Excerpt: ...im is not adequately stated with specificity and is uncertain as to Debra and Brent; Sustain with 10 days leave to amend; Concealment: Defts are again lumped together; The claim is uncertain and not pled with adequate specificity; Sustain with 10 days leave to amend; Conversion: Adequately stated as far as the allegation that her personal property was converted by Deft; Overrule; Breach of fiduciary duty: Brent Bodkin is listed as an alternate ag...

Excerpt: ...reasonable time after the pending motions relating to venue and consolidation are heard. However, based on the request made in the moving and reply papers, it is unclear whether Defendant is seeking to postpone its discovery responses until after the Motion to Consolidate is heard in San Diego or, until this Court rules on the Motion to Transfer. Accordingly, the Court requests clarification from the parties as to the motion pending in San Diego ...

Excerpt: ...13.2, and 15.1 is MOOT. Defendant served plaintiffs with Supplemental Responses to the Form Interrogatories at issue on 8-27-19. (Declaration of Laurence C. Hall, ¶¶ 5-6; Exs. 1 and 2.) Plaintiffs' requests for monetary sanctions for each motion is DENIED as other circumstances make the imposition of sanctions unjust. (Code Civ. Proc. § 2030.300(d).) Moving Party to give notice. (3-4) PLAINTIFFS' MOTIONS TO COMPEL FURTHER RESPONSES TO REQUEST ...

Excerpt: ...s determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. [¶] Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of...

Excerpt: ...lso of those facts that may be implied or inferred from those 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...

Excerpt: ...ides, “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be ju...

Excerpt: ...2030.090 provides, “[t]he court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2030.090(b).) “If the motion for protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was so...

Excerpt: ...ements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense t o t h a t c au se o f a c ti o n . On c e the . . . cross-defendant has met that burden, the burden shifts to the . . . cross-complainant 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...

Excerpt: ...e 4 th and 5 th COAs, as follows. Defendants RFJN: The Court GRANTS Defendant's request for judicial notice of Exhibits J and K pursuant to Evidence Code section 452(d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Plaintiffs' Objection to Evidence: The Court OVERRULES Plaintiffs' Objections to Evidence, No. 1. Plaintiffs' o...

Excerpt: ...ian ad litem, Linda Johnson), Brooklynne Groves (by and through her guardian ad litem, Linda Johnson), Kurt Johnson, Jarah Johnson (by and through her guardian ad litem, Kurt Johnson), and Joshua Johnson (by and through his guardian ad litem, Kurt Johnson) against Defendants Stephen Xu, Marin Express, Inc., Bar Bakers, LLC, Kind LLC dba Kind Foods, LLC, C.H. Robinson Company, Inc. dba C.H. Robinson Transportation Company, Inc., and Fedex Supply C...

Excerpt: ...he relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation. (Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120.) A claim has probable validity if it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim. (Code Civ. Proc., § 481.190.) Moving Plaintiff's claims for breach of contract and common counts do not ...

Excerpt: ...the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. (Citations omitted.) However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. (Citations omitted.)” Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672. If a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any rea...

Excerpt: ...part with 15 days leave to amend. (Code Civ. Proc., §§ 430.10(e), 430.10(f).) Second Cause of Action (Intentional Interference with Contract Against Individual Cicerone). The demurrer to the second cause of action for intentional interference is overruled. The elements of a claim for intentional interference with contract are: (i) Existence of a valid contract; (ii) Defendant's knowledge of the contact and intent to induce its breach; (iii) Bre...

Excerpt: ... second, third, and fourth causes of action are sustained without leave to amend. On 06/24/2019, this court sustained with leave to amend Defendants' demurrer to Plaintiff's First Amended Complaint. That order expressly limited leave to amend to the causes of action pled in Plaintiff's FAC—cancelation of instruments, wrongful foreclosure, and defamation of title. Plaintiff's Second Amended Complaint (“SAC”) exceeds the scope of leave grante...

