complaint (ROA 32) is OVERRULED with 15 days to answer. Second Cause of Action (Negligent Misrepresentation) Each element of a cause of action for negligent misrepresentation generally must be alleged with a specificity that shows how, when,...

Excerpt: ... 2020. A corrected Notice was thereafter served on October 30, 2019, which provided sufficient notice pursuant to C.C.P. §1005. While Cross-Complainant is correct in asserting mail service on October 15, 2019 provided insufficient notice for a November 7, 2019 hearing, this issue has since been mooted. The Demurrer to the Third Cause of Action for Interference with Contractual Relations is SUSTAINED, as Cross-Complainant has not properly pled a ...

Excerpt: ...rovide a redline copy of the amended notice. 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.” (Williams v. Superior Court (2017) 3 Cal.5th 53...

Excerpt: ...D Nos. 21, 24-27, 30-31 with similar boilerplate objections: No. 21: Communications between YOU and MARTIN. No. 24/26: Communications between YOU and CROSS-DEFENDANTS. No. 25: Communications between YOU and SANDLER. No. 27: Communications referring to defendant. No. 30: Documents prepared by MARTIN in connection with underlying litigation. No. 31: Communications that include MARTIN. Response: “Objection, this request seeks documents which are n...

Excerpt: ...d their sureties, Michael B. Martin, Scott Hook, and Eric Mooney, is GRANTED. The motion is brought under Code of Civil Procedure §996.440, which states as follows: (a) If a bond is given in an action or proceeding, the liability on the bond may be enforced on motion made in the court without the necessity of an independent action. (b) The motion shall not be made until after entry of the final judgment in the action or proceeding in which the b...

Excerpt: ...nt bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment...

Excerpt: ... the insurer directed or authorized the agent to perform the tortious acts, or it ratifies acts it did not originally authorize.” (R & B Auto Center, Inc. v. Farmers Grp., Inc. (2006) 140 Cal.App.4th 327, 344; Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal.App.3d 513, 518-523.) Further, in California, only licensed life insurance agents are authorized to transact life insurance business. (Cal Ins. Code §§ 32(a); 1622(a)....

Excerpt: ....D. for Terminating Sanctions for Failure to Obey Discovery Orders: Defendant Lam Dang, MD (“Dang”) moves the court for an order for terminating sanctions by striking plaintiff David Struble's (“Plaintiff”) complaint, or, alternatively, for issue and evidentiary sanctions for willful failure to provide timely verified responses to written discovery pursuant to the court's November 21, 2019 order. Dang also seeks $1,560 in monetary sanctio...

Excerpt: ...n Carlos Fernandez and/or his attorney of record in the amount of $3,128. Specifically, Defendant seeks further responses to the following: a description of the dangerous condition of the property alleged by Plaintiff (No. 1); the location of the dangerous condition (No. 2); all fact, documents, and witnesses to support Plaintiff's dangerous condition contentions (Nos. 3-5); a description or identification of the warnings, sign postings, and main...

Excerpt: ... matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence ….” (Code Civ. Proc., § 2017.010.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....'” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “[D]iscovery must be construed liberally in ...

Excerpt: ...) who heard any statements made about the INCIDENT by any individual at the scene; and (d) who YOU OR ANYONE ACTING ON YOUR BEHALF claim has knowledge of the INCIDENT (except for expert witnesses covered by Code of Civil Procedure section 2034). Defendant's answer to form interrogatory 12.1 is: (a-d) Objection. Vague, ambiguous, and uncertain. Invasion of privacy. Violation of attorney client privilege and attorney work product doctrine. Burdenso...

Excerpt: ...2 are all allowable recoverable costs pursuant to C.C.P. section 1033.5(a)(1), (a)(3)(A), (a)(4), and (a)(11). As such, the burden was on Plaintiff to show that those costs were unreasonable or unnecessary which Plaintiff failed to do. (Jones v. Dumrichob (1988) 63 Cal. App. 4th 1258, 1266 [“If items on their face appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the p...

Excerpt: ...rounds upon which the motion will be made” and specify “the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict.” Although the statute is explicit, at least one appellate court has held that the “notice of motion” to vacate may be sufficient to meet the statutory criteria if it adequately meets section 663a's...

Excerpt: ...no longer good law for the reasons articulated in Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261 at pages 1270 through 1278. Moreover, nothing in Steiner suggests that the obtaining of a writ of attachment limits remedies in tort as against other parties. Here, the proposed amended complaint adds a third party (albeit the spouse of the original defendant) and makes at least one other substantive change. The general rule is that in...

