Excerpt: ... it. Each side then explains what the various marks, and absence of marks, meant relative to that paragraph and the agreement. The plaintiff even accuses defendant Wendy Alexander of submitting a fabricated version of the agreement with a check mark next to Paragraph 6.6. She demands that Alexander bring the original to court, and she proposes to testify at the law and motion hearing, apparently to prove the document was altered. Alexander oppose...

Excerpt: ...r money had and received and the second issue relates to the claim for punitive damages in the sixth cause of action for fraud. The motion is moot with respect to the first issue, because plaintiff dismissed the fifth cause of action for money had and received on January 2, 2020. With regard to the second issue, defendants contend that the claim for punitive damages fails because the gravamen of plaintiff's claim is really for breach of contract ...

Excerpt: ...s notice of motion for sanctions pursuant to section 128.7. Alliance appears to concede that the notice of motion served on October 28, 2019 did not contain a hearing date, ostensibly because Alliance could not reserve a hearing date more than 24 hours in advance, but the statute requires a 21-day safe harbor period. See Salisian Supp. Decl. ¶¶ 13-16. Alliance does not address why this issue could not have been raised with the court or court st...

Excerpt: ...th, that are frivolous or solely intended to cause unnecessary delay.” To warrant sanctions under section 128.7(b)(1), a paper presented to the court must be presented “primarily” for an improper purpose. Cal. Civ. Proc. Code, § 128.7(b)(1). Sanctions may be imposed pursuant to section 128.7(b)(2) if a paper contains a claim, defense, or other legal contention that is not warranted by existing law or by nonfrivolous argument for the extens...

Excerpt: ... utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.” “When the Legislature enacted section 7031(b), courts had long held that a contractor was not entitled to any compensation for any work performed unless the contractor was licensed during the entire project (absent a sh...

Excerpt: ...e only if the matter is reasonably beyond dispute. Post v. Prati (1979) 90 Cal.App.3d 626, 633, 153. Furthermore, matters subject to judicial notice have the same requirement of relevancy as any evidence sought to be introduced at trial. People v. Rowland (1992) 4 Cal.4 th 238, 268, n6; Evid. C. 350. The party making the request for judicial notice must also supply the court will sufficient information and source material to enable the court to d...

Excerpt: ...(See Plff's Opp. RJN; see also Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1483; El Escorial Owners' Ass'n v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1350.) Wavy Clothing objects to judicial notice of the license information presented by the Plaintiff, but in the reply, Wavy offers the Court similar data and from a similar source (See Reply, RJN.) The Court will not address the licens...

Excerpt: ...fourth cause of action alleges trespass. This is a new cause of action that did not appear in Plaintiff's Complaint. Defendant correctly argues that following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4 th 1018, 1023. A plaintiff may not amend a complaint to a...

Excerpt: ...o this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) “Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that...

Excerpt: ...Response” to Form Interrogatory No. 15.1 on 5-24-19. On 8-6-19 the Court granted Plaintiff Raquel Pineda's unopposed motion to compel a further response to form interrogatory 15.1. On 8-20-19 Defendant served Further Supplemental Responses. Raquel appears to argue that despite these additional responses, Defendant has failed to comply with the Court's 4-15-19 and 8-6-19 Orders because such responses are still deficient. This is not well-taken. ...

Excerpt: ...iff alleges that beginning on 2/9/16, Defendant breached the agreement by failing to pay for legal services in the sum of $247,290.44. Plaintiff filed its complaint on 7/24/19 against Defendant. The complaint alleges causes of action for: Breach of Contract; (2) Common Counts; (3) Account Stated; and (4) Quantum Meruit. The case is set for a continued CMC on 1/15/20. No trial date has been set. Analysis: Improper Extrinsic Evidence A demurrer is ...

Excerpt: ...p Place, Canyon Lake, CA 92587, as requested by Plaintiff. (Evid. Code, § 452(c) and (h).) Demurrer: The Judgment entered on March 8, 2016 in the Family Law Case was pursuant to Stipulated Judgment and addressed child custody/visitation/support, spousal support, division of community property, including the Canyon Lake Property and Mission Viejo Property, vehicles, personal items, debts, and costs in the divorce. (Defendant's RFJN, Exh. B, Stipu...

Excerpt: ...eat and ignite. As a result of the damage, the pole was burned due to a fire which ignited on the Anaheim Utilities Electrical Installation attached to the Pole, causing severe damage to the SCE Pole. MOTION NO. 1, DEMURRER TO FIRST AMENDED COMPLAINT: Plaintiff Southern California Edison Company and defendant City of Anaheim have stipulated to permit plaintiff to file a Second Amended Complaint and that plaintiff will do so once the court has sig...

