Excerpt: ...ion for: (1) motor vehicle negligence; and (2) general negligence. Plaintiff alleges personal injuries and damages after she was struck by a vehicle driven by defendant Harris and owned by defendant O'Connell, while in course and scope of the former's 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 Mainten...

Excerpt: ...nd cause of action [breach of contract v individuals]: NewRez has provided no evidence for anything but taking confidential/trade secret information; There is no evidence that McCarthy or Davidson disclosed to others the information that they emailed themselves; This cause of action does not provide any basis for an injunction any broader than would be supported by the 1 st cause of action; Deny; 3 rd cause of action [breach of non-solicitation a...

Excerpt: ...orm certain surveying work at the project, entered into on or about August 22, 2013 (See FAC ¶¶ 1, 5, 8, 11, 18, Exh. B.) AWI alleges Defendant Pockman is TDR's CEO and Defendant Shank is TDR's CFO and secretary, and that both individuals are also parties to the Agreement as an “apparent assignee[s].” (Id. ¶¶ 2, 4, 5, 11, Exh. B.) AWI alleges Defendants have breached the Agreement by, among other things, performing deficient surveying wor...

Excerpt: ... of action: 1. Discrimination in violation of Fair Employment and Housing Act (FEHA), Government Code section 12940, subdivision (a); 2. Retaliation for disclosure of veteran status in violation of Labor Code section 1102.5; 3. Hostile work environment in violation of FEHA, Government Code section 12940, subdivision (j); 4. Wrongful termination in violation of Government Code section 12940, subdivision (a); 5. Discrimination against member of mil...

Excerpt: ...no v. Hirano (2007) 158 Cal.App.4th 1 applicable to the circumstances here. In Hirano, appellant failed to timely exchange expert witness information when the case was initially set for trial. (Id. at p. 5.) The court continued the trial several times, but ultimately dismissed the action for failure to prosecute. (Ibid.) The Court of Appeal reversed the judgment and on remand, a new trial date was set. (Ibid.) The trial court granted respondent's...

Excerpt: ... 1013 Does Not Apply: Code of Civil Procedure section 1013, subdivision (a), provides in pertinent part: “In case of service by mail . . . . [s]ervice is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days...

Excerpt: ..., cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgm...

Excerpt: ...ed, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (fns. 13 and 14 omitted), states, “Second, and generally, the party moving for summary judgment bears an initial ...

Excerpt: ...nd DENIED, in part. (2) Plaintiff's motion for an order compelling the further depositions of Piecemakers' Person Most Knowledgeable and Douglas Follette, and compelling witnesses to answer questions at deposition is GRANTED. (3) Plaintiff's motion for an order compelling the further depositions of Piecemakers' Person Most Knowledgeable and to produce documents is GRANTED. As to all three motions, the Court finds counsel for plaintiff sufficientl...

Excerpt: ...: (1) Plaintiff was a beneficiary of the Showalter Trust; (2) despite James' giving Defendant Power of Attorney over his beneficiary rights under the Showalter Trust and assigning his beneficiary rights to Defendant, Defendant was to ensure that Plaintiff still received her share of the inheritance pursuant to the Showalter Trust; and (3) because James turned 60 before the Trust funds were dispersed, he received Plaintiff's share of inheritance u...

Excerpt: ...ef requested is thus moot as no writ may be issued on a sanction that has been paid. And the request for terminating sanctions fails on its face because a failure to timely pay discovery sanctions would not, in and of itself, be a sufficient basis to impose terminating sanctions. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615 [“a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never...

Excerpt: ...vincing evidence that the defendant has been guilty of oppression, fraud, or malice. Malice is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. See Grieves v. Superio...

Excerpt: ...ied on by the defendant with a willful and conscious disregard of the...safety of others.” Civ. Code §3294(c)(1). The act of willfully becoming intoxicated and operating a motor vehicle can reasonably be held to reflect a conscious disregard for the safety of others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-96.) Plaintiff here pleads that Defendant was under the influence of three different narcotic medications which negatively affected h...

Excerpt: ...bout deterioration in his vision subsequent to obtaining his license. But that still does not suffice to demonstrate willful and despicable conduct. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [“malice, based upon a conscious disregard of the plaintiff's rights, requires proof that the defendant's conduct is ‘despicable' and ‘willful.'”].) The FAC also cites to Veh. Code §21954(b). But that provision pertains to pedestrian ri...

