Excerpt: ... The allegations included within ¶7 are asserted on “information and belief.” Allegations made on “information and belief” are improper where a Complaint fails to allege “such information that lead[s] the [plaintiff] to believe that the allegations are true.” (Doe v. City of Los Angeles (2007) 42 Cal.4 th 531, 551, fn. 5; See also Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 792: “Plaintiff may allege on information and belief any...

Excerpt: ...ns should be denied and sanctions awarded to the Plaintiff. Based on all the moving papers, the court finds that Defendant's counsel did meet and confer sufficiently to permit these motions to go forward. The request for sanctions is denied. Plaintiff's objection to each motion and each accompanying separate statement based on untimeliness is overruled. As explained in Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 ...

Excerpt: ...5, 754). Per Robinson v. Grossman (1997) 57 Cal.App.4 th 634, a seller's agent does not owe “a duty to independently verify or disclaim the accuracy of the seller's representations…” (Id. at 643); however, “the sellers' agent is required…to act in good faith and not convey the seller's representations without a reasonable basis for believing them to be true.” (Id. [emphasis added]). Additionally, per Civil Code §1088, “[i]f an agen...

Excerpt: ...conditions.” Id. Here, Plaintiffs allegedly informally requested a second inspection of the subject property located at 2826 N. Dayna Street in Santa Ana, CA (the “Property”), but have refused or failed to provide a date for the inspection. As Defendant received a Notice to Abate Public Nuisance from the City of Santa Ana on 09/10/18, Defendant risks large fines by not remediating the issues with the Property while Plaintiffs fail to comple...

Excerpt: ...sts between himself and Beltran. Civ. Code § 1550. Plaintiff has also failed to allege any facts sufficient to show how, when, or why any such contract might have been breached. Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186. As such, the Demurrer is sustained as to the cause of action for Breach of Contract. Plaintiff has also failed to pled facts sufficient to show that the cause of action for Bad Faith applies to Beltran. The Bad Fait...

Excerpt: ...if such allegation is controverted, then plaintiff must establish, on the trial, the facts showing such performance. (CCP § 457). When a condition precedent imposed by the contract is an act to be performed by the plaintiff, the plaintiff may allege the performance in general terms. (4 Witkin, Cal. Proc. 5th Plead § 538 (2008).) Under these rules, it is not required that a plaintiff allege the specific facts showing his performance of the contr...

Excerpt: ...s request for judicial notice of Exhibits 1 and 2 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) As to the 1 st through 3 rd Causes of Action as shareholder derivative claims, the Court OVERRULES the demurrer. The Court finds that the SAC has adequately alleged demand futility in paragraph 20 ...

Excerpt: ...ng same must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would dimi...

Excerpt: ...provides: "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." (Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1339; Stubblefield Construction Co. v. City of San Bernardino (19...

Excerpt: ...v. Superior Court (2006) 139 Cal.App.4th 528, 539, FN 7.) Regarding the AT&T subpoena, the subpoena is not limited to calls/texts to or from plaintiff, which could be relevant to her harassment and wage/hour claims. Responding party also contends that she has the names and phone numbers of at least 30 escorts whom she allegedly personally drove and delivered to moving party's home (Opp at 5:4-7; Guevara Decl., Para. 19); however, the subpoena is ...

Excerpt: ...re sought only on his behalf. Applicable Law Allowable costs must be reasonable and necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5, subd. (c)(2); see Moss v. Underwriters' Report (1938) 12 Cal.2d 266, 274; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [whether cost item was reasonable and necessary presents question of fact for trial co...

Excerpt: ...indication that the parties, including Plaintiff, expressly agreed to a settlement. Defendant argues that pursuant to principles of contract law, the Court should enforce the settlement. “A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) However, Defendant's authorities do not assist him in th...

Excerpt: ...h 32, 44-45.) As such, until there is an actual order staying the litigation, this Court may exercise its continuing power to designate this matter as complex. (CRC Rule 3.403(b).) Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790 (“Brock”) and Twentieth Century Fox Film Corp. v. Superior Court(2000) 79 Cal.App.4th 188 (“Twentieth Century”) do not require a different result. Brock explains that a party must take action to co...

Excerpt: ... on February 25, 2019 or any other document that may be recorded in furtherance of foreclosing on the Property at issue until judgment or dismissal of this case. Code of Civil Procedure section 526, subdivision (a)(3) provides that an injunction may be granted: “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the right...

Excerpt: ...settlement that includes $7,500 being paid to each of seven allegedly aggrieved employees who are not named plaintiffs in this action, like the other six named plaintiffs who have asserted individual claims for relief. Counsel's assertion that those seven people filed arbitration actions against defendant is insufficient to bring those claims into this case without a pleading having been filed on their behalf. Since a PAGA settlement involves one...

Excerpt: .... As the District has prevailed on the issue of duty to defend, the court cannot grant adjudication in favor of PJHM on these claims. The third cause of action for express contractual indemnity does not seek a declaration regarding PJHM's duty to defend. However, there are triable issues of fact with regard to whether the District waived its right to sue PJHM and as to whether PJHM has a duty to indemnify the District. With regard to the issue of...

Excerpt: ...icy, is not a proper subject for summary adjudication under CCP §437c(f)(1). Defendant Casa Apartments LP's Objections to Declaration of Robert Closson are sustained. As a result, there is no foundation for the relevant insurance policy and application. While there is testimony within the deposition of defendant Sohi confirming that a document marked as Exhibit 15 is the Application for the 2014-2015 policy he signed, Exhibit 15 is not provided ...

