Excerpt: ...ed a first amended complaint against the same defendants alleging the following seven causes of action: 1. Declaratory relief, 2. Breach of contract, 3. Breach of implied covenant of good faith and fair dealing, 4. Fraud – concealment, 5. Accounting, 6. Unjust enrichment, and 7. Unlawful and unfair business practices in violation of Business and Professions Code section 17200 et seq. On June 5, 2019, defendants answered the first amended compla...

Excerpt: ...lief. He contends that he holds a 100% ownership interest in MGH Painting Inc. and that his ex-girlfriend, Defendant Uliana Kozeychuk, has no ownership interest therein. She claims that he orally promised her a 1/3 ownership interest. On 8/13/18, Ms. Kozeychuk filed her own action, Kozeychuk v. Honetschlager, Case No. 2018-1011885. (See Plaintiff's RJN at Ex. 1.) Her complaint alleges five causes of action for: 1. Breach of Oral Partnership Agree...

Excerpt: ...lle Contreras and Ramon Flores (collectively, defendants), alleging two causes of action for (1) motor vehicle negligence and (2) general negligence. This is a personal injury action arising out of two separate auto collisions occurring within 30 days of each other. Plaintiff alleges defendant Contreras negligently rear-ended her on May 31, 2016, causing plaintiff to sustain injuries and damages. Plaintiff alleges that while she was still sufferi...

Excerpt: ...ed; No billing records of who did what work; A reduction in requested fees seems appropriate; Grant fees in the amount of $4390 plus costs of $229.20; Leave to File Amended Complaint Pltf admits that the principal reason she seeks leave is to add real property causes of action in order to re-file a lis pendens; Real property claims have not been stated in the 6 th and 7 th causes of action; The facts alleged do not show that Western Tap had a leg...

Excerpt: ...ns and prayer. 3. An order expunging lis pendens Facts/Overview: This is wrongful foreclosure action. The complaint consists of the following causes of action: 1. Lack of title and standing 2. Negligent misrepresentation 3. Promissory estoppel 4. Breach of implied duty of good faith and fair dealing 5. Violation of CCs 2924.14 and 2923.55 6. Violation of homeowners' bill of rights 7. Violation of Business & Professions Code, § 17200 8. Cancellat...

Excerpt: ...$530,000.00 of the contract price, that the initial contractor was unlicensed. Plaintiff retained a new contractor to complete the remodel and repair substandard work. The second contractor, Lee, stated he could do the work for $190,000.00, but then Lee introduced Plaintiff to Defendant D2S, who could finish the job for roughly ½ the price. Plaintiff ended up paying Defendant DS2 $162,682.31. Ultimately, Plaintiff found that the remodeling work ...

Excerpt: ...amily 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 concerns a property in Newport B...

Excerpt: ... include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery.” Code of Civil Procedure section 2023.030, subdivision (c), provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the followin...

Excerpt: ...on for Summary Adjudication is also DENIED. The Court considers this as a Motion for Summary Judgment only. To the extent the Separate Statement purports to support a motion for summary adjudication, it does not comply with California Rule of Court Rule 3.1350(b). The “issues” are not stated specifically in the Motion and then stated, “verbatim,” in the Separate Statement. This is a ground for denial of the Motion for Summary Adjudication...

Excerpt: ...term durations extending through 2020, only to terminate the Agreement without cause thereafter. Experian further misled Prancer by misrepresenting the grounds of the termination as for cause and refusing to provide Prancer with its rationale for terminating its contract to this day. (FAC, ¶ 48.) This Court previously found Experian properly terminated the Agreement under Section 2 of the STAC and Section 2 of the Consumer Services Schedule. (Se...

Excerpt: ...es Nos. 1 & 2: OLHS: Willful Misconduct & IIED & Issues Nos. 10, 11 & 12: Antoinette Duran: Willful Misconduct, IIED & Punitive Damages. Plaintiff opposed the summary adjudication on the following issues: Issues Nos. 4 & 7: IIED: Madeline Clark & Crystal Duran; Issues Nos. 3 & 6: Willful Misconduct: Madeline Clark & Crystal Duran; Issues No. 5 & 8: Punitive Damages: Madeline Clark & Crystal Duran. Issue Nos. 9: Negligence: Antoinette Duran. Willf...

Excerpt: ...ach of the four patients that received treatment. “While the ‘allegations [of a complaint] must be accepted as true for purposes of demurrer,' the ‘facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary to the allegations in the pleading, will be given precedence.'” Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767. The forms included a “Benefits and Eligibility Disclaimer,�...