Excerpt: ...d, that TAM's motion was untimely and that TAM waived its motion by filing an unrelated motion to continue. Neither argument is availing. Initially, the TAM motion was timely filed. Per the Proof of Service, TAM was personally served on June 4, 2019. (See POS dated 06/10/19). Pursuant to C.C.P. §412.20(a)(3), TAM had 30-days therefrom to answer, resulting in a deadline of July 4, 2019. As July 4 th was a court holiday, this deadline was extended...

Excerpt: ...erba or according to its legal intendment and effect.” Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640. Plaintiff failed to allege the terms of the oral contract. Third Cause of Action for Breach of Implied-in-Fact Contract: Since there was an existing express contract, there cannot be an implied-in-fact contract covering the same subject matter. “[I]t is well settled that an action based on an implied-in-fact or quasi-contract cannot lie wh...

Excerpt: ... are overruled. 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. (Civ. Proc. Code, § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 2...

Excerpt: ...ally, as conceded by Defendant within this Motion, the instant Complaint sought recovery of “attorneys' fees and investigation costs, and/or penalties from Defendants, their successors, and assigns, as provided by California Civil Code Section 3496, and/or as otherwise permitted by law.” (See §4 of Prayer of Complaint; See also Motion: 4: 17- 19). While Counsel declares that Defendant Ohio House voluntarily vacated the subject premises in Au...

Excerpt: ...e Civ. Proc. § 1008(a).) Specifically, the Court finds good cause exists to reconsider the order denying the previous motion on the grounds that Plaintiff's counsel, through inadvertence, failed to appear at the hearing, resulting in its denial. Moreover, since that time, the parties have met and conferred and Defendant has confirmed it does not oppose the sealing and joins in the instant motion. Unless confidentiality is required by statute or ...

Excerpt: ...(“HSBC” together). Although the OSC directs the responding party to show cause why the preliminary injunction should not issue, the burden is on the moving party to show all elements necessary to support issuance of a preliminary injunction. O'Connell v. Superior Court (2006) 141 Cal.App. 4th 1452, 1481. The moving party has the burden to show that it is reasonably probable it will prevail on the merits. San Francisco Newspaper Printing Co. v...

Excerpt: ...19 Minute Order.) The Court has now considered both Plaintiff's opposition and Defendant's further reply. Defendant moves for an order striking paragraphs 11-16, 19, 20, 22- 28, 30, and 31, and portions of paragraphs 18, 21, and 74, on the ground they contain “irrelevant and improper matters.” Code Civ. Proc. § 436. Defendant contends, to the extent these matters are the basis for Plaintiff's FEHA claims, they are time-barred due to the one-...

Excerpt: ...n is overruled. “‘Promissory fraud' is a subspecies of the action for fraud and deceit.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The elements of a cause of action for promissory fraud: (i) the defendant made a false promise; (ii) with intent not to perform; (iii) intent to induce reliance; (iv) justifiable reliance by the plaintiff; and (v) resulting damages. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638; Beckwith v. Dahl (2...

Excerpt: ...12. The trial court has broad discretion in selecting which discovery sanction to impose in the face of discovery abuses, but either way California readily adheres to a “lesser sanction first” philosophy. Reedy v. Bussell (2007) 148 Cal.App.4 th 1272, 1293. Only if lesser sanctions fail to curb misuse should a trial court consider something like a terminating sanction. Van Sickle v. Gilbert (2011) 196 Cal.App.4 th 1495, 1516. A decision to or...

Excerpt: ...ion commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Barris v. County of Los Angeles (1999) 20 Cal.4 th 101, 108; Tortorella v. Castro (2006) 140 Cal.App.4 th 1, 3. As this Court previously pointed out, pharmacies have a duty to reject facially non-compliant prescriptions, a...

Excerpt: ...motions in limine and motion for bifurcation of damages should be disallowed because the parties had already agreed on the merits of those motions before they were filed, so they were not necessary, and Defendant provided evidence of such an agreement. Plaintiff did not respond to this argument. The motion is granted as to these costs ($180 for 3 motions to compel, $60 for request for judicial notice, $120 for motions in limine, and $120 for the ...