Excerpt: ...o. (2002) 29 Cal.4th 189, 199.) The FAC does so here. It alleges the lease required defendant “to maintain the roof and utility and plumbing systems in good order, condition, and repair.” (FAC ¶ 53.) That sufficiently alleges the substance of the relevant terms. Motion to Strike Defendant's motion to strike is denied. The FAC sufficiently supports the punitive damages claim. It alleges an intentional trespass, whereby defendant knew water wa...

Excerpt: ...917 [negligence elements]; FAC at Page 4, ¶ GN-1.) The FAC sufficiently alleges an unreasonable failure to restrain the dog. Whether it also alleges a failure to warn is immaterial. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39 [demurrer overruled when allegations constitute any cause of action].) 2nd Cause of Action, Strict Liability. The court previously granted plaintiff leave to amend the strict liability ca...

Excerpt: ...ant's conversion by a wrongful act or disposition of property rights; and (3) damages. Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4 th 1395, 1404-1405; Ananda Church of Self- Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4 th 1273, 1281. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has a...

Excerpt: ...efendants' fact Nos. 3, 5, 8, 10, 11, 15, 17, 20, 22, and 23. “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186. “On a defendant's motion for summary judgment, the defendant's burden is...

Excerpt: ...f did not object. (See 11/5/18 minute order.) Both parties then attended mediation. Plaintiff did not exercise her right to withdraw from mediation. (See Cal. Rules of Court, rule 3.853.) Apparently, both parties thought it was worth their time to mediate. The parties had dueling summary judgment motions pending when they mediated. The court ultimately denied both motions, finding triable issues. (See 5/13/19 order.) Only nine days later, plainti...

Excerpt: ...sts production of documents specified in the deposition notice at deposition, the motion is denied. Defendant has not addressed the good cause requirement for production of documents. (Code Civ. Proc., § 2025.450(b)(1).) Defendant's request for evidentiary sanction is denied. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 [the discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sancti...

Excerpt: ...consider Plaintiff's untimely reply briefs on these motions. Although the Court has discretion to consider late-filed briefs, it declines to exercise that discretion here. The filing deadlines for briefs in support of and in opposition to law and motion matters are not suggestions or optional guidelines. Given the number of motions (and, therefore, the number of late reply briefs), it would impose an unfair burden on the Court and its staff if th...

Excerpt: ...erified responses must be addressed in a motion to compel further responses, which must be accompanied by a separate statement. (See CRC 3.1345(a)(1).) To the extent that the Motion attempts to seek relief under §2033.290, it is denied without prejudice to a proper motion to compel further responses which complies with CRC 3.1345 and all related requirements. To the extent that this motion seeks relief under C.C.P. § 2033.280, it is now moot, e...

Excerpt: ...attorneys. Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247 (internal citations and quotation marks omitted).) Defendant's motion seeks order dismissing Plaintiff's Complaint, an order that Defendants stop harassing Defendant and her tenant, and an award of reasonable compensation. Defendant does not provide any authority, statutory or otherw...

Excerpt: ...on to Seal does not seek to seal Exhibits C, F, L, N and O or the deposition transcript excerpts submitted by Plaintiff in support of its motion for summary judgment/adjudication. The Motion is GRANTED. A party requesting that a record be filed under seal must file a motion or application for an order sealing the record. The motion or application “must” be accompanied by a memorandum and a declaration containing facts sufficient to justify th...

Excerpt: ...sanctions imposed against plaintiff in the amount sought of $1,750.00. In California, discovery is purposefully broad. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and common sense – might (1) be admissible, (2) lead to admissible evidence, or (3) reasonably assist that party in evaluating the case, preparing for trial and/or facilitating resolution. Children's Hospital Central Calif...

Excerpt: ...that a landlord merely failed to repair defective conditions is insufficient to support a punitive damages claim. (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 299-300.) Nor are facts alleged to support the claim that LL's conduct reflected oppression, fraud, or malice. A claim for punitive damages must be supported by specific factual allegations: conclusory characterization of conduct as “intentional, willful and fraudulent” is...

Excerpt: ...articular, the Defendants provided Plaintiff with a ladder/Step stool as a seat that broke while Plaintiff was sitting on it.” Complaint, page 4. 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. 4 th 826, 850. The scope of this burden is determined by the allegations of t...