Excerpt: ...wherein Plaintiff agreed to loan Defendant JB FIBER the principal sum of $35,902.05; Defendant JB FIBER agreed to make 60 monthly payments of $820.48 payable on the 2 nd of each month beginning on 9-2-16; that the last payment received by Plaintiff from Defendant JB FIBER pursuant to the VFA was on 12-2-17; that on 1-2-18, Defendant JB FIBER was in breach of the VFA for failing to make the requisite monthly payment; and that Defendant JB FIBER's ...

Excerpt: ...was struck by a vehicle driven by defendant Harris and owned by defendant O'Connell, while Harris was in the course and scope of employment. 2. County of Orange v. Harris, OCSC Case No. 2018-01033469 The complaint, filed on 11/19/18 by plaintiff County of Orange against defendants Steven A. Harris, O'Connell Landscape Maintenance, Inc., and Preston Edward Nunez-Ruiz, seeks subrogation for workers' compensation benefits paid to plaintiff Jennifer ...

Excerpt: ... order in the amount of $440,308.14 Moving Party contends as follows: ParPro is a company specializing in electronics manufacturing services in the medical, aerospace/defense, industrial, and computing/communications markets. (K. Knight Decl. in support of Petition [“ParPro Dec.”], Para. 2.) Respondent Rogerson Kratos Corporation [“Rogerson”] is, and has been, a customer of ParPro - particularly with respect to aerospace electronics manuf...

Excerpt: ...onetary sanctions. Motion #2: To compel defendant Artelier to provide further responses to Request for Production of Documents, Set One, Nos. 1-8, 11, 13-24, 27-39, 41-45, 49, 50, 53, 54, 56- 58; and for monetary sanctions. Facts/Overview: On 7/23/18, plaintiff Forespar Productions Corporation [“Forespar”] filed a complaint against defendants Artelier Studio, LLC [“Artelier”], Henry Goldman, Richard Joseph Benveniste, and Joseph Fitzgeral...

Excerpt: ... to Plaintiff's Inspection Demand, Set No. 1, and imposition of $2,134.95 in monetary sanctions against Defendant. Motion No. 3. For issuance of an order deeming Plaintiff's Requests For Admissions, Set No. 1, admitted against Defendant San Jacinto Z, LLC and imposition of $2,134.95 in monetary sanctions against Defendant. Motion No. 4. For issuance of an order deeming Plaintiff's Requests For Admissions, Set No. 2, admitted against Defendant San...

Excerpt: ...n to an LLC in 2012 and general questions regarding LLC issues; Ganatra also attempts to offer hearsay testimony that a]Moore assisted with a buy out of the third owner of Poseidon, b]a ‘love contract', c]company software, and d]potentially suing employees; No evidence was presented to find that Moore had an attorney client relationship with Ruskey, either individually or as a shareholder of BrandRep; Finally, Ruskey argues for the first time o...

Excerpt: ... 1-10. The court OVERRULES Respondent's Objections to [Petitioner's] Requests for Judicial Notice, filed on 10-15-19 (ROA No. 108). Respondent's Request for Judicial Notice: The court GRANTS Respondent's Request for Judicial Notice, filed on 10-15-19 (ROA No. 109) and 10-16-19 (ROA No. 104), pursuant to Evidence Code section 452, subdivisions (d) and (h), as to Exhibits A, B, C, and D. Petitioner's Evidentiary Objections (filed on 10-29-19 under ...

Excerpt: ...against the Cross-Complainants (filed on 5-7-19 under ROA No. 469.) Code of Civil Procedure section 916, subdivision (a), states, “Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may...

Excerpt: ...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 material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more...

Excerpt: ... Third Cause of Action (Fraud). The demurrer to the third cause of action for fraud is sustained with leave to amend. Active concealment or suppression of facts is the equivalent of actual fraud. (Civ. Code, § 1572(3).) The elements of a cause of action for fraudulent concealment are: (i) concealment or suppression of a material fact; (ii) by a defendant with a duty to disclose the fact to the plaintiff; (iii) defendant's intent to defraud plain...

Excerpt: ...nd/or Summary Adjudication is DENIED. Motion No. 1: Defendant C.G. Landscape, Inc.: An answer to the complaint is required to make “A statement of any new matter constituting a defense.” (CCP 431.30 (b) (2)). “'[A]ny issue on which defendant bears the burden of proof at trial is ‘new matter' and must be specially pleaded in the answer.'” Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 756. On 4/30/18, Defend...