Excerpt: ...are not clearly stated and various agreements are referenced without specificity as to when the agreements were reached, the parties thereto, the material terms, and the manner in which they were created. The FAC then presents a list in ¶ 42 as the issues to be resolved, but without specifying the factual underpinning for each. COA 1 attempts to state a COA for conversion. A COA for conversion requires allegations of plaintiff's ownership or rig...

Excerpt: ...employee or any other person.” Under this section, “in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.” (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409.) Thus, in California “sovereign immunity is the rule” and “governmental liability is limited to exceptions specifically set forth by statute.” (Id.) Under Gov't Code § 844.6(a), a public ent...

Excerpt: ...y on the seventh cause of action. The demurrer is sustained with 15 days leave to amend as to the first, second, third, fourth, eighth, ninth, and tenth causes of action – and as to Fay Servicing on the seventh cause of action. First Cause of Action for Negligent Misrepresentation The elements of negligent misrepresentation are: (1) the misrepresentation of a past or existing material fact; (2) without reasonable ground for believing it to be t...

Excerpt: ... ‘to out-of-state persons or corporations engaged in commerce.'” (Heritage Marketing & Ins. Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 759.) “[S]ection 351 [does] not violate the commerce clause ‘when applied to a non-commercial defendant not engaged in interstate commerce.'” (Id. at p. 761.) The face of the FAC does not show any connection to interstate commerce. It does not allege defendants are nonresidents doing busine...

Excerpt: ...ecessarily time-barred. (See Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) None of the three documents upon which defendants rely shows on its face when plaintiff Dawn Thorson knew of the alleged misconduct. Exhibit 4 shows when plaintiff was appointed special administrator of the Posner estate, but it does not show what she knew. Exhibits 2 and 8 show what the other three plaintiffs knew, but they do not show what this p...

Excerpt: ...ntiff's claims against Defendants, reached at a mandatory settlement conference on April 13, 2018. In consideration for Plaintiff dismissing his case and providing a general release of his claims, Defendants, jointly and severally, agreed to pay Plaintiff a total of $36,600 according to the following schedule: 1. $5,000 on or before May 14, 2018; 2. $5,000 on or before November 14, 2019; 3. $5,000 on or before May 14, 2021; and 4. Beginning June ...

Excerpt: ...t may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” In deciding whether to consolidate cases, the court can consider such factor as timeliness of the motion, complexity of the cases, and prejudice. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter 2018) ¶ 12:362.) Here, Defendants move to consolidate Newport Harbor Offices & Marina ...

Excerpt: ...te Aerospace, Inc. is DENIED as set forth below. Adams Rite's Opposition Plaintiff argues that the Court should disregard the opposition because of late service. Because Plaintiff had the opportunity to brief a full reply on the merits and declined Adams Rite's offer to continue the hearing, the Court will exercise its discretion to consider Adams Rite's opposition. (See Cal. Rules of Court, rule 3.1300(d).) Grounds for Ruling I. Factual Backgrou...

Excerpt: ...onnie Ortloff). (ROA 65.) Defendant's motion was based on an arbitration agreement contained in storage unit leases. While the Non- Signatory Plaintiffs were not party to these leases, the other named plaintiffs (“Signatory Plaintiffs”) were parties to the leases, and both the Signatory Plaintiffs and the Non- Signatory Plaintiffs alike sued for breach of the leases. The Court ordered the Signatory Plaintiffs to arbitration based on the arbit...

Excerpt: ...by the evidence. Requests for Judicial Notice: All Requests for Judicial Notice is GRANTED. Defendant ITCA's Objections to Evidence: Nos. 1 to 5: Overruled. Costs: In both motions, defendants sought to recover costs incurred in defending this action. However, on July 22, 2019, the Court entered an Order pursuant to the parties' stipulation. ITCA was awarded $8,042.75. The Tuckers were awarded $14,158.06. This Order foreclosures further litigation...

Excerpt: ... The demurrer is OVERRULED as to Plaintiff's seventh cause of action for violation of Labor Code § 226(a). 3. The demurrer is OVERRULED AS MOOT as to Plaintiff's eleventh cause of action for PAGA, and this claim is DISMISSED WITHOUT PREJUDICE at Plaintiff's request. Defendant's motion to strike portions of Plaintiff's complaint is GRANTED IN PART and DENIED IN PART as set forth below: 1. As to item 1 in the notice of motion, the motion to strike...