Excerpt: ...tion 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 t...

Excerpt: ...ice of Intention to Move for New Trial. (CCP 12a(a).) However, plaintiff did not do so until 8-1- 19. Plaintiff's Notice of Intention to Move for New Trial is two days late. As defendant County served its Notice of Entry of Judgment by mail, plaintiff may have been under the impression that she had an additional five days, pursuant to CCP 1013, to seek a new trial. However, as noted above, the time requirements of CCP 659 are not extended based o...

Excerpt: ...008) 160 Cal. App. 4th 514, 519. The United States Supreme Court's decision three months ago in The Dutra Group v. Batterton (2019) 139 S. Ct. 2275, compels the conclusion that plaintiff may not recover on her claims under general maritime law for loss of society damages based on the diving injury to her father, in the waters off French Polynesia, for which he and plaintiff's mother already received $7,800,000 in settlement. The Dutra Court held ...

Excerpt: ...381 (“When a government agency is authorized to bring an 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 ...

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. Counsel declares that the motion and supporting papers will be served on the LWDA (Quintilone Decl., ¶ 11), but there is no proof of service. 2. Please provide copies of each named Plaintiff's prefiling letter to the LWDA so the court can evaluate compliance with the ...

Excerpt: ...e convenient forum. (See Code Civ. Proc., § 410.30, subd. (a).) A nonresident Plaintiff's choice of forum is entitled to “due deference” under all circumstances, but not a “strong presumption” of appropriateness. (National Football League v. Fireman's Fund Insurance Company (2013) 216 Cal.App.4th 902, 929- 930.) When Defendant seeks a dismissal of the action, Defendant must establish that this forum is a “seriously inconvenient” foru...

Excerpt: ..., LLC v. Goldman (2011) 51 Cal.4th 811, 821; see also Singarella v. City of Boston, 173 N.E.2d 290,291 (Mass.1961).) Further, it is well established “that a supplemental agreement either adding to or varying the terms of the original contract, so as to impose new and onerous burdens upon one of the parties, requires a consideration to support it.” (Krobitzsch v. Middleton (1946) 72 Cal.App.2d 804, 808.) An obligation already owed by the promi...

Excerpt: ...fornia State Auto. Ass'n. Inter-Insurance Bureau v. City of Palo Alto (2006) 138 Cal.App.4th 474, 479 (“CSAA”), a case cited by Defendant in support of its demurrer, “damage caused by the public improvement as deliberately conceived, altered, or maintained may be recovered.” (Emphasis added.) In an opinion issued on August 15 of this year, the California Supreme Court reiterated that inverse condemnation claims may be based on damage caus...

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

Excerpt: ...y adjudicated against him. Similarly, named plaintiffs Rodriguez and Gama settled their PAGA claims on an individual basis and are excluded from the class. The only settling plaintiff who has a potential PAGA claim is Kles. While counsel has provided Kles's letter to the LWDA in a supplemental declaration, this does not change the fact that Kles, unlike the Rodriguez plaintiffs, never filed a complaint that included a PAGA claim against R.J. Nobl...

Excerpt: ...ble conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Allegations of intoxication, without more, do not state a claim for punitive damages. (Dawes v. Superior Court (1980) 111 Cal.App.3d...

Excerpt: ...idence of malice, oppression or fraud warranting punitive damages; (2) Defendants are entitled to Summary Adjudication as to Plaintiffs' request for punitive damages as to their Second Cause of Action for Violation of Civil Code Section 1942 as Plaintiffs have not provided clear and convincing evidence of malice, oppression or fraud warranting punitive damages; (3) Defendants are entitled to Summary Adjudication as to Plaintiffs' request for puni...

Excerpt: ...to the plaintiffs' occupancy (UMF 20); the room was inspected by a pest control vendor on 3/7/12, 2/25/13, and 1/29/14 finding no bedbugs (UMF 25); the defendant had an intensive program to detect and treat bedbug infestation (UMF 1-17); and the room has been inspected numerous times since the plaintiffs' occupancy without finding bedbugs (UMF d8.) Turning to the opposition, first, the opposing party's separate statement must state unequivocally ...