Excerpt: ...f the Homeowner Bill of Rights (“HBOR”) that 1) was not corrected or remedied prior to the Trustee's Deed Upon Sale and that 2) caused Plaintiff actual damage. (Code Civ. Proc., § 2924.12(b).) The demurrer to the first cause of action is sustained. With respect to the Second Cause of Action for Civil Conspiracy, a conspiracy claim requires a plaintiff to plead facts to establish: “(1) formation and operation of the conspiracy and (2) damag...

Excerpt: ...n 17200. Plaintiff alleges Defendant owns, controls and maintains wood burning fire pits on its properties, known as North Lake Beach Club and South Lake Beach Club, and that the “burning of firewood” in these fire pits “results in exposures to a number of chemicals . . . which are included on the Proposition 65 List”; however, “Defendant has failed to provide clear and reasonable warnings regarding the risk of exposure.” (Compl. at �...

Excerpt: ...tion and sustained with leave to amend as to the fourth and seventh causes of action. Wells Fargo's request for judicial notice is granted. Wells Fargo's unopposed motion to strike is granted. Defendant Fay Servicing LLC and U.S. Bank NA's joinder in Wells Fargo's demurrer is permitted but the demurrer to Plaintiff seventh action for violation of B&P Code § 17200 is overruled as to U.S. Bank. Plaintiffs' motion for an order consolidating this ac...

Excerpt: ...e diligence have been presented earlier. (Code Civ. Proc. § 1008, subd. (a); see also Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1200.) Plaintiffs' alternative request for a new trial is untimely in two ways. First, plaintiffs failed to file and serve a timely notice of intention. (See Code Civ. Proc., § 659.) Second, plaintiffs...

Excerpt: ...nt showed she does not have an adverse claim to plaintiff's interest in the subject property. The adverse claimant is the judgment creditor under the recorded support order. That would be plaintiff's ex-wife. (See Fitzgerald decl. ¶¶ 6, 8, Ex. 3; 5/16/19 Notice of Errata, Ex. A; Chen decl. ¶ 3, Ex. B; Hibert decl. ¶¶ 6-7; see also Code Civ. Proc., §§ 680.230, 680.240, 680.270, 697.320.) Plaintiff fails to meet his shifted burden to show a ...

Excerpt: ...et its burden to show a written arbitration agreement exists that covers plaintiff's claims and is governed by the FAA. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Shepard v. Edward MacKay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101 [FAA]; see also Remy decl. ¶¶ 4-6 & Ex. A.) Plaintiff does not dispute signing the agreement. His failure to recall doing...

Excerpt: ...must expressly find facts that establish, among other things: (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; and (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed. (Cal. Rules of Court, rule 2.550, subd. (d).) The party moving to have a record sealed bears the burden of proving s...

Excerpt: ...of Holistic Healing in contempt of the TRO and Preliminary Injunction Order is denied without prejudice. Defendant Adam's request for judicial notice is granted. As an initial matter, the court finds that it has jurisdiction over Defendant Adam. (Donovan v. Superior Court (1952) 39 Cal.2d 848, 851; see also Darden v. Superior Court (1965) 235 Cal.App.2d 80, 82 [a general appearance by filing a response to a contempt citation precludes the contemn...

Excerpt: ...n for attorney's fees as the prevailing party at trial, pending the outcome of related proceedings instituted by Newport Crest in Plaintiff's bankruptcy case. (See ROA 1464.) On March 13, 2018, the Court, having been informed that the bankruptcy case was pending before the Ninth Circuit Bankruptcy Appellate Panel, extended the stay “until a ruling is made by the Bankruptcy Court Appellate Panel.” (ROA 1496.) Meanwhile, on January 22, 2019, th...

Excerpt: ... Defendant filed its answer. The answer included a general denial, refuting the alleged violations. It also included several affirmative defenses, including a defense that Plaintiff lacked standing to bring the claims. The same day, Defendant served Plaintiff with a Demand for Arbitration with JAMS filed, not by NGC but by its subsidiary, Northrup Grumman Systems Corporation (NGSC). (Warbus Dec., ¶ 2). The arbitration demand sought “declarator...

Excerpt: ... is submitted, a redline version showing all changes, deletions and additions shall be submitted as well. As set forth below, the Court continues to have serious concerns about how carefully the settlement materials were drafted and whether the settlement is reasonable. Furthermore, the Court notes that a number of key items in its prior minute order on this matter (ROA 83) appear not to have been addressed at all in Plaintiff's supplemental brie...