Excerpt: ...plaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Not every fact which ultimately supports a cause of action needs to be pled, and trial courts are obligated to accept as true even the most improbable factual averments without regard to the pleader's ability to actually prove those facts. See C.A. v. William S. Hart Un...

Excerpt: ...nt initial case management statement filed on August 2, 2019. While AAG objects to this request, CCP § 453 requires the Court to take judicial notice upon a request that complies with the statute, as Plaintiffs' request does here. AAG's objection is OVERRULED and the request for judicial notice is GRANTED, as the case management statement is properly noticeable under CCP § 452(d). AAG correctly notes, however, that the Court may not take judici...

Excerpt: ...ones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. The burden falls on the party seeking to tax the costs to show that they were improper, unreasonable or unnecessary. 612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285. Here, Petitioner challenges the amount of Item 1 (filing and motion fees) and Item 9 (court-ordered transcripts). Filing and motion fees. Filing and motion fees are generally allowable costs. CCP 1033.5(a...

Excerpt: ...ney v. Baker (1999) 20 Cal.4th 23, 33.) Pursuant to Welfare and Institutions Code section 15610.57, neglect means the “negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” The statute lists examples of neglect. (See, e.g., Welf. & Inst. Code, §§ 15610.57(b)(1) [failure to assist in personal hygiene, or in the p...

Excerpt: ... leave of court.” Cal. Civ. Proc. Code § 2032.310(a). A motion for an examination under section 2032.310(a) “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of any of the person or persons who will perform the examination.” Id. § 2032.310(b). The court shall grant the motion for a physical or mental examination under section 2032.310 only for good cause sho...

Excerpt: ...tiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action …. There is no need to require specificity in the pleadin...

Excerpt: ...ement is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. The class definition excludes employees that “executed a release of all claims against Greenstone Materials, Inc.” (Settlement, ¶ A.4.) Does this refer to the release from the DOL settlement? If not, to what does it refer? If it does refer to the DOL settlement, that settlement only appears to release m...

Excerpt: ...roc., § 437c(b)(3)), the Court has exercised its discretion to excuse noncompliance with the Code of Civil Procedure and reach the merits of the motions. Finally, “[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 claims for damages, or one or more issues of duty ….” (Code Civ. Proc., § 437c(f)(1); see also Dunn v. County of Santa Barbara (2006) 1...

Excerpt: ...n by MFI. (Prasher Decl., ¶ 7, Ex. A.) The MSA contains a mandatory forum selection clause that states: “[t]his Agreement shall be governed by and interpreted according to the laws of the Province of Ontario and the laws of Canada applicable therein. The parties attorn to the exclusive jurisdiction of the courts in the Province of Ontario in respect of all matters arising out of or in connection with this Agreement.” (Prasher Decl., Ex. A, �...

Excerpt: ...aintiff alleges that he was directed by the Defendants into the patient examination room where he lay down on the examination table awaiting a medical professional to see him. (Complaint ¶ 6.) The doctor opened the door to enter and apparently the door hit plaintiff's body, as he lay on the examination table. (Id.) Plaintiff alleges that the poor placement of the examination table in the examination room was a dangerous condition of the room. (C...

Excerpt: ...ept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 15...

Excerpt: ...quest for monetary sanctions is DENIED. Defendant/Cross-Complainant Patricia Pisani's evidentiary objections to the Declaration of David Beavers are OVERRULED. Procedural Compliance: On 2-5-19, the Court and counsel held a discussion regarding progress made to resolve issues presented in this Motion. The parties agreed and the Court ordered that a motion may be re-filed as to any remaining issues. (See Minute Order dated 2-5-19 [ROA 386].) The Mo...

Excerpt: ... No. 2.5, the Motion is GRANTED. Defendant contends this is a dental malpractice case and any judgment will be paid out through insurance, so Defendant's private residence information is unnecessary to collect any judgment. Although it is true Defendant's residence address may not necessarily be relevant, this interrogatory is a judicially approved form and provides background information of a party. As to Form Interrogatory No. 15.1, the Motion ...