Excerpt: ... stayed pending completion of plaintiff's arbitration with PriorityWorkforce. The Case Management Conference set for today is ordered off calendar. A Post-Arbitration Review Hearing is set for March 13, 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 continuance if arbitration is not yet complete. The court concludes that there exists a valid agreement to arbitrate the claims ass...

Excerpt: ...rate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and th...

Excerpt: ...proposed cross-complaint attached to the Lemen Declaration as Exhibit A on or before September 20, 2019. Grounds for Ruling Plaintiffs are three former employees of defendant Uni-Caps, LLC, who were terminated on March 6, 2014, after they complained to Defendant and the DFEH about alleged FEHA violations by defendant. Plaintiffs bring this action alleging defendant violated wage and hour laws and discriminated against plaintiffs who are of Korean...

Excerpt: ... The subpoenas are QUASHED in all other respects. This is a PAGA-only action in which Plaintiff, on behalf of herself and other aggrieved employees of Rubio's, alleges violations of Labor Code provisions relating to minimum wages, meal and rest breaks, wage statements, waiting time and recordkeeping. On July 12, 2019, Rubio's served identical subpoenas on two of Plaintiff's former employers, Forever 21 and K-Mart. The subpoenas each seek: [A]ny a...

Excerpt: ...y 3, 2019. However, Ms. Acosta has not obtained, through a motion or an ex parte application, an order substituting her as Plaintiff's personal representative or successor in interest. (Code Civ. Proc., § 377.31.) Plaintiff's evidentiary objection numbers 1 and 2 are sustained. Plaintiff's evidentiary objection number 3 is overruled. The Court considered the corrected declarations of Jan P. Abbs and James W. Convy. Code of Civil Procedure sectio...

Excerpt: ...RANTED IN PART and DENIED IN PART as follows: 1. The Clerk is ordered to permanently seal the documents filed at ROA 1501, 1502, 1516, and 1517. 2. Cross-Complainant First Foundation Bank (“FFB”) is ordered to file public, redacted versions of the foregoing documents. 3. As to ROAs 1502 and 1517 (each a Declaration of Edward O. Morales), FFB is to file public, redacted versions that omit Exhibits 9, 10, 11, 12, 21, and 22, and redact Exhibits...

Excerpt: ...on to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Applicable Law “[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 facie showing is one t...

Excerpt: ...alleges Defendants breached various “statutory and common law duties” owed to Decedent, which ultimately led to her death on October 31, 2018. Plaintiff's wrongful death claim is premised on the same alleged breaches of “statutory and common law duties” owed to Decedent that are alleged in the survivor claims (i.e., the first, second third, and fifth causes of action). (Compl., at ¶¶ 97- 102.) Defendants contend that “all of Plaintiff...

Excerpt: ... (1993) 14 Cal. App. 4th 1595, 1606-7, the court found that any claim against an employer for negligence in connection with alleged sexual harassment and wrongful termination of the employee was barred by the workers' compensation exclusivity principle. Further, in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal. 3d 148, 152, the court concluded that “when the employee's claim is based on conduct normally occurring in the workplace, it is...

Excerpt: ...ifornia, resulted in the plaintiff transferring money that ultimately went to the defendants here in California. For purposes of pleading, the allegations are sufficient to establish Orange County as a proper venue. The ten causes of action are sufficient pled to withstand the demurrer. Motion to Strike The motion of the defendants to strike punitive damages and other allegations from the Complaint is DENIED. Sufficient facts are stated that woul...

Excerpt: ...se of escrow, plaintiff and his daughter received a check for surplus funds in the amount of $793.60. Neither plaintiff nor his daughter moved into the property. Instead, it was apparently leased to a third-party. However, those tenants did not move in (or stay long), and the property was soon sold to plaintiff's ex-wife – the defendant herein – for a small profit. Now the wrinkle: plaintiff contends that his ex-wife (the defendant) “forged...