Excerpt: ... to amend pleadings are directed to the sound discretion of the court. “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc., § 473, subd. (a)(1); see also Code Civ. Proc., § 576.) The court's discretion 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 i...

Excerpt: ...he state's Department of Housing and Community Development has exclusive jurisdiction over mobile home remodeling projects. Rather, Public Resources Code §30600(a) requires Petitioners to obtain a CDP before performing or undertaking any development in the coastal zone. The statutes on which Petitioners rely apply only to local entities, like cities and counties, but the California Coastal Commission is a statewide entity. Moreover, the Californ...

Excerpt: ... was filed and electronically served on June 4, 2019 (ROA 1065), Plaintiff's opposition was not filed until July 10, 2019 (ROA 1097.) The opposition was due 10 days after the JNOV papers were filed, or June 14, 2019. (See CCP §§ 629(b), 659a.) Plaintiff's opposition was thus 26 days late. This is more than sufficient reason for the Court to refuse to consider the opposition at all (see Cal. Rules of Court, rule 3.1300(d)), but in light of the p...

Excerpt: ...ach of implied contract “addresses work completed from May 16, 2016 through June 30 2016, which is barred by the statute of limitations found in Code of Civil Procedure § 339(1)” (moving papers at 5:11-14); and that the 2 nd C/A for breach of the implied covenant fails for the same reasons (moving papers at 5:15-16). MP is incorrect. The complaint alleges that plaintiff worked for defendants and that “[u]p until May of 2016, Plaintiff had ...

Excerpt: ...the third amended complaint. Likewise, there are no facts pled in the 3 rdAC that would give rise to a claim that these demurring defendants are estopped from claiming that they are not plaintiff's landlord. Plaintiff alleges that he has an oral, month to month sublease with defendant Stein, not with these defendants. (See 3 rdAC ¶ 14). Additionally, both causes of action appear barred by the applicable statutes of limitations. A claim for damag...

Excerpt: ...Aguilar, 25 Cal.4th at 851. A defendant moving for summary judgment may prevail on the motion in one of three ways: (1) by affirmatively negating at least one of plaintiff's essential elements; (2) by showing that plaintiff does not have, and cannot get despite adequate discovery efforts, evidence to establish an essential element; or (3) by presenting evidence as to each element of an affirmative defense upon which defendant bears the burden of ...

Excerpt: ...ntrol of any dog shall cause or permit, either willfully or through failure to exercise due care or control, the dog to be upon any private property unless such dog is contained or restrained thereon by a fence, wall, substantial chain, leash not exceeding six feet in length, other appropriate physical restraint, or is under the charge of a person competent to exercise care, custody, and control over such dog. (b) No person owning or having charg...

Excerpt: ...ause of Action for Breach of Contract The Lessees allege Lessor breached the parties' restaurant lease (the “Lease”) by failing and refusing to offer Lessees the “right of first refusal” to renew their lease of the property located at 2318 West Newport Blvd., in Newport Beach, which is operated as a restaurant. The “right of first refusal” can be found in Article XX, section 20.02 of the Lease, under the heading, “Lessee's Rights Ex...

Excerpt: ...owner's insurance policies. Plaintiff alleges that his home was damaged by smoke and soot as a result of the Holy Fire in August 2018. (Compl. ¶¶ 15-16.) Plaintiff does not allege that his home was actually damaged by flames, only smoke, soot, etc. His homeowner's insurance policy has a Wildfire Smoke Sublimit that limits coverage to smoke damage from wildfires to $2,500 if a claim is not made within 45 days. (Compl. Ex. 1, at 5.) Plaintiff all...

Excerpt: ...o Determine the Construction, Validity, Ascertainment of Beneficiaries and Removal of Trustee; (2) Statement of Decision of the Court issued 1/28/19; and (3) Notice of Appeal filed by Respondent Veronica Orozco. Defendants' special demurrer is on the ground of another pending action, pursuant to Code of Civil Procedure section 430.10, subdivision (c). “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or a...

Excerpt: ...re Before Trial (The Rutter Group 2017) ¶ 9.53.1a.) APPLICABLE LAW The standard governing motions for summary judgment and summary adjudication is settled. “[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 faci...