Excerpt: ... made. (People v. Lim (1941) 18 Cal. 2d 872, 883.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 616.) Generally, a demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine ...

Excerpt: ... Request/Demand for Production Nos. 3, 7-12, 15, 17, 22, 26- 29. Plaintiff also seeks sanctions relating to each motion. For the reasons set forth below, Plaintiff's motion to compel further responses to form interrogatories is DENIED as to No. 15.1 but GRANTED as to Nos. 16.1-16.7, 16.9, and 16.10. The motion to compel further responses to special interrogatories nos. 6, 7, and 8 is GRANTED, subject to the limitations detailed below. The motion ...

Excerpt: ... a motion to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Little v. Pullman (2013) 219 Cal.App.4th 558, 565.) The movant bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. (Id.) In these summary proceedings,...

Excerpt: ...ment 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 that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the ca...

Excerpt: ...mit the award of attorney fees for tort claims. “The limitation of Civil Code section 1717, subdivision (b) (2)—precluding attorney's fees when a complaint is voluntarily dismissed—applies only to contract claims. . . . It does not apply to noncontract claims and thus does not preclude attorney's fees on noncontract claims where the contractual attorney's fees clause is broad enough to encompass noncontract claims.” Drybread v.Chipain Chi...

Excerpt: ...an ad litem, is sustained with 15 days leave to amend. AFH's motion to strike is granted with 15 days leave to amend except as to the 10 th cause of action. As to the 10 th cause of action, the motion to strike is granted without prejudice to Plaintiffs bringing a motion for leave to amend or supplement. The Demurrer by Defendants Cinnamon Creek Westminster Associates L.P. and Arker, Inc.'s to Plaintiffs' SAC is sustained with 15 days leave to am...

Excerpt: ...neral areas: the partnership concerning the recovery-business, the partnership concerning real-properties for the recovery business, and parties' relationship regarding Plaintiff's Greenleaf personal residence. The court finds that -- in pleading all the areas within the first 80 paragraphs of the complaint and incorporating all the allegations then into the individual causes of action (some of which have little do with others) – the individual...

Excerpt: ... into contact information for percipient witnesses. Motion to Consolidate Pursuant to CCP §1048(a), “when actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Trials courts have...

Excerpt: ... exercise reasonable care and skill in undertaking to perform legal services for Plaintiffs”), and Para. 16 (“Had Defendants exercised proper care and skill in providing legal services to Plaintiffs, Plaintiffs would not have lost money in their investments”).] The SAC also alleges the existence of an attorney-client relationship. (SAC at Paras. 10, 12, 17.) The SAC also now alleges more facts as to how exactly MPs failed to adequately / pr...

Excerpt: ...se allegations, plaintiffs' claim for fraudulent omission is barred by the economic loss rule. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 [plaintiff is required to “demonstrate harm above and beyond a broken contractual promise,” in order to recover tort damages].) Other than the absence of allegations as to damages other than those related to their warranty claims, the court finds that plaintiffs' concealment cla...

Excerpt: ...oe City is an unincorporated community located in Placer County, California. Defendant's motion is timely. (Code Civ. Proc., § 396b, subd. (a).) Defendant has presented evidence that he resides in San Mateo County and that the promissory note was not entered into in Orange County. (Reyff, Jr. Decl., at ¶¶ 2, 5-7.) As to where the contract was to be performed, the place of making is deemed to be the place of performance unless a different place...

Excerpt: .... (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the trial court's discretion. (Doppes v. Bent...

Excerpt: ...icient to justify the sealing.” (Cal. Rules of Court, Rule 2.551(b)(1).) The court may order that a record be filed under seal only if expressly finds that the requirements of Rule 2.550(d) have been met. (Cal. Rules of Court, Rule 2.550(d).) The sealing rules, however, are inapplicable to “discovery motions and records filed or lodged in connection with discovery motions or proceedings,” unless the “discovery materials” are “used at ...

Excerpt: ...gatories (set one) as to Donald Grammer and Richard McGrath 5. Plaintiff Baer's Motion to Compel Production (set one) as to Richard McGrath and Donald Grammer 6. Plaintiff Baer's Motion to Compel Response to Request for Admissions (set one) as to Richard McGrath, Dennis Hartmann and Donald Grammer 7. Status Conference 1. The Demurrer Defendants Hartmann, Grammer, McGrath, Banyan LP, Orange Blossoms LP and Pear Tree LP (“the Grammer parties”) ...