Excerpt: ...on (CCP § 430.10(e)) Facts/Overview: The original complaint in this action was filed on 4/8/19. The operative verified First Amended Complaint was filed on 9/5/19 against defendants Servis One, Inc., dba BSI Financial Services [“BSI”], Wilmington Savings Fund Society, FSB, dba Christina Trust, as Trustee, for Brougham Fund I Trust, Zieve, Brodnax & Steele, LLP, Wells Fargo Bank, N.A. s/b/m Wachovia Mortgage, FSB f/k/a World Savings Bank, FSB...

Excerpt: ... were and how they could be used to deprive her of ownership of her real property and assets; She also denies signing two separate deeds on 10/12/18 that purportedly bear her signature; She now claims to be homeless; This is sufficient to support her claim for elder abuse; Overrule; 2 nd cause of action [fraud v Debra and Elmer Stone]: The intentional misrepresentations are unclear and not pled with the required specificity; Sustain with 10 days ...

Excerpt: ...supposed to be part of the contract price. Plaintiff filed her complaint against Defendant on 10/11/17, alleging causes of action for: (1) Breach of Contract and (2) General Negligence. Defendant answered the complaint on 01/09/18 and filed a cross-complaint against Plaintiff, alleging causes of action for: (1) Breach of Contract and (2) Common Counts. The cross-complaint alleges that Plaintiff failed to allow Defendant to finish the job, claimin...

Excerpt: ...ne; Applies to Bar Plaintiffs' Negligence/Premises Liability Causes of Action; 3. Plaintiffs' Negligent/Premises Liability Causes of Action are barred, as Plaintiffs cannot establish that Superior had a duty, as there is no foreseeability of this third party criminal assault; 4. Plaintiffs' have no facts or theories to support a Cause of Action for Intentional Infliction of Emotional Distress ("IIED"); 5. Plaintiffs' cannot seek Punitive Damages ...

Excerpt: ... interest that overcomes the right of public access to the record.” Rule 2.550(d)(1). The Court is unaware of any case in which sealing of a damages allegation or a cause of action not involving confidential or private information has been allowed. Defendants fail to point to anything comparable to the types of disclosures that California courts have found to qualify as “overriding interests.” (See, e.g., NBC Subsidiary (KNBC TV), Inc. v. S...

Excerpt: ...y judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A "party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A p...

Excerpt: ...eek fees in the following amounts: Baldwin Park ($45,875); Rancho Palos Verde ($17,763.50); Signal Hill ($14,968); Carson ($8,122.50); and West Covina, Lakewood, Santa Fe Springs and Clarement (total of $363,180). This matter is currently on appeal. The notices of appeal automatically stayed proceedings on the judgment. Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727 (perfecting of an appeal stays proceedings in the trial court upon th...

Excerpt: ...es from respondents in the amount of $126,600. This matter is currently on appeal. The notices of appeal automatically stayed proceedings on the judgment. Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727 (perfecting of an appeal stays proceedings in the trial court upon the judgment granting a writ of mandate].) However, that stay does not divest the court of jurisdiction to consider these motions for fees. Robertson v. Rodriguez (1995)...

Excerpt: ...0) 184 Cal.App.4th 1422, 1428.) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Id. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. (Higgins v. Del Faro (1981) 123 CA3d 558, 564- 565.) Cabrillo seeks leave to amend the Cross-Complaint to add causes of action for breach of implied duty to perform ...

Excerpt: ...rt a meritorious cause of action or defense. The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only...

Excerpt: ...Civ. Proc., § 2025.420, subd. (a).) The motion shall be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., § 2025.420, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) The protective order may i...

Excerpt: ... motion for summary judgment. The requests are 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 papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a.) Plaintiff's Separate Statement is Noncompliant Plaintiff filed a document entitled “Plaintiff Jason Gardner's...

Excerpt: ...agraph 10 permitted limited discovery. Interrogatories was limited to identification of witness. Request for Production was limited to 25 requests. Depositions consisted of two eight-hour depositions of fact witnesses and one two eight-hour deposition of expert witnesses. Upon request of the parties, the arbitrator had authority to allow additional discovery. “The arbitration will be administered by the American Arbitration Association (‘AAA'...

Excerpt: ...off calendar. The Trial and Pre-Trial Conference are vacated. The court sets a Review Hearing for March 19, 2020 at 1:30 p.m. to ensure the submission of a proposed Judgment. It is settled law in California that an insurer denying or delaying the payment of policy benefits due to the existence of a genuine dispute with its insured as to the amount of the insured's coverage claim is not liable in bad faith. Chateau Chamberay Homeowners Assn. v. As...

Excerpt: ...ettlement agreement and/or proposed notice is submitted, a redline version showing all changes, deletions and additions must be submitted as well, including proof of service of the revised agreement on the LWDA Per the supplemental briefing, Plaintiff's valuation was based on a maximum exposure of $821,444, which was in turn based on alleged Labor Code violations affecting 65 employees over the period from August 15, 2015 to October 2016. The pre...