Excerpt: ...been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Coy v. Sup.Ct. (Wolcher) (1962) 58 Cal. 2d 210, 220-221; Fairmont Ins. Co. v. Sup.Ct. (Stendell) (2000) 22 Cal. 4th 245, 255.) Here, in response to RFA 1, ZOI responded, “Denied.” But in response to Form Interrogatory 17.1 relating to that interrogatory, ZOI wrote, “No admissions were made.” This is improper. In the ...

Excerpt: ...cond, third, fifth and sixth causes of action are time-barred, summary adjudication is GRANTED as to the first and second causes of action (negligence and breach of fiduciary duty) and DENIED as to the remaining causes of action (fraud, equitable indemnity and contribution). In light of this ruling on Issue No. 6, the motion for summary adjudication is DENIED AS MOOT as to Issues No. 1 and 2. The remainder of Cross-Defendants' motion for summary ...

Excerpt: ...rt must apply a balancing test and weigh the actual or potential abuse of the class action procedure against the potential benefits that might be gained by allowing the discovery. Id; Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300-301. See also CVS Pharmacy, Inc v. Superior Court (2015) 241 Cal.App.4th 300, 313. The facts before the Court establish that granting these discovery motions would create a significant potential for abuse of t...

Excerpt: ...laint (“SAC”) of Plaintiff T-12 Three, LLC is GRANTED IN PART and DENIED IN PART for the reasons set forth below. The Court also DENIES Turner's request for attorney's fees. The Court recognizes that the amendments to the SAC go beyond the scope permitted in the April 26, 2019 minute order granting T-12 leave to amend. As the Court has previously stated, however, motions relating to the pleadings in this matter that elevate form over substanc...

Excerpt: ...or control the premises where plaintiff was injured. Plaintiffs have not produced sufficient evidence to show defendant, as the parent company of the owner of the premises (GWGG) sufficiently manipulated GWGG's actions to as to impose liability against Moving Party as a parent company of GWGG. To prevail here, plaintiff must show “specific manipulative conduct” by the parent toward the subsidiary that relegates the latter to the status of mer...

Excerpt: ... set aside said default earlier, was caused by his own mistake. Counsel admits that he mistakenly failed to draft a stipulation to set aside the default, that he misunderstood a February 2019 request for dismissal to apply to his client, and that he failed to follow up with WRW's counsel on the need for a stipulation or a proposed answer. (Arsenian Decl. ¶¶ 13-14.) In light of counsel's admission of fault, relief from default is mandatory, not ...

Excerpt: ... or her identity. Where it is clear to the court that discovery of the defendant's identity is necessary to pursue the plaintiff's claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has been made. When there is a factual and legal basis for believing libel may have occurred, the writer's message will not be protected by the First Amendment. . . . Accordingly, a...

Excerpt: ...y the California Labor Code, including, inter alia, section 226; i. Whether Defendants kept complete and accurate payroll records as required by the California Labor Code, including, inter alia, section 1174(d).” 3. Paragraphs 33 and 34 of the complaint, in their entirety. 4. Paragraphs 42 and 43 of the complaint, in their entirety. 5. At page 10, line 18: “or penalty.” 6. Paragraphs 57 and 58 of the complaint, in their entirety. 7. At page...

Excerpt: ...y the objecting corporations. Plaintiff's request for judicial notice is granted. (Ev. 452(h).) The subpoenas seek directly relevant evidence regarding plaintiff's fraudulent transfer claims. The subpoenas seek records which not only belong to the objecting corporations, but also to the named defendants, and thus the records are directly relevant to show the transfer of any assets between defendant Xin Li, the alleged obligor, and the other defen...

Excerpt: ...h a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) the examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive; (2) the examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).) The physical examinat...

Excerpt: ...ce the petitioner has met that burden, the burden shifts to the party opposing arbitration, to produce evidence to show by a preponderance “any fact necessary to the defense." (Id.) The declaration of Sandra M. Putnam purports to support the contention there is a valid arbitration agreement between the parties. However, as pointed out by plaintiff, Ms. Putnam's declaration in support of the moving papers is not admissible. A motion may be suppo...

Excerpt: ....App.4th 1047, 1060. An electronic signature may be authenticated “in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” CC § 1633.9. An electronic signature or agreement may be established by evidence that the signature and agreement could only be given by one using a unique login ID and password and establishing ...