Excerpt: ...ck's desire to take discovery from non-party Sound Point relating to an offering of securities by Gruppo Waste Italia S.p.A. (“Waste Italia”). Rimrock purchased certain of those securities from Defendants and alleges that Jeffries' representations made in connection with the marketing of the securities violated California's Blue Sky laws. In its moving papers, Rimrock states that in the course of Waste Italia's concordato proceedings (the Ita...

Excerpt: ...2003) 109 Cal.App.4th 739, 761 [where no prejudice is shown to the adverse party, the liberal rule of allowing amendment prevails]; Code Civ. Proc., § 473, subd. (a)(1).) The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified: “It is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Atkinson, supra, at p. 761.) ...

Excerpt: ...s of concern. Any supplemental briefing shall be filed on or before September 3, 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 class period for Laborers begins on December 20, 2012 because, per the Rodriguez FAC, the parties entered into a tolling agreement on December 20, 2016. Per the Kles complaint, an ide...

Excerpt: ...fenses to be bifurcated, not the propriety of bifurcation itself. Insofar as the motion concerns Defendants Gary Kanter and Denise Stiles-Kanter's (referred to as “Gary” and “Denise” for clarity) fourth affirmative defense (entitled “Indemnity and Contribution”) that Armony's claims are barred by operation of Paragraph 9 of a January 2011 agreement between Armony and Gary (the “Mediation Agreement”), the Court is inclined to treat...

Excerpt: ...ntly 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. (Compl. (ROA 2), ¶ 6; ...

Excerpt: ...he amount of $2,560, payable within 30 days. The requests which are being granted seek documents that are relevant to the subject matter of the action or are reasonably calculated to lead to the discovery of admissible evidence, and good cause exists to compel their production. Plaintiff's Motion to Compel Defendant Canus Corporation to Provide Further Responses to Plaintiff's Special Interrogatories (Set One) (as to #1 and 2) is granted. Plainti...

Excerpt: ...ing him to record his medical expert's examination of Plaintiff, Plaintiff recorded it. Thus, Plaintiff created a document with information relevant to this case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants(2007) 148 Cal. App. 4th 390, 402.) Code of Civil Procedure section 2017.010 provides that any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pe...

Excerpt: ...to the consideration of such motions in the Individual Actions. Coyote Grill's request to disqualify Jose Garay, APLC (the “Garay firm”) in this action, made for the first time on reply, is DENIED WITHOUT PREJUDICE to refiling a properly noticed motion to disqualify. Grounds for Ruling I. Requests for Judicial Notice Coyote Grill requests judicial notice of various documents filed in support of both its opening papers and its reply. (See ROA ...

Excerpt: ...ial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” The requirements of California Code of Civil Procedure Section 36(a) are satisfied here. Plaintiff's counsel David M. Medby has submitted a declaration in which he states that Plaintiff is 86 years old. (Declaration of David M. Medby (“Medby Decl.”), ¶ 4.) Medby's declarat...

Excerpt: ...ng. Whether Northridge lacks standing to sue is not relevant at this stage in the proceedings. WKS is free to raise that defense on an appropriate pleading challenge, on a motion for summary judgment, or at trial. And even if Northridge lacks standing to sue, it may be that Lundin does have standing to sue. Denying Lundin leave to amend might prejudice him by depriving him of the right to raise a potentially valid claim, defense, or legal theory ...

Excerpt: ...xpert discovery. Defendants also move for an order granting them leave to augment their expert witness designation by including Ross Nathan, M.D. As to the first request, the court may, upon motion by any party, “grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” Code Civ. Proc. § 2024.050(a). In exercisi...

Excerpt: ...des appeared for that hearing, and the application was granted on 6/27/19. But Plaintiff then failed to timely file or serve either his Opening Brief or his Reply. (See 6/27/19 M.O.) Plaintiff thus did not comply with the briefing requirements for this Motion. The Motion fails in any event on the merits. Plaintiff argues that under C.C.P. § 657(1), a new trial should be granted based on evidentiary rulings concerning testimony from Dr. Pressman ...