Excerpt: ...ndum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Id. at rule 3.1113(g).) “A trial court has broad discretion … to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Plaintiffs' opposition is 20 pages. Plaintiffs did not file an ...

Excerpt: ...ctors or officers and failed to allege facts which demonstrate “foreseeability of harm.” Defendant cites no authority within this portion of its Demurrer and does not establish the allegations it asserts are missing, or are required elements of either claim. “Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.” (See Plotnik v. Meihaus (201...

Excerpt: ...otherwise. The First Amended Complaint alleges that moving Defendant was the loan servicer for Plaintiffs' loan “from approximately mid-2016 through mid-2017.” (FAC, ¶ 23.) It alleges that, during the time that moving Defendant serviced the loan, it “demonstrated a lack of due care by reviewing Plaintiffs only for HAMP loan modification of the loan despite the fact that Plaintiffs' original loan amount of $763,000.00 put them over the limi...

Excerpt: ...llenges 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 complaint, a court will not consider fac...

Excerpt: ... of interest and acted in bad faith in approving the Consulting Agreement, thus abrogating the Rule. Fourth and Fifth Causes of Action for Accounting The primary argument is that the plaintiff does not plead she does not have access to the corporate records, or that her claims can only be addressed by an accounting. It is clear from a fair reading of the amended complaint that the plaintiff asserts she does not have access to the corporate books ...

Excerpt: ... Code Civ. Proc. § 2032.320(a). “Good cause” generally means there is a showing of both “relevancy to the subject matter” and “specific facts justifying discovery.” Cal. Prac. Guide Civ. Pro. Before Trial at ¶ 8:1557 (original emphasis) (citing Vinson v. Superior Court (1987) 43 Cal.3d 833, 840). Here, moving defendants have shown “good cause” for an order for leave to take a neuropsychological examination of plaintiff. Plaintif...

Excerpt: ... section 2698 provides: “Notwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and o...

Excerpt: ...ing and/or retention claims. For the following reasons, Defendants' motion is denied. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. ...

Excerpt: ...ontractor, to install the fire sprinkler system for the tower. (See SSUF No. 2). Further, it is undisputed that Plaintiff “only took directions regarding his work on the Project including safety protocols, directly from his supervisor at APEX, Paul.” (See SSUF No. 13). It is similarly undisputed that “[m]oving defendants were not the employers of Plaintiff Losey [and] [m]oving defendants had no part in training, equipping or directing the m...

Excerpt: ...g on. CRC 3.1350. The court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498. The noticed issues for summary adjudication must then be stated, verbatim, in the separate statement. CRC 3.1350(b). The court did not consider new evidence submitted on reply. Generally speaking, new evidence may not be submitted on reply in support...

Excerpt: ... 187 grants to every court the power to use all means to carry its jurisdiction into effect, even if those means are not specifically pointed out in the Code. NEC Electronics v. Hurt (1989) 208 Cal.App.3d 772, 778. This section grants the Court the authority to amend a judgment to add additional judgment debtors. Id. Judgments are often amended to add additional judgment debtors on the grounds that a person or entity is the alter ego of the origi...

Excerpt: ...verified responses/objections to each set somewhere around 03/11/19. (It is unclear to the Court exactly when, because Plaintiff's counsel does not attach proofs of service to same.) (See Mokri Decl., Exs. E-H.) Plaintiff provided a mixture of unverified responses and objections to the Form Interrogatories, Special Interrogatories, and RPDs. However, her responses to the RFAs consisted entirely of objections. (Id., Ex. G.) On 06/02/19, Plaintiff ...

Excerpt: ...ing party must have “made a complete and timely compliance” with all expert witness exchange requirements. (CCP § 2034.300; Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1446.) To make the required showing, the moving party must show that the expert witness disclosure is inadequate under the statutory scheme and that the failure to comply was unreasonable. (See CCP § 2034.300). However, when no demand is made by any party, no party is require...

Excerpt: ...ted evidence to show that this matter was previously removed to federal court where SLS filed a motion for judgment on the pleadings. (Declaration of Andrew Mase (“Mase Decl.”), ¶ 5.) While SLS's motion for judgment on the pleadings was pending, Plaintiff and SLS stipulated to dismiss the federal claims from the First Amended Complaint and to remand the case to state court where Plaintiff could file a SAC. (Mase Decl., ¶ 5.) On 05/28/19, Pl...