Excerpt: ...ployee Guide and acknowledged and agreed to by Plaintiff. Plaintiff opposes the motion, asserting: (i) she entered into a subsequent agreement; (ii) the agreement is the result of fraud, duress and economic compulsion; and (iii) the agreement is both procedurally and substantively unconscionable. In addition, Plaintiff argues that Pegatron cannot enforce that agreement because it is not a signatory to the agreement and is not bound thereby, so th...

Excerpt: ... resulting damages to plaintiff. (Reichert v. General Insurance Co.(1968) 68 Cal. 2d 822, 830.) Here, Plaintiff has established a prima facie case by showing that each element for a breach of contract cause of action has been met. There was a contract between Reprime and Assignor for the lease of equipment ( the “Lease”). (UMF 1-3.) Thereafter, Assignor sold/assigned the Lease to Plaintiff (the “Assignment”). (UMF 4-5.) Assignor and Plain...

Excerpt: ...ce, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821. A demurrer lies where “[i]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied in fact.” Code Civ. Proc. § 430.10(g). Here, Defendant argues that Plaintiff's breach of contract cause of action (1) fails to allege that a co...

Excerpt: ...for example, the defendants had conflicts of interest and entered into the Consulting Agreement in bad faith. Fourth and Fifth Causes of Action The defendants fail to point out where in the Second Amended Complaint the plaintiff alleges a specific damage claim. Thus, causes of action for accounting are proper. Sixth Cause of Action This cause of action is not barred by the two-year statute of limitations because it relates back. This cause of act...

Excerpt: ...nds that the action, which was filed on 11-28-18, is untimely under the one-year limitations period in Code Civ. Proc. § 340.5. Section 340.5 provides in relevant part: In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasona...

Excerpt: ... 2nd cause of action for unfair business practices The UCL (B&P Code § 17200, et seq.) prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” A party only has standing to assert a Section 17200 claim if he or she has (i) “suffered injury in fact,” and (ii) lost money or property as a result of such unfair competition.” (Bus. & Prof. Code § 17204; see also Kwikse...

Excerpt: ...t time and resources. “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549 [citing Lab. Code, § 2699(l)(2)].) As to the Settlement 1. It is unclear whether the definition of “aggrieved employees” in Recital B applies to the Settlement, is a description of the definition contained in the LWDA notice, or bo...

Excerpt: ... that Rolen has rendered to the Board. For the following reasons, the motion is granted in part and denied in part. Evidentiary objections: Objections numbers 3, 6, 7, 8, 9, 11, and 12 to the Declaration of Nina Boyd are sustained, and the remainder are overruled. Objections numbers 15, 17, and 18 to the Declaration of Jeffrey Riel are sustained, and the remainder are overruled. The objections to the Declaration of John Bedell and Mike Matsuda ar...

Excerpt: ...e motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. Code Civ. Proc. § 1008(a). A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. ...

Excerpt: ...named in the Tenth Cause of Action. The Tenth Cause of Action names “all Defendants.” But at best, Plaintiff directs his motion only to Inc. and perhaps also the conduct of Phillip Fusco. There is no evidence presented against Shokoufeh Fusco, Stephen Fusco, or Antonio Bevaqua. The Court notes three other problems that are not addressed by the parties in the briefing. First, Stephen Fusco and Antonio Bevaqua, though named as Doe defendants on...

Excerpt: ... at the cafe, plaintiff was caused by this vertical deviation to fall. Plaintiff claims that this was a dangerous condition that caused him to suffer injuries as a result. Defendants' argument is that the step had been painted bright yellow prior to the accident, and that plaintiff himself had testified that, had he seen the yellow marking, he would have been physically capable of stepping up and entering the bathroom. (See Def.'s Ex. B at 42:7-1...

Excerpt: ...et the standard of care in performing the procedure, and that their conduct did not cause Plaintiff's injury. Dr. Ruffalo attests that he has reviewed Plaintiff's treatment records from University of California Irvine, and the records reviewed are attached to the motion. Medical records may be used as the basis for an expert medical opinion, but they must be attached and properly authenticated. Otherwise, an expert medical opinion lacks an eviden...

Excerpt: ...n or free speech under the United States Constitution or the California Constitution in connection with a public issue. Bergstein v. Stroock & Strook & 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 first step, the defendant bringing an anti-SLAPP motion must make a...

Excerpt: ...a Group, LLC, Viet Performing Arts Center, Inc., Vietface Shopping Networks, Inc., and Vietface Foundation, Inc. purport to join the motion and alternative motion. However, there is nothing before the Court discussing the propriety of the joinder, and a Court may not grant a party's motion to join another party's summary judgment motion unless the joining party has submitted its own separate statement with the joinder. Frazee v. Seely(2001) 95 Ca...