Excerpt: ...ff, within 30 days, the sum of $1,225, which is the amount the Court finds reasonable. The Request for Judicial Notice is denied as unnecessary. (See Cal. Prac. Guide, Civil Procedure before Trial §9:53.1a (“It is not necessary to ask the court to take judicial notice of materials previously filed in the case”; all that is necessary is to call the court's attention to such papers. Such papers however, are not necessarily admissible evidence....

Excerpt: ...e interrogatories to request the identity and location of those with knowledge of discoverable matters.”). The party responding to interrogatories must answer in a manner as “complete and straightforward as the information reasonably available” permits; if the interrogatory cannot be answered completely, then it must be answered to the extent possible. Code Civ. Proc. § 2030.220(b). A party may file a motion to compel further responses to ...

Excerpt: ...o arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement--either fraud in the execution...

Excerpt: ... overbroad, vague and ambiguous, seeks information outside the scope of discovery, and violates the privacy rights of both ASAS and Sadruddin; (2) the subpoena is overbroad, vague and ambiguous because it refers to “any named parties or entities” without defining who those named parties or entities are; (3) the subpoena is premature because it seeks Defendants' financial information in violation of Civil Code section 3295(c) and because there...

Excerpt: ...arch 21, 2015 through the date of production. Plaintiff/Cross-Defendant Kevin Garcia (“Garcia”) subpoena seeks documents protected by Defendant/Cross-Complainant Martin Arteaga's (“Arteaga”) right to privacy. (Fortunato v. Superior Ct. (2003) 114 Cal.App.4th 475, 480-81 [financial records are protected by individual's right to privacy]; Valley Bank of Nev. v. Superior Ct. (1975) 15 Cal.3d 652, 656 [individual has right to privacy in his o...

Excerpt: ...r Code Civ. Proc. § 425.16(c)(1) after Dismissal Section 425.16 of the Code of Civil Procedure (“CCP”) provides that a prevailing defendant on a special motion to strike is entitled to recover reasonable attorney fees and costs. Code Civ. Proc. § 425.16(c); City of Los Angeles v. Animal Defense League (2006) 135 Cal. App. 4th 606, 627. When a plaintiff voluntarily dismisses the action after the SLAPP motion has been filed and before the tri...

Excerpt: ...ply with Corporations Code section 2105, the court sustained the demurrers of Defendants DynaPass, Inc. (“DynaPass”) and Miguel Medina (“Medina”) (together, “Defendants”) on the basis that Plaintiffs lacked capacity to maintain the instant action. (Id.) On May 13, 2019, Plaintiffs filed their Fourth Amended Complaint (“4AC”). Defendants demur to the 4AC, inter alia, on the grounds that Plaintiffs lack capacity to sue. California l...

Excerpt: ...p. (2015) 242 Cal.App.4th 651, 659-660.) However, the truth of statements “may be accepted when made by a party but not those of third parties or an opponent.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.) In addition, “the contents of a document may only be accepted ‘where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.'…And the general rule is that the truthfu...

Excerpt: ...cate any intent to seek relief pursuant to this provision. Applying the 3-year statute of limitation, the Complaint makes clear Plaintiffs were entitled to a reconveyance on or about July of 2015. (See ¶14 of the Complaint). While Plaintiffs' Opposition asserts the claim did not accrue until 2019, when Plaintiffs incurred legal costs in pursuing this action, the Complaint alleges the Deed of Trust damaged Plaintiffs by impairing the “vendibili...

Excerpt: ... beyond a broken contractual promise,” in order to recover tort damages]; see also Aas v. Superior Court (2000) 24 Cal.4th 627, 632 [economic loss rule bars an action in tort for purely economic losses in the absence of personal injury or damage to property other than the product itself], superseded by statute in construction defect actions as stated in Burch v. Superior Court (2014) 223 Cal.App.4th 1411, 1417; KB Home v. Superior Court (2003) ...

Excerpt: ...nctions pursuant to CCP § 128.7. This petition arises out of a Coastal Development Permit (“CDP”) relating to a development in Laguna Beach. The CDP has already been the subject of various challenges and litigation by Petitioner, including two prior petitions in Orange County Superior Court. Amended Petition, ¶¶ 15-30. The underlying CDP was approved, with conditions, on August 9, 2017. Amended Petition, ¶¶ 2, 10-23, 29 and 36. The condi...

Excerpt: ... 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. (Code Civ. Proc., § 437c(p)(2); Aguilar, 25 Cal.4th ...

Excerpt: ...ld 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 prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his ...

Excerpt: ... 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 i...

Excerpt: ...essary 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.) “[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 to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima ...