Excerpt: ... case, and harassing given the proximity to the parties' mediation. In order to obtain a protective order with respect to both special interrogatories and RPDs, a responding party must “promptly” move for one upon good cause shown, and the motion must be accompanied by a meet and confer declaration. See Code Civ. Proc. §§2030.090(a) & 2031.060(a). Here, Defendant concedes that the discovery was served on 04/29/19. Yet, Defendant did not eve...

Excerpt: ...he Danny & Zohar Prosky Family Trust, Ronald Touchard, Misty Touchard, Alan Rothman, Ticor Title Company of California, Paul Garcia, Mark Attalla, ACER Capital Group, American Cadillac Group, Brokerage International, Inc., JBA Property Investments, LLC, and Brandon Locascio. The SAC in this lead case alleges four C/As: (1) quiet title; (2) cancellation of instrument; (3) slander of title; (4) aiding and abetting slander of title. The case concern...

Excerpt: ...on 1793.2(d) 3. Violation of CC section 1793.2 (A)(3) 4. Breach of express written warranty 5. Breach of the implied warranty of merchantability 6. Fraud Trial has not been set. DEMURRER Defendant demurs to the 3 rd, 4 th 5th, and 6 th causes of action. Analysis: Third Cause of Action for Violation of Civil Code §1793.2(a)(3): Under Civil Code §1793.2(a)(3), “Every manufacturer of consumer goods sold in this state and for which the manufactur...

Excerpt: ... invest $1.25 million in a “Private Placement Program,” referred to as a trade program, through Defendant Group 7 Asset Services Group, LLC. In exchange for the investment, Plaintiff was to receive 12 monthly payments (which ended up being $56,000.00/mo. lower than promised), a full return on his investment, as well as anticipated $8 million in profits. Plaintiff's investment was wired to attorney Ray Holland and deposited into a bank account...

Excerpt: ...de Medical Center; Sun Haven Care, Inc., dba Terrace View Care Center, erroneously sued and served as “Terrace View Care Center”; Front Porch Communities and Services, dba Walnut Village Care Center; Iksoo Kang, M.D.; Keith Mullins, M.D.; and Michael Kulcycki, D.O. (collectively, defendants), alleging two causes of action for (1) medical malpractice and (2) elder abuse. Two motions for summary judgment/adjudication are currently scheduled for...

Excerpt: ...on; The discovery was served on August 30, 2018 – Keshen chose not to respond although the Court confirmed on 1/24/19 that there was no stay in place and the stay had been lifted on 5/31/18; Keshen still refused to provide responses – even after that clarification, which was four months prior to the Court's hearing on the Motion to Deem RFAs Admitted; Even if Keshen believed that she only received notice of the RFAs on 4/5/19 she still had 40...

Excerpt: ...serve responses by mail, with return receipt, no later than August 26, 2019. The court's file does not contain any evidence that Mr. Senga responded to the subject discovery. At today's hearing, if Moving Party has submitted proof of timely service of the discovery requests, and if there is no proof of compliance by Responding Party, the court intends to confirm the tentative ruling as its final ruling. If Mr. Senga submits proof of timely compli...

Excerpt: ...a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to prote...

Excerpt: ...ly: [¶] (1) An answer to a particular interrogatory is evasive or incomplete . . . [¶] (3) An objection to an interrogatory is without merit or too general. . . . [¶] (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any speci...

Excerpt: ...the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5. The court, on its own motion, may make such an order at any time.” Code of Civi...

Excerpt: ...judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Plaintiffs' RFJN: The Court GRANTS Plaintiffs' request for judicial notice of Item Nos. 1-5 pursuant to Evidence Code section 451(a). Plaintiffs' Objection to Evidence: The Court SUSTAINS only Objection Nos. 2 and 3 and OVERRULES Nos. 1 and 4. Defendant's Objections to Plaintiffs' Evidence: The Court SUSTAINS only Objection...