Excerpt: ...t forth below. A. Burden of Proof On a petition to compel arbitration, the only question before the trial court is whether it should specifically enforce the arbitration agreement. In making this preliminary determination, the trial court must follow the procedure outlined by the California Supreme Court in Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 412-414. When a petition to compel arbitration is filed and acco...

Excerpt: ...each/control. CCP §2030.220. Even if portions of an interrogatory are objectionable, the remaining answerable portion must be substantively addressed. CCP §2030.240; Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1188-1189. Form Rogs to Diane Stern Plaintiff contends that defendant's refusal to answer FRog 2.5 is a misuse of the discovery process. Therein, plaintiff asks for defendant's present and recent residence address(e...

Excerpt: ...o the Third Amended Complaint. (See ROA 254, 257.) On April 22, 2019, defendant Preferred Hotel Group filed an ex parte request to continue the then trial date of May 20, 2019 (see ROA 264), on the ground that it had been recently brought in and had a right to file a motion for summary judgment. The Court granted the ex parte request and set the current trial date of October 21, 2019. This date was selected in open court with the assistance of co...

Excerpt: ...orneys' fees that may be awarded. Subdivision (a) of CCP section 1030 provides that, “[w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding.” Subdivision (b)...

Excerpt: ...ed section 474 to mean that plaintiff must be not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant. General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593–594. This requirement is satisfied even if plaintiff's lack of knowledge is due to his or her own negligence; “section 474 does not impose upon the plaintiff a duty to go in search of facts she d...

Excerpt: ...td. was properly served with the complaint and summons. Plaintiff argues it properly served Teva Ltd. through its California-based subsidiary, Teva Parenteral Medicines, Inc. (“TPM”). The parties agree that TPM is an indirect subsidiary of Teva Pharmaceuticals USA, Inc. (“Teva USA”), which is an indirect subsidiary of Teva Ltd. (See e.g. Plaintiff's Supp. Brief, p. 7:15-18.) “Delivery by hand of a copy of any process against a foreign c...

Excerpt: ... evidence to consider the actual amounts it paid for product liability coverage and correct its tentative statement of decision. Under subdivision (a) of CRC 3.1590, after a trial of fact lasting more than one day, the court must announce its tentative decision by an oral statement or written statement filed with the clerk. This tentative decision does not constitute a judgment and is not binding on the court. CRC 3.1590(a). The court may enter a...

Excerpt: ... of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” The purpose of CCP § 526(a)(3) is to preserve the status quo pending litigation. (See, Stockton v. Newman (1957) 148 Cal.App.2d 558, 563.) First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Superior Court ...

Excerpt: ... § 472(a).) ACSC, not the American Automobile Association, Inc. (“AAA”), is Plaintiff's employer. Plaintiff's offer letter, W-2 forms, paystubs, and other employment documents confirm this. (Philipp Decl., Exs. A-D; Tercero Decl., Ex. A.) ACSC is a party to the arbitration agreement at issue. (4/16/19 Alexander Decl., ¶ 4, Ex. A, p. 1.) The arbitration agreement is governed by the FAA. (See 4/16/19 Alexander Decl., ¶ 3; Allied-Bruce Termin...

Excerpt: ...amily 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 concerns a property in Newport B...

Excerpt: ...se on the lien; SLS was no longer the servicer of Pltf's loan after April, 2014; Complaint filed on 7/19/18 – more than 4 years later; Pltf's claims against SLS are therefore time- barred; 1 st cause of action [fraud]: Pltf has not alleged with specificity knowingly false statements, by identified individuals with authority to speak for Nationstar or U.S. Bank that Pltf reasonably relied on to her detriment; 2 nd, 3 rd, 8 th causes of action [[...

Excerpt: ...he vehicle. He contends he suffered a fracture of his hand and a bloody face as a result of the encounter. The demurrer is unopposed. Analysis: The entire body of the complaint reads as follows: I was pulled over for broken tail light by Santa Ana Police Dept. They violated my fourth amendment rights by pulling me out of my car without probable cause. I was handcuffed, searched and beaten up resulting in a fracture of my hand and a bloody face. M...