Excerpt: ...rth below, the court GRANTS the motion for summary adjudication as to Issue 2 and the 2 nd cause of action, and as to Issue 4 and the 5 thcause of action. The motion for summary adjudication is DENIED as to all other issues and causes of action. The motion for summary judgment is DENIED. Issue 1 1st COA: Violation of Labor Code 432.7 Whether the 1 st COA has no merit because Plaintiff cannot establish that Servite considered any record of arrest ...

Excerpt: ...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 cause of action or a defens...

Excerpt: ... FAA applies. A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron Corp. v. Ortho Diagnostic Sys. Inc.(9th Cir.20...

Excerpt: ...job or contractor names, dates, invoice numbers, and amounts. The Special Interrogatories (“SROGs”) at issue inquired about specific entries or groups of entries in the Summary. The responses at issue as provided by Plaintiff are inadequate. For SROG No. 52, Plaintiff asserted that a response would require a compilation from “voluminous documents in plaintiff's possession,” referred MP to subpoenaed materials without specifying any specif...

Excerpt: ... – (3) provide as follows: “(b) ‘Vexatious litigant' means a person who does any of the following:” “(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial...

Excerpt: ...erning defendants' alleged failure to properly assess and accommodate his special needs is to show that defendants had adequate notice that a dangerous environment could be created at school. As the United States Supreme Court stated in Fry v. Napoleon Community Schools, 137 S.Ct. 743 (2017), Section 1415(l)'s exhaustion requirement “hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education” or “FAPE,”...

Excerpt: ... and default judgment under CCP § 473(b) which provides that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” CCP § 473(b) requires that the motion be filed within a reasonable time not exceeding six months after the judgment, dismissal or...

Excerpt: ... of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 803. The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271. In the fir...

Excerpt: ...ager of the TJ Maxx store in which Plaintiff worked. Plaintiff alleges that there was an effort by management to “whitewash” the store, with employees being instructed to not converse in Spanish. Plaintiff attempted to bring this to the attention of TJ Maxx's Human Resources Department, but there was no response and no investigation. After requesting a brief amount of time off to recover from surgery, Plaintiff's employment was terminated on ...

Excerpt: ...timony of nine Ford employees taken in other matters. The Court has not yet ruled on this motion, although in other related cases pending in Orange County Superior Court, substantially identical motions in limine have resulted in some, but not all, of this testimony being held inadmissible. The present dispute focuses on the writ petition pending before the Court of Appeal, Second District, Division One in Berroteran v. Superior Court (B296639) (...

Excerpt: ...sed by inexcusable neglect or avoidance of service. (See Code Civ. Proc. § 473.5; see also Trackman v. Kenney(2010) 187 Cal.App.4th 175, 180.) Finally, defendant has also not shown with admissible evidence that the entry of default was due to extrinsic fraud or mistake. The court grants plaintiff's request for judicial notice. It will take notice of the court records' existence, filing, and legal effect – but will not take notice of the truth ...

Excerpt: ... Carlos Amezcua. Plaintiff Juan Carlos Amezcua filed a request for dismissal on 3/26/19, which the court entered that same day. (ROA 93.) The Motion is CONTINUED as to Plaintiff Luis Amezcua. Pursuant to CCP § 128.7(c)(1), a motion for sanctions cannot be filed until 21 days after it has been served in order to afford the party being served with the opportunity to correct the violation. Here, it is unclear whether Defendants have served the moti...

Excerpt: ...very. 2. Motion to Compel Deposition Moving Party: Plaintiff Isabella DeAngelo Responding Party: Defendant Lutheran High School Association of Orange County dba Orange Lutheran High School Motion 2 Ruling: Plaintiff's Motion to Compel Appearance and Testimony at Deposition denied. Plaintiff's request for sanctions is granted in part and denied in part. Mr. Moritz's deposition is limited to the methods used by Mr. Moritz to gather discovery and hi...

Excerpt: ... their posttrial settlement. The court need not assign blame – the parties either completed their settlement or they did not. Because this case has not settled, the court will issue its ruling forthwith. Plaintiffs' request for posttrial damages and relief is denied without prejudice. They have not shown the court retained jurisdiction to enforce the settlement by way of motion. (Cf. Code Civ. Proc., § 664.6.) The relief plaintiffs seek now wa...