Excerpt: ...pressly 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) 209 Cal...

Excerpt: ...e 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) 209...

Excerpt: ...be able to use the dispute resolution results to rebut that presumption. As for the assignment issue, plaintiff was the sole person listed on the purchase agreement and the sole borrower on the loan. As such he was the sole “buyer” under the Song Beverly Act. Had plaintiff defaulted on his loan payments, he alone would have been liable to the lender for any money owed and the vehicle, as collateral on the loan, could be repossessed regardless...

Excerpt: ... application, claiming it was mailed to the wrong address. Plaintiff was directed to mail the application to the New York office. (SAC, ¶ 5.) Plaintiff alleges that the document returning the application was not on formal government paper and does not include a signature or date. (SAC, ¶ 5.) Plaintiff mailed the application to the New York office as directed, but it was returned. Plaintiff was directed to mail the application to the Sheffield o...

Excerpt: ... Chris Pappas, Mark Serventi, and Ralph Nudo (collectively, the “Lessees”) allege that Cross-Defendants published false, “libelous statements” about the Lessees to Lessor in an email dated December 5, 2015. (FACC at ¶¶ 53-36, Exh. 5.) Lessees further allege that, as a result of the publication of those “libelous statements,” Lessor was induced to breach a “right of first refusal” provision in the lease agreement between him and ...

Excerpt: ...rty's attorney spent on the case and multiplies that number by the reasonable hourly compensation of each attorney. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998; see also Environmental Protection Info. Ctr. v. California Dep't of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 248.) The court may rely on personal knowledge and familiarity with the legal market in setting a reasonable hourly rate. (Heritage Pac. Fin., LLC...

Excerpt: ...of the Tech-Bilt factors, and the court cannot reach a determination without such evidence. The court also finds that for purposes of this motion only, that Proof Positive's evidence as to its proportionate liability to plaintiff is lacking. Arguments that Proof Positive is not a mandated reporter may be precluded by application of the doctrine of estoppel, based upon its written representations to plaintiff's parents that it is a mandated report...

Excerpt: ...on will usually be exercised liberally so as not to deprive a party of the right to assert 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 th...

Excerpt: ...2 fn. 5.) Here, the claims in the Complaint are transitory. Indeed, Plaintiff does not appear to dispute this point. Where an action is transitory, the general rule is that the action is to be tried in the county of defendant's residence. (Code Civ. Proc. § 395(a).) With respect to actions for breach of contract, such actions are triable in the county where defendant resides or where the contract was entered into or where it was to be performed ...

Excerpt: ... circled the word “and” or word “or.” Since there was no instruction for the jury to do so, this position is unreasonable. Defendants Erwin have the obligation to structure the Verdict Form to reveal this finding. Defendants Erwin failed to alert the Court of any alleged ambiguity before the jury was excused. The failure to this ambiguity timely forfeited the issue. “Potentially defective special verdicts are subject to ‘a multilayere...

Excerpt: ... on T&J's property is DENIED. EVIDENTIARY AND PROCEDURAL ISSUES I. T&J's Request for Judicial Notice T&J requests judicial notice of four documents, attached to T&J's evidence as Exhibits 1-4: 1. The Court's tentative ruling of December 21, 2018 2. Plaintiff's FAC, filed January 8, 2019 3. Notice of Errata to Plaintiff's FAC, filed January 9, 2019 4. ACI 318 Table 4.3.1, contained on the second page of Bondy, Code Requirements for Sulfate Durabil...

Excerpt: ... below: 1. Cross-Complainant Sean Bose's class allegations are dismissed without prejudice. 2. The first, second, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, and twelfth causes of action in Bose's FAXC are ordered to arbitration on an individual basis. 3. The seventh cause of action (UCL violations) is ordered to arbitration on an individual basis insofar as Bose claims unjust enrichment, disgorgement or restitution. The seventh ...