Excerpt: ...l notice is GRANTED. Defendant has filed evidentiary objections (ROA 73) to Plaintiff's declaration in support of her opposition (ROA 68). Objections 1 and 3 are SUSTAINED. Objections 2 and 4 are OVERRULED. GROUNDS FOR RULING This is a putative wage-and-hour class/PAGA action in which Plaintiff alleges she and other employees of Defendant were regularly forced to work off the clock and were denied meal and rest breaks. She brings substantive clai...

Excerpt: ...at p. 2.) Instead, Defendant offered to supplement responses on the condition that Plaintiff respond to a settlement offer by the next business day. (Id.) Plaintiff's decision not to accept that conditional offer does not evidence a failure to meet and confer in good faith. Code of Civil Procedure section 2033.220 provides that should the responding party give lack of information or knowledge as a reason for failure to admit all or part of an RFA...

Excerpt: ...g document requests and interrogatories, and defendants ask that these motions be continued to give them a chance to review plaintiffs' supplemental responses. Plaintiffs and the moving party defendants must file declarations or other papers at least two weeks before the new hearing date advising the court if these motions are still going forward, and if so, as to what issues. The tentative ruling is to continue the hearing on plaintiffs' Applica...

Excerpt: ...n the alternative, summary adjudication of the 1st-4th c/a against Plaintiffs William and Louise Debnam on the ground that in connection with a separate case relating to the servicing of the loan which forms the basis of the claims in this action, Los Angeles Superior Court Case No. YC072073, the Debnams waived all claims against Defendant. Exhibit 9 submitted in support of the motion establishes that on 11/8/17, William and Louise Debnam entered...

Excerpt: ...resentation of CTI and interests adverse to CTI. In the Mesa case Catanzarite is representing the plaintiffs in a derivative action on behalf of CTI, meaning that his representation is for the benefit of CTI. Thus, the same principles that warranted Catanzarite's disqualification in the FinCanna case apply to the Mesa case and compel disqualification here. The pending motion in the FinCanna case is to disqualify Catanzarite from representing thre...

Excerpt: ...urt assumes the parties' familiarity with the background of this long-running matter. This ruling sets forth only the facts necessary to dispose of the present motion. Through this motion, Cross-Defendants seek to recover an additional $926,000 in attorney's fees, which are broken down into three categories: “(1) attorney's fees incurred by Child and Amberhill, but not previously awarded, defending against claims concerning the SRA and claims f...

Excerpt: ...ific cause of action therein. (See Cal. R. Ct. Rule 3.1320(a).) As Plaintiffs correctly point out, Defendant's Demurrer is procedurally defective since he only demurred to the First Cause of Action. ROA 27. However, because Defendant did advise Plaintiff that he would demurrer to each cause of action (Supp. Jain Decl., Ex. A.) and included these arguments in his supporting memorandum, the Court exercises its discretion to consider the merits of D...

Excerpt: ...gs Plaintiffs have filed. That being said, the proof of mail service attached to the Demurrer itself appears proper. If Defendant seeks to serve by e-mail in the future, it will need to use the proper email address. As to the Demurrer itself, it is sustained pursuant to CCP §§ 430.10(e)-(g). “The [] reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citat...

Excerpt: ...Supplemental Jurisdiction statute, 28 USC § 1367. Under subdivision (a) of Code Civ. Proc. § 1008, any party affected by an order made upon application by the Court “may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior ...

Excerpt: ...ndant to make one payment of $1500 in November 2017, fifteen monthly payments of $3000 starting on 12/01/18, and one final payment of $1492.61 on or before 03/01/19. If defendant made late payments, plaintiff was authorized to collect a $100 late fee per payment. Defendant initially performed and then breached beginning in February 2018, thus damaging plaintiff in the amount of $39,255.70 plus interest from 01/05/18, late fees, and attorney's fee...

Excerpt: ...n of the United States and constitution of California, and any other financial privacy laws. Responding Party further objects to this interrogatory on the grounds that it is vague, ambiguous, burdensome, oppressive, not complete in and of itself, calls for the preparation of a compilation, and not reasonably calculated to lead to the discovery of admissible evidence. Kuhar's burden on this Motion is to justify any objection or failure to fully an...

Excerpt: ... manner. Each party shall select and appoint one arbitrator. The two arbitrators so appointed shall select and appoint a third arbitrator. The decision in writing of any two of the arbitrators so appointed shall be binding and conclusive as to both parties to this Agreement. Should either party to this Agreement fail to appoint an arbitrator as required by this paragraph within fifteen (15) days after receiving written notice from the other party...