Excerpt: ...Aspen Medical Products. The complaint alleges causes of action for: (1) Discrimination (FEHA); (2) Failure to Prevent Discrimination (FEHA); (3) Retaliation (FEHA); (4) Wrongful Discharge in Violation of Public Policy; (5) Harassment (FEHA); and (6) Failure to Prevent Harassment (FEHA). No trial date has been set. Analysis: Timeliness As Responding Party concedes, his opposition was untimely filed. The court has discretion to not consider late fi...

Excerpt: ...ion of the Automobile Dealers' Day in Court Act (15 U.S.C. §1222). On March 4, 2019, the court granted defendants' motion for nonsuit, and on March 25, 2019 judgment was entered. The judgment decreed that defendants were the prevailing parties, that Surf City “shall take nothing” by way of its complaint, and that defendants were entitled to costs. Moving Parties contend as follows: Defendants are the prevailing parties and are entitled to th...

Excerpt: ...d her late husband. The causes of action alleged are: 1. Breach of promissory note 2. Common count: money lent 3. Accounting. On 3/19/18, defendant filed a cross-complaint against his ex-wife (daughter of plaintiff), known as Nikki, for: 1. Indemnification 2. Partial equitable indemnity 3. Equitable contribution 4. Apportionment of fault 5. Declaratory relief A jury trial is set on 11/18/19. Moving Party contends as follows: At the outset of this...

Excerpt: ...9 Cal.3d 311, 318.) “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.” Page 2 of 3 (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605....

Excerpt: ...nt Excel was advised that it was the successful bidder for the scrap. The terms of the bid required Excel to start moving the scrap within two days and pay the bid price two days after taking possession of the scrap. Excel timely removed the scrap, re- sold it to a third party, and failed to timely pay the City. The parties agreed that Excel would pay the bid amount over time at the rate of $10,000.00/mo. Excel made one and one-half payments and ...

Excerpt: ...n Alicia Parkway on 6/13/16, when a vehicle owned by Defendant Edward H. Kang and driven by Defendant Joy Haeran Kang collided with Plaintiff's vehicle, causing him personal injuries. Plaintiff filed his complaint against Defendants Edward H. Kang and Joy Haeran Kang on 6/8/18. The complaint alleges causes of action for: (1) Negligence; and (2) Negligence Per Se. Defendants answered the complaint on 9/4/18. The case is set for trial on 9/30/19. M...

Excerpt: ...contends that although the sheriff later returned most of plaintiff's personal property, the Mustang was not returned. Plaintiff contends the sheriff told him the car had been “lost.” The complaint consists of one cause of action for negligence and one cause of action for intentional tort. The County of Orange has been dismissed from this case. Plaintiff contends defendant Kenny's Auto Service was the entity that took possession of the 1965 M...

Excerpt: ...ong with not receiving the required rest and meal breaks. Both Plaintiffs' employment was terminated by Defendant Mak Wave after they asked for a copy of their employment files. The Tokura Defendants are alleged to be principals of Mak Wave. Plaintiffs filed their complaint on 2/2/17 against Defendants Mak Wave, Inc., Masafumi Tokura, and Kumiko Tokura. The Complaint alleges causes of action for: (1) Unpaid Wages; (2) Failure to Provide Meal Brea...

Excerpt: ...raud; (6) concealment; (7) common counts based on a writing; (8) unjust enrichment; (9) conspiracy; (10) request for accounting; and (11) breach of the implied covenant of good faith and fair dealing. In essence, plaintiffs allege that defendants breached oral and written contracts for construction work on defendants' residence. An answer to the TAC was filed on 11/20/18 along with a cross-complaint by defendant / cross-complainant Habib Ghorbani...

Excerpt: ...sues. There is a three-step process in reviewing a summary judgment motion. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 638 (“Hansra”).) The court first “ ‘identif[ies] the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citatio...

Excerpt: ...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 v. Golden Empire Transportation Transit District (...

Excerpt: ...ns, “As the Court of Appeal herein observed, the fee setting inquiry in California ordinarily begins with the ‘lodestar,' i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. ‘California courts have consistently held that a computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys' fee award.' [Citation.] The reasonable hourly ra...

Excerpt: ...ss-Complaint. Proposed Interveners “. . . seek leave to intervene in this matter so that there will be no question whether the Court has all the parties before it, and whether it can issue an order determining that it can make a ruling on arbitrability of claims.” (Motion; 3:7- 9.) Defendant's/Cross-Defendant's (Leona Horowitz) Non- Opposition (Non-Opposition), filed on 7-2-19, states, “. . . she does not oppose the Court granting them the ...