Excerpt: ...ings as they currently stand. At the hearing on this motion, however, Plaintiff shall state on the record whether he waives his claims for underpaid wages and any other individualized relief. If Plaintiff agrees to such a waiver, then the motion will be denied. I. Factual Background Plaintiff was employed by TIC-AC as a Service Technician and Assistant Service Manager at two TIC-affiliated apartment properties in Mission Valley, California. (Comp...

Excerpt: ... for Lack of Subject Matter Jurisdiction, or in the Alternative, to Dismiss or Stay in Light of the Primary Jurisdiction of the State Water Board Sabic Innovative Plastics US, LLC's and General Electric Company's Motion to Dismiss for Lack of Subject Matter Jurisdiction, or in the Alternative, to Dismiss or Stay in Light of the Primary Jurisdiction of the State Water Board, and the joinder in that motion by ICI Americas, Inc. and Beatrice Compani...

Excerpt: ...ocedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]' [Citation.] Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway (2001) 94 Cal.App...

Excerpt: ...e necessity and the reasons for the discovery; (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar...

Excerpt: ... whether it has specific jurisdiction over Danielson. To establish specific jurisdiction, Aviana was required to show that 1) Danielson purposefully established contacts with California and 2) the claims here arise and are related to California-related claims. Aviana has done so. The evidence establishes that although Danielson lived in Illinois, he worked for Aviana, a California company, as an employee. He reported to Hansen and Ishikawa, both ...

Excerpt: ... Memo in Support at p. 1-2.) Plaintiff's request appears to be procedurally improper under CRC 2.551 (b)(3). However, on December 7, 2018 this court signed a Stipulated Protective Order regarding documents that either side could designate as “confidential”. In light of this prior stipulation and Servite's non- Opposition, the court will attempt to address the procedural defects without prejudicing the parties and without prejudicing the confi...

Excerpt: ...ird Cause of Action for products liability. Evidentiary Objections The defendant's evidentiary objections to the declaration of Nadia Bayazid is SUSTAINED as to Nos. 1, 2, and 3, and OVERRULED as to Nos. 4 and 5. Request for Judicial Notice The defendant's Request to take Judicial Notice of Exhibits 1 and 2 is GRANTED. The defendant's Request to take Judicial Notice of certain unpublished federal District Court opinions (Exhibits 3, 4, and 5) is ...

Excerpt: ...of deed of trust recorded on 4-13-16. (Exhibit 3.) 4. Substitution of trustee recorded on 6-12-17. (Exhibit 4.) 5. Notice of default recorded on 6-12-17. (Exhibit 5.) 6. Notice of trustee's sale recorded on 2-20-18. (Exhibit 6.) 7. Trustee's deed upon sale recorded on 4-16-18. (Exhibit 7.) 8. The court's minute order of 2-21-19. (Exhibit 8.) GRANTED as to all. First and second causes of action for breach of contract and breach of the implied cove...

Excerpt: ... it appears that he received the Demurrer and has waived the improper service. Farrar v. McCormick (1972) 25 Cal. App. 3d 701, 705. As for the Reply, the Court has no way of knowing if it was actually served via e-mail, or to what address it was sent. The Court hereby admonishes Plaintiff to follow the proper statutory procedures for proofs of service in the future. Additionally, the Court also notes that Plaintiff's meet and confer statement is ...

Excerpt: ..., or the “failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing to carry out their custodial obligations.” (Covenant Care Inc. v. Superior Court (2004) 32 Cal.4 th 771, 783.) Defendant GHC argues that the claim for elder abuse and neglect fails as a matter of law because all of the supporting allegations go to providing negligent medical care, not t...

Excerpt: ...p.4th 280, 291.) Unlike the tort of inducing breach of contract, interference with contractual relations does not require proof of a breach; it only requires proof of interference. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129.) Further, it is not necessary that the defendant's conduct be wrongful apart from the interference with the contract itself. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26...

Excerpt: ...se of action for breach of contract, seeks the same damages and is therefore improper, citing Careau & Co. v. Security Pacific Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371. Careau held that a breach of the implied covenant involves something beyond breach of the contractual duty itself and involves unfair dealing rather than mistaken judgment. Id. at p. 1394. It stated that the allegations “must show that the conduct of the defendant, whether o...