Excerpt: ... M.S. On 9-25-19, plaintiff served a notice for Brualt's deposition on 10-7-19. The notice was sent with a letter asking for alternative dates if 10-7-19 was not available for either Brualt or counsel. On 10-2-19, defendant served an objection to the deposition notice. On 10-8-19, plaintiff's counsel emailed defense counsel and asked that the parties discuss an expert deposition schedule. Defense counsel responded by stating that counsel expected...

Excerpt: ...ll, Shaw & Garcia is GRANTED in part and DENIED in part; and (3) Motion to Compel Further Responses from Defendant Madison Conrad to Requests for Production of Documents, Set One, and for Monetary Sanctions Against Defendant and/or Her Counsel of Record, Patricia Valenzuela of the law firm, McDowell, Shaw & Garcia is GRANTED as set forth below: The motions to compel are GRANTED as to Form Interrogatories (“FI”) Nos. 2.6, 12.4, 16.1, 17.1, 20....

Excerpt: ...(Id. at p. 1233.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate that the exercise of jurisdiction would be unreasonable.” (Jewish Def. Org., Inc. v. Superior Court (1999) 72 Cal. App. 4th 1045, 1054-55). There two types of personal jurisdiction: (1) general jurisdiction; or (2) specific jurisdiction. A court with general jurisdiction may hear any claim agai...

Excerpt: ...entry of judgment. CRC 3.1700; Daniels v. Robbins (2010) 182 Cal.App.4th 204, 228. The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. CRC 3.1700(a)(1). If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burde...

Excerpt: ...cant revenue for either plaintiff or defendant – but not both. Before the Court this day is a motion by plaintiff to secure a further response from defendant to eight (8) categories of documents contained in a first set of RPDs. According to defendant, the responses are Code-compliant. According to plaintiff, the responses are deceptive. The party receiving a demand for production of documents has two legitimate options: (1) move for a protecti...

Excerpt: ...ief discussion of the pertinent case history is helpful. The case began with the Complaint filed by Plaintiff Golden Rain Foundation of Laguna Woods (“Golden Rain”) against Dickinson. Golden Rain ultimately dismissed its Complaint with prejudice on 12/27/2018. In the meantime, however, Dickinson had filed a Cross-Complaint against Plaintiff on 11/14/2018. Shortly after, Dickinson filed a First Amended Cross-Complaint (“FACC”) on 12/12/201...

Excerpt: ...esorts to Godwin's Law: “This was ‘the dog of the Nazis' in World War II. Hitler's dog, ‘Blondie,' was a German Shepherd.” (SAC, Attachment One.) It is not enough to allege that all German shepherds are vicious. (See Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371–1372 [breed characteristics insufficient]; see also Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822 [“Neither do we believe judicial not...

Excerpt: ...ney Parks, Experiences and Products, Inc., are overruled. Moving Defendants demur to the entire complaint based on the contention “there are no factual allegations” against The Walt Disney Company and Disney Parks, Experiences and Products, Inc. The Complaint identifies Defendant The Walt Disney Company as “Doe 1.” The Complaint alleges that all Doe defendants participated in all the events alleged in the Complaint. (Compl. ¶ 38.) Defend...

Excerpt: ...led together and noticed for the same hearing. Filing a motion to strike does not extend the time within which to demur. [CCP § 435(b)(3), (d).] If both a demurrer and motion to strike are filed, they must be filed at the same time and noticed for hearing at the same time. [CRC 3.1322(b)]. Here, Defendant did not ensure that its Motion to Strike was concurrently set with the Demurrer. Further, failure to state facts sufficient to state a cause o...

Excerpt: ...acts that could allege in good faith to cure the defects noted below. The Insurer Defendants demur to Plaintiffs' first cause of action for reformation, second cause of action for declaratory relief, and third cause of action for breach of contract. In their FAC, Plaintiffs allege that the Insurer Defendants were the insurer for Defendants Ryan and Katherine Schierberl (the “Schierberls” or the “Schierberl Defendants”) and, as such, they ...

Excerpt: ... a deed of trust need not be recorded. (See Haynes v. ENC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336-37). The FAC also fails to allege facts showing plaintiffs have standing to challenge the assignment or that plaintiffs offered to tender the disputed loan proceeds. (See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43; Mendoza v. JPMorgan Chase Bank, NA (2016) 6 Cal.App.5th 802)). 2nd cause of action, wr...

Excerpt: ...t; and may, upon like terms, enlarge the time for answer or demurrer. Code Civ. Proc. § 473(a)(1). The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. Code of Civ. Proc. § 473(a)(1). Additionally, any judge, at any time before or a...