Excerpt: ...y, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only ...

Excerpt: ...e is GRANTED in part, DENIED without prejudice in part. As to Form Interrogatory Nos. 15.1, 50.1, 50.2, 50.3, and 50.5, the Motion is GRANTED.  Form Interrogatory No. 15.1: Defendant's response to Interrogatory No. 15.1 is in violation of Code of Civil Procedure section 2030.220 as it is not complete and straightforward. Defendant's Answer asserted 51 affirmative defenses; yet Defendant's response to this interrogatory fails to address each su...

Excerpt: ...tis (2011) 192 Cal.App.4 th 1474, 1479.) Thus, the court does not have the authority to determine Motion Nos. 1, 2, 3, 4, and 5 (discussed below) based on the defaults entered as to the Second Amended Cross- Complaint. The court notes, however, that Stoll Nussbaum & Polakov filed a Complaint against Eagan Avenatti, LLP, Michael Avenatti, Lisa Storie Avenatti, and Avenatti & Associates, a California corporation on 1-30-13 under Orange County Super...

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

Excerpt: ...o the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrato...

Excerpt: ...ed upon an evidentiary conclusion that service of the summons was bad and that this Court never properly acquired personal jurisdiction over the defendant. The absence of personal jurisdiction renders the default judgment void ab initio, so on what basis is there to permit plaintiff to still use a void judgment? The first question this Court has, which was not addressed in the papers, is what impact does this Court's 11/09/18 order setting aside ...

Excerpt: .... The Court concludes that an overriding interest is shown that would overcome the right of public access to the record at this time; the overriding interest supports sealing the record in the present circumstances; in the given circumstances, a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; the proposed sealing is narrowly tailored; and a less restrictive means exist to achieve the ove...

Excerpt: ...n 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 protect the person from unreasona...

Excerpt: ...alifornia with sufficient minimum contacts substantially related to this contract dispute. (See Pavlovich,supra, 29 Cal.4th at p. 269 [purposeful availment]; see also Goehring v. Superior Court (1998) 62 Cal.App.4th 894, 907 [contract factors]; accord Burger King Corp. v. Rudzewicz (1985) 471 U.S. 462, 477-482 [same].) Plaintiff showed defendant reached out to plaintiff in California to initiate the transaction, then sent a representative to Cali...

Excerpt: ... Khalil. On 3/13/19, defendants served their statutory designation of expert trial witnesses. Defendants did not designate any experts – medical or otherwise. Neither side designated any experts to opine upon the question of fault or forces involved in the accident itself. On 4/18/19, with trial less than two weeks away, plaintiff applied ex parte for permission to swap out one of his designated medical experts, Dr. Khalil, for another in the s...

Excerpt: ... Plaintiff is awarded sanctions of $1,000. Where there has been a response to RFPs that the propounding party finds inadequate, then the Code provides for a motion and order compelling production upon a showing of good cause, prior meeting and conferring, and the filing of a separate statement. Code Civ. Proc. § 2031.310(b)(1) and (2); CRC 3.1345; TRG, Cal. Prac. Guide, Civil Procedure before Trial §8:1494.1. A motion to compel further response...

Excerpt: ...d both such submissions. To compel arbitration, the moving party must prove by a preponderance of the evidence that a written agreement to arbitrate a controversy exists and that a party thereto refuses to arbitrate such controversy. (C.C.P. § 1281.2.) The provisions of the written agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (C.R.C. 3.1330.) RPs assert...

Excerpt: ...rough 12.7, 15.1, 16.1, 16.2, 16.7, 16.8 and 50.1. It is denied as to nos. 13.1, 13.2, and 50.2. Code of Civil Procedure section 2030.220 requires a party responding to interrogatories to answer in a manner as “complete and straightforward as the information reasonably available” permits. If the interrogatory cannot be answered completely, then it must be answered to the extent possible. Code Civ. Proc. § 2030.220(b). “If a timely motion t...

Excerpt: ... under the False Claims act does not change the analysis; Deny. ...

Excerpt: ...e. On June 24, 2019, the parties timely filed a joint separate statement as to those issues that remain. The four motions, brought by plaintiff Brock Chwialkowski against defendant The Vons Companies, Inc., are as follows: 1. Motion to Compel Further Responses to Requests for Production, Set One, 2. Motion to Compel Further Responses to Requests for Admission, Set One, 3. Motion to Compel Further Responses to Form Interrogatories – General, Set...