Excerpt: ...for release of records. The motion is granted in part. The motion was properly served upon Bonar Law Group. No opposition was filed by Bonar Law Group. Plaintiff opposed the motion, but only as to the request for an order compelling him to execute authorization for release of records. Here, the subpoena seeks non-privileged records. (See Exh. B.) Therefore, Bonar Law Group's concerns of attorney-client privilege and attorney work product, are unw...

Excerpt: ...framework for evaluating potential invasions of privacy, explaining: “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Id. at 552). “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party se...

Excerpt: ...010) 559 U.S. 662, 686; Kinecta Alternative Financial Solutions, Inc. v. Superior Court (2012) 205 Cal. App. 4th 506, 510-11. This action is ordered stayed pending completion of the arbitration. The Case Management Conference set for March 20, 2020 is ordered off calendar. A Post-Arbitration Review Hearing is set for July 17, 2020 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a contin...

Excerpt: ...ndi R Schwartz's Motion Compelling Defendant American General Life Insurance Company to Produce Further Documents in Response to Plaintiff's Document Demands 4) Plaintiff Sindi R Schwartz's Motion For Order Compelling Defendant American General Life Insurance Company to Produce Unredacted Emails Produced at Deposition in Response to Plaintiff's Document Demands Plaintiff Sindi R. Schwartz originally had four discovery motions (ROAs 288, 293, 304,...

Excerpt: ...equest for judicial notice of the FAC in this action (ROA 25) is GRANTED. Plaintiff's evidentiary objections to the declaration of Albert Reynaldo (ROA 38) are OVERRULED. The discrepancies Plaintiff identifies between Mr. Reynaldo's declaration filed in support of the present petition (ROA 16) and his subsequent deposition testimony (Hatcher Decl. (ROA 39), Ex. A) go to weight, not admissibility. I. Factual Background A. Plaintiff's Hiring On Feb...

Excerpt: ...bey an order compelling answers to 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, ...

Excerpt: ... court case, Horner v. Bank of New York Mellon, Case No. 8:16-cv-00557-CJC-DFM (USDC C.D. Cal.), and the other recorded in connection with this case. At any time after recording of a lis pendens, any party affected by it may apply “to the court in which the action is pending to expunge the notice.” Code Civ. Proc. §405.30. The person filing the lis pendens has the burden of proof to show that the lis pendens should not be expunged. Code Civ....

Excerpt: ... motion is denied. Special Interrogatories Nos. 48 through 55 seek (i) the identities (defined as names, last known residence and employment addresses, and telephone numbers) of each resident of Defendant's skilled nursing facility during the approximately three weeks (see Brief at 4:14- 16) Plaintiff resided at the facility; (ii) the identities of each “responsible party” (defined in a lengthy definition set forth in the interrogatories, and...

Excerpt: ...sibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) However, “[c]ourts must insist discovery devices be used as tools to facilitate litigati...

Excerpt: ...otions meet the first prong. The third cause of action alleges protected activity under the First Amendment; i.e., the filing of an FPPC complaint during an election campaign about election activity. It is further undisputed that the third cause of action must be stricken because the filing of an FPPC complaint, even one that may contain false allegations, is protected speech that may not be subject to judicial oversight. The first two causes of ...

Excerpt: ..., the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.' [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, fn. omitted.) Protected activity: ...

Excerpt: ...andings. On 08/16/19, this Court adopted the discovery referee's recommendation to strike defendants' answer to the operative pleading (3rd Amended Complaint), as well as their cross-complaint, following a series of discovery abuses. On 09/18/19, this Court entered a signed order striking defendants' appearances, and ordering defendants to pay fees for the discovery referee. Thereafter, plaintiffs filed and served default prove-up packages. Befor...

Excerpt: ...use of action is for legal malpractice. “If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.” Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, 18 Cal.4th 739, 749–750 (1998). Here, the all...

Excerpt: ...� 1102.5, violation of Labor Code § 6301, failure to authorize and provide meal and rest breaks, and wrongful termination in violation of public policy, respectively. Civil Code § 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means condu...

Excerpt: ...on stating facts showing that the actions are complex, as defined by the Judicial Council and that the actions meet the standards specified in Section 404.1.” (Code Civ. Proc., § 404; Ford Motor Warranty Cases (2017) 11 Cal.App.5th 626, 634.) Petitioner has not established the Phan Action is complex. The Phan Action only involves three parties. The complaint filed by Robert Phan alleges that Phan gave Linh and Vy Nguyen a $52,000 loan, which t...

Excerpt: ...erd Industries v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4 th 1568, 1588 A motion for leave to complete discovery closer to trial must be accompanied by a meet/confer declaration. [CCP §2024.050(a)] One of the factors to be considered by the court in making its discretionary ruling is “[t]he diligence or lack of diligence of the party seeking discovery or the hearing of the motion, and the reasons that discovery was not completed or...