Excerpt: ... and Mov. Ex. 11, p. 217-19, 214-15.) Regarding the asserted conversation with Dr. Kang, which happened perhaps in May of 2014, the attributed statements about the hospital being top notch, a good place, the best place, and having high standards (see Mov. Ex. 11 p. 206-207, 210-13, 214-15, 217; Opp. Ex. B, pp. 206-7, 252-53) are too general, vague, and nonspecific to form the basis of actionable fraud. (See Finch v. McKee (1936) 18 Cal.App.2d 90,...

Excerpt: ... the alternative, for summary adjudication on each cause of action, based solely on the primary assumption of risk doctrine. Primary assumption of the risk arises when a plaintiff voluntarily participates in a sport or “other activities involving an inherent risk of injury [ ] where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 658, inter...

Excerpt: ... two agreements. The first was the twelve page Employment Agreement (Exhibit A). The second was the three page Mutual Agreement to Arbitrate Claims (Exhibit B). These do Civ. Code, § 1642 provides that “Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.” When two agreements are entered at roughly the same time, they treated as one transaction...

Excerpt: ...ntry of the judgment. Cal. Civ. Proc. Code § 473(b). This limit is jurisdictional. (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 928 (“This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.”).) Here, Defendant did not file the motion to vacate within 6 months of the March 27, 2019 entry of default. Instead, Defendant filed the motion on Oc...

Excerpt: ...r as it was served by Plaintiff herself, Defendants appear to have received the responses and did not make an issue of the improper proof of service in their reply. This motion was filed and served after the date of service of Plaintiffs responses and is based on CCP §2030.290, which would have been proper if no responses had been served. As responses were served before the present motion was filed, the present motion is moot as argued. If Defen...

Excerpt: ...quest to strike Plaintiffs' class allegations is DENIED. Defendants failed to file a properly noticed motion to strike the class allegations under CCP § 435, instead requesting such relief only in the memorandum in support of their demurrer. As to the 4 th, 5 th and 6 th causes of action, Plaintiffs have sufficiently alleged violations under the applicable Labor Code provisions. The fact that Plaintiffs provide no specifics supporting those clai...

Excerpt: ...orney's fees. Each party shall be permitted to file one supplemental brief, not longer than 8 pages, by January 17, 2020. No replies to the supplemental briefs will be permitted. The continued hearing will take place on January 31, 2020 at 9:00 a.m. in Department CX104. Grounds for Ruling After a jury entered a verdict in Plaintiff's favor in this trade secret dispute, Defendants prevailed on a motion for judgment notwithstanding the verdict. Def...

Excerpt: ... not oppose the motion, it is granted as to Avila and judgment will be entered in CRH's behalf on Avila's complaint. CRH's request for judicial notice of Exhibit E to McDermed declaration re recommended standards of hygiene in dental clinics, is denied as irrelevant to the court's determination of the motion. At the outset, the court notes that CRH's motion does not address any claim of the CDG defendants' cross-complaint. Indeed, the Notice of M...

Excerpt: ...ed the phrase “INCIDENT”. The form interrogatories direct the propounding party to provide a definition of “INCIDENT”. Plaintiff may have done so when propounding the interrogatories, but the definition is not included in the separate statement in violation of Rule 31.345(c)(5) (the separate statement must include, “[i]f necessary, the text of all definitions, instructions, and other matters required to understand each discovery request...

Excerpt: ... seal. A court may order a record to be filed under seal only if it expressly finds facts establishing: 1) There exists an overriding interest that overcomes the right of public access to the record; 2) The overriding interest supports sealing the record; 3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4) The proposed sealing is narrowly tailored; and 5) No less restrictive means ex...

Excerpt: ...expenses and costs to the examinee for travel to the place of examination. Here, good cause is shown. Defendants may reasonably request that the IME be conducted by a physician within a reasonable distance of the venue for trial, to ensure access to the examining physician for trial and to control costs for such physician's attendance. Plaintiff has not shown that any undue burden will result if the requested relief is granted. Citations to worke...

Excerpt: ...ss violation) through allegations like “Secretary Su has directed hearing officers . . . to decide against [plaintiff's members] in all misclassification hearings involving Owner Drivers, no matter the facts or the law.” (SAC ¶ 4; see Hunt v. Washington Apple Advertising Comm'n (1977) 432 U.S. 333.) Even so, the SAC still fails to allege the third Hunt factor: “neither the claim asserted nor the relief requested requires the participation ...

Excerpt: ... Tania filed a “Declaration of Reply to Opposition to Jahangir Baroukh's Demurrer No. 1…” on August 30, 2019. However, it appears that Defendant Tania is not an attorney licensed to practice law in California and thus, she cannot appear on behalf of Defendant Jahangir. (See Bus & Prof Code § 6125 - No person shall practice law in California unless the person is an active licensee of the State Bar.) Accordingly, the reply on behalf of Defen...