Excerpt: ...App.4 th 1120, 1126. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. 1st COA: ...

Excerpt: ...nts contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The Court DENIES Defendant's request for judicial notice of Exhibits 2 through 6 on the grounds the exhibit are not properly authenticated and the exhibits are not relevant to the issues on demurrer. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4 th 26, 45, FN9; see also Gbur v. Cohen (1979) 93 Cal. App. 3d 296, 301.) As to the 1 st cause ...

Excerpt: ...ncrease the page limit on the moving and opposition briefs to 20 pages. Petitioner's opening brief is over 20 pages and uses a font size smaller than 12 points, in violation of California Rules of Court 2.104 and 3.1113(d). The opposing brief is also over 20 pages. The parties are admonished to comply with all applicable court rules in future filings. Based upon an independent review of the evidence, the court finds that substantial evidence supp...

Excerpt: ... and Joseph Craciun (Doe I) only. This motion for attorney fees is brought on two grounds: Code Civ. Proc., § 425.16 (c) (1) and Civ. Code, § 5975 (c). “Attorney fees authorized by statute or by contract are included in an award of costs.” Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1027. Attorney Fees for Anti-SLAPP Motion: “[U]nder Code of Civil Procedure section 425.16, subdivision (c), any SLAPP defendant who brings ...

Excerpt: ...ime limit for bringing a motion to compel further responses to a document demand is 45 days from the service of a verified response. The statutes are ambiguous as to whether their 45-day deadlines are applicable to a response that is made up only of objections and therefore need not be verified. There is no known authority on this point. Motion to Compel Answers, Cal. Practice Guide, Civ. Proc. Before Trial, Ch. 8F-7, §8:1150.8. However, since r...

Excerpt: ...sponses to special interrogatories, set one; and for sanctions against plaintiffs and their counsel in the amount of $2,530.00. Facts/Overview: This is a lawsuit claiming a breach of the implied warranty of habitability and constructive eviction. Plaintiffs allege they rented an apartment from defendants. During plaintiffs' tenancy, defendants began construction on other units in the complex. One of the construction workers allegedly negligently ...

Excerpt: ...d several written warranties as outlined in the Manufacturer's Warranty Booklet. It turns out that Plaintiff was purchasing the Vehicle for use by Nestor Morales, his brother in law. Mr. Morales reimburses Plaintiff for the monthly loan payments for the Vehicle and the vehicle registration fees. Shortly after taking possession of the Vehicle, Plaintiff Felix alleges that he experienced the defects listed below, and that the defects substantially ...

Excerpt: ...sky as trustees for the 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 the lead case alleges four C/As: (1) quiet title; (2) cancellation of instrument; (3) slander of title; (4) aiding and abetting slander of tit...

Excerpt: ... well. 1. In its May 3, 2019 minute order, the Court noted that the aggrieved employees' release “may not extend to future claims by aggrieved employees for wages and other ‘victim-specific' remedies, even those that can be characterized as part of a ‘civil penalty' recoverable under Labor Code § 558 and that are recovered as part of the settlement of this action.” (ROA 22.) Section 4 of the revised settlement agreement nonetheless relea...

Excerpt: ...shall be filed on or before August 14, 2019. If a revised settlement agreement and/or notice is submitted, a redline showing all changes, deletions, and additions must be submitted as well. 1. The Settlement and Release (“SAR”) recites, and all parties agree, that there are 30 aggrieved employees. Plaintiffs' moving papers and Defendants' joinder papers say that Defendants determined this to be the number, yet there is no explanation of how i...

Excerpt: ...a business entity, form unknown; (5) Boeing Test and Engineering, a business entity, form unknown; (6) Enterprise Core Organization, a business entity, form unknown; (7) Gregory Gracey; (8) Heidi Capozzi; (9) Jeffrey Recktenwald; (10) Peter Rosenbloom; (11) Chris Roshak; (12) Phillip Downs; (13) Richard Harwin; (14) Steve Glogoza; (15) Amy Bartram; (16) Gina Kim; (17) Erica Maloney; (18) Joann Urtula. Plaintiff's complaint alleges 15 C/As: (1) di...