Excerpt: ... “ambiguities can be clarified under modern discovery procedures.” (Ibid.) Defendants fail to show the FAC “on its face . . . [is] barred by a statute of limitations.” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007.) “Sometimes, it is difficult for demurrers based on the statute of limitations to succeed because (1) trial and appellate courts treat the demurrer as admitting all material facts properl...

Excerpt: ...where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Beninati v. Black Rock City, LLC (2009) 175 Cal. App. 4th 650, 658, internal citation omitted; see Knight v. Jewett (1992) 3 Cal.4th 296, 314-315; Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1152, 1155-1159.) However, the doctrine of primary assumption of the risk “does not grant unbridled legal immunity to all defendants.” (Campbell v. Dery...

Excerpt: ...t allege that: (i) defendants had a legal duty to use due care; (ii) a breach of such legal duty; and (iii) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) A mortgage broker acts as the borrower's agent and owes a duty to the principal to exercise reasonable skill and care in the exercise of agency duties for the principal's benefit and bests interests. (Thomson v. Cany...

Excerpt: ...end. Defendants' requests for judicial notice are granted. The “sham pleading” doctrine provides that a party will be bound by a prior, unfavorable allegation absent a satisfactory explanation for the change. See Hahn v. Mirda (2007) 147 Cal. App. 4 th 740, 751; State ex rel Metz v. CCC Information Services, Inc. (2007) 149 Cal. App. 4 th 402, 412. Generally, after an amended pleading has been filed, courts will disregard the original pleadin...

Excerpt: ...th, 9 th, and 10 th Causes of Action; SUSTAINED, with 20-days leave to amend, as to the 3 rd through 5 th and 8 th Causes of Action; and OVERRULED as to the 7 th Causes of Action as follows. As to the 2 nd cause of action for breach of implied warranty of habitability, this cause of action fails as a matter of law because Defendant was the real estate broker, not owner/landlord of the subject property at issue (See FAC, ¶¶ 3 and 4.). A breach o...

Excerpt: ...e with all statutory requirements will be expected. On the merits, the motion asserts that the late fees claimed in the Complaint are void and unenforceable as a matter of law, based on Civil Code §1671 and cases applying that statute. However, unless another statute applies or the contract is a consumer contract or lease, under §1671(b) a liquidated damages provision is presumed valid, and the burden is on the party claiming contra to establis...

Excerpt: ...not given leave to amend their 2 nd cause of action for Fraud – False Promise and 4 th cause of action for Civil Conspiracy, as these were entirely new causes of action that were added to the FAC without prior permission of the Court, which is not permitted. Harris v. Wachovia Mortg., FSB (2010) 185 Cal. App. 4th 1018, 1022-23. The 1 st and 3 rd causes of action are based in fraud. “In California, fraud must be pled specifically; general and ...

Excerpt: ... the complaint, and Plaintiff did not oppose. By Minute Order dated 4/29/2019, the Court sustained Defendant's demurrer to all three causes of action, with leave to amend. The Minute Order found that Defendant's demurrer had merit, stating: “Plaintiff fails to allege whether the alleged contract was written, oral, or implied; nor does she allege the terms of the contract or the legal effect of the contract. (See Miles v. Deutsche Bank National ...

Excerpt: ... records exception to the hearsay rule. A plaintiff moving for summary judgment or summary adjudication bears the burden of persuasion that each element of the cause of action at issue has been proved, and as a result, there is no defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) If the plaintiff fails to meet its burden to make an initial showing, it is unnecessary for the court to examine the defen...

Excerpt: ...mains at issue is a series of redactions (all on the basis of attorney work product), which are reflected on a one-page, revised privilege log, Exhibit 2 to the Declaration of Robert Hubbell. Plaintiff's motion initially contended that KPMG, the former independent auditor for Defendant Banc of California, Inc. (the “Banc”), improperly redacted and withheld documents pursuant to Defendant's instructions, failed to produce subpoenaed communicat...

Excerpt: ...o the common area is granted. Plaintiff Penny Patino, who owns the unit in question, filed two documents in opposition to the motion. Both “opposition” papers are untimely, and the Court declines to consider either of them. Litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. See Rappleyea v Campbell (1994) 8 Cal.4th 975, 984- 985; Nwosu v Uba (2...

Excerpt: ...that absent an intent to injure the plaintiff, ‘malice' requires more than a ‘willful and conscious' disregard of the plaintiffs' interests. The additional component of ‘despicable conduct' must be found.” (College Hospital Inc., 8 Cal.4th 704, 725; see Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 332, review filed (Aug. 9, 2019).) “'[D]espicable conduct' is conduct that is “‘so vile, base, contemptible, miserabl...

Excerpt: ... support the issuance of a preliminary injunction. O'Connell v. Superior Ct. (2006) 141 Cal.App.4th 1452, 1481 “The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause.” White v. Davis (2003) 30 Cal.4 th 528, 554 Has Jones shown she will prevail on any of her COAs? No Jones does not dispute that she owes the HOA money. In fact, one...

Excerpt: ...these causes of action with particularity. Significantly, Plaintiff did not allege the dates that the City allegedly retaliated against him. “Because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liabi...

Excerpt: ...so should provide a red-lined version of any revised papers, including the notice to the class. The moving papers are premised on plaintiff having filed a Second Amended Complaint. But even though the court approved the filing of the Second Amended Complaint on November 13, 2018, plaintiff did not file it. Nor did defendant file any response to the unfiled Second Amended Complaint. Thus, the First Amended Complaint is the operative pleading for p...

Excerpt: ...action on behalf of an individual or in the public interest, and a private person lacks an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”) Accordingly, the trial court must “review and approve” a PAGA settlement. Cal. Lab. Code § 2699(l)(2). As the California Supreme Court explained: “PAGA settlements are subject to...

Excerpt: ...ng Center, Nabhan Simaan and Yola Simaan have agreed to indemnify Respondents for any fees that may be awarded to Petitioner. Grounds for Ruling I. Evidentiary Matters Real Parties' unopposed request for judicial notice is GRANTED. Items 2-4 of Petitioner's request for judicial notice are GRANTED. The request is DENIED as to Item 1, the terms of service of OneLegal, a legal services provider, obtained from the OneLegal website. This document does...

Excerpt: ...A.'s Motion for Further Direction Under the Court's October 26 and November 18,2018 Orders Motions #1 and #3 Only are Continued to 9/13/19 at 9:00am in CX104 by Stipulation. Motion #2 is Going Forward. Defendant San Miguel Equities, LLC's motion to seal Exhibit B to the Declaration of Greg Gilroy, conditionally lodged under seal on July 29, 2019 (ROA 1512), is DENIED. The clerk is ordered to file this document in the public record. On July 29, 20...

Excerpt: ...2019. If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions, and additions must be submitted as well. As to the Settlement: 1. The Court previously denied certification in this matter on the grounds that a class was not ascertainable and that commonality was lacking. From the Court's review of the papers, the only apparent change from the November 2017 denial of certification to today is that...

Excerpt: ...fendants rely heavily on a ruling in a separate case that Mobile Farming Systems, Inc. is not a shareholder of Cultivation Technologies, Inc. However, the plaintiffs in this case are three individuals, not CTI, and the claims in the other lawsuit are not alleged to be identical to the claims in this lawsuit, so the prior ruling is irrelevant to this motion. Under Corp. Code §800(c)(1), defendants must show that there is no reasonable possibility...

Excerpt: ...y Ford cases for which she was designated as an expert witness. In addition, as the Court stated on the record at the August 23, 2019 hearing on Plaintiffs' motion for attorney's fees, Plaintiffs are entitled to recover the fees incurred in successfully opposing Ford's motion to tax costs. Plaintiffs are therefore awarded $5,015 in attorney's fees. Plaintiffs have filed objections to the Declaration of Daniell K. Newman. Objections 1, 2 and 4 are...

Excerpt: ...ard prejudgment interest in all noncontract cases “and in every case of oppression, fraud or malice” … hence in all unliquidated tort actions. This has been characterized as a “necessary element of compensatory damages to insure a plaintiff is made whole” and hence part of plaintiff's “actual damages”; it represents the accretion of wealth that money or particular property could have produced during a period of loss (between the tim...

Excerpt: ...s-complaint on Defendant's behalf. Defendant's counsel subsequently filed a motion to be relieved as counsel, which the court granted on June 6, 2019. In its June 6, 2019 order, the court explained that Defendant, a limited liability company, could not represent itself and ordered Defendant to obtain counsel by July 8, 2019. See 06/06/19 Order. No attorney has filed an appearance on Defendant's behalf. Plaintiff argues that Defendant's counsel's ...

Excerpt: ...ation was based on an Employment Agreement dated December 2017 which contains an arbitration provision. (Notice of Lodging, Ex. 1.) The parties do not dispute that the December 2017 Employment Agreement was never signed by either Hanrahan or CAC. CAC argues that Hanrahan and CAC continued to negotiate the provisions of the Employment Agreement and CAC sent Hanrahan a new draft of the Employment Agreement on March 29, 2018. (Declaration of Andrew ...