Excerpt: ...t identifies an allegedly unfair business practice and potentially seeks restitution of the premium plaintiffs paid, they state a cause of action. Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal. App. 4th 667, 676. Defendant's arguments that go to the merits of plaintiffs' case have no relevance to this kind of motion. Defendant USAA Casualty Ins. Co.'s unopposed Motion to Bifurcate Punitive Damages and Exclude USAA CIC's Financial Condition is g...

Excerpt: ...ded settlement agreement. Counsel also must provide a red-lined version of any revised papers, including the proposed letter to the aggrieved employees. Although the settlement agreement provides in ¶33 that uncashed checks will be deposited in the California Unclaimed Property Fund in the name of the employees, the cover letter to be sent with the aggrieved employees' PAGA checks provides that any uncashed checks will go to the California Depar...

Excerpt: ...rsuant to CRC Rule 1.201. The Court hereby orders Plaintiff's counsel to re-file redacted versions of the Petition pursuant to the above rule within five-days of the hearing. As for the arguments, “A civil cause of action . . . generally accrues at the time of the [injury].” [Citation] “That date may be postponed under the delayed discovery doctrine. [Citation.] Under this doctrine, a cause of action does not accrue until the plaintiff disc...

Excerpt: ...gence): The Sanchez and Benavides decisions do not stand for the broad proposition asserted by defendant that insurers cannot be sued for negligence related to improper claim handling. Sanchez held that an adjuster hired by an insurer owes no duty of care to the insured. Benavidesheld that plaintiff could not recover for negligent claims handling because there was no coverage under the terms of the policy. Further, the element of duty is adequate...

Excerpt: ...Hearing is set for January 10, 2020 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. Defendant has shown that there exists a valid written agreement to arbitrate the claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. The FAA applies since defendant is engaged in interstate commerce. P...

Excerpt: ...eeds, the vesting date was 11/13/1 4 Plaintiff knew that the face value of the policy of $4 mi l Complaint). This amount was fixed. It was only reduce d the subsequent settlements. Attorney Fees and Costs: In an effort to mitigate da m $1,520,874.27 in legal fees and costs in the Transame r BVI Action. In the SAC filed on 5/30/17, Plaintiff requested “In e and costs arising out of the New Jersey Action [and] In and costs arising out of the BVI ...

Excerpt: ...0.) Furthermore, Defendants have not shown on the merits that joinder should be compelled. A party is indispensable where the plaintiff seeks a type of affirmative relief that, if granted would affect the interest of a third person not joined. (Sierra Club, Inc. v. California Coastal Comm. (1979) 95 Cal.App.3d 495, 501; Code Civ. Proc., § 398, subd. (a).) In other words, Plaintiff is required to join as parties to the action any person whose int...

Excerpt: ...erest in the property or controversy which is the subject of the cause [of action] brought against him.” (Code Civ. Proc., § 428.10 subd. (b).) Defendants may cross-complain against any person from whom they seek equitable indemnity. Defendants need only allege that the harm for which they are being sued is attributable, at least in part, to the cross-defendant. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 607; Paragon Re...

Excerpt: ...he time of the alleged sexual abuse, RCOC knew, had reason to know, or was otherwise on notice of defendant Jonathan Ryan McKay's (McKay) unlawful sexual conduct, and failed to take reasonable steps to avoid acts of further unlawful sexual conduct by McKay. (See FAC ¶¶ 39, 41-44, 47, 76, 77, 81.) RCOC has not properly addressed these allegations. RCOC has presented no evidence showing that it did not know of and was not on notice of the alleged...

Excerpt: ...ton. Day argues the ruling determines Day was not negligent in its work with regard to the project. Day also contends that because it is not liable to plaintiff, it is not liable to District. Day is incorrect with regard to both points. Under the “completed and accepted” doctrine, once a contractor or subcontractor has completed work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condit...

Excerpt: ...ters stated within documents. This action is ordered stayed pending completion of the arbitration. The Status Conference set for today is ordered off calendar. A Post-Arbitration Review Hearing is set for December 6, 2019 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. Defendants have shown that there exists a valid agreement to arbitrat...

Excerpt: ..., or tangible thing described in the deposition notice” if, “after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically ...

Excerpt: ...l.App.4th 1 the court determined that Plaintiffs Mobile Authentication Corporation (“MAC”) an (“Palisades”) lacked capacity to maintain the instant action and sustained the De m Inc. and Miguel Medina. (See 4/12/19 Minute Order.) On May 13, 2019, Plaintiffs filed their Fourth Amended Complaint (“4AC”). Despit the 4AC, there is no evidence demonstrating that Plaintiffs have complied with C a 2203 by paying fees, penalties and taxes, ma...

Excerpt: ... for production No. 19 as follows (where underlined) to limit it in scope to vehicles of the same year, make, and model as the subject vehicle: All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE, including but not limited to...

Excerpt: ...a Ion and Ra Global Resources, fact are substantially different in that the cases involved different parties and a d i 11 months apart. Also, there was substantial delay in bringing this motion. For a denied. Case Management / Trial Setting Conference and OSC Re Dismissal of Un There being no submission re good cause on the lack of service on Defendant Mi h cause otherwise available, Defendant Mihaela Ion is dismissed without prejudice. A Jury Tr...

Excerpt: ...“In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: The validity of service was the subject of litigation by the parties.” Here, plaintiffs purported to serve defendant Nguyen with the Summons and First Amended Complaint by substituted service on April 28, 2018. Defendant failed to respond, and plaintiffs had his default enter...

Excerpt: ... by the party against whom the costs are allowed.” The ordering of a copy of the transcript of Avrit's deposition was reasonable and n required to photocopy the original deposition for his expert. The statute specially videotaping witness's depositions. Item No. 4e: SDT Medical Records: Plaintiff ordered copies of the records that practice for Plaintiff to obtain the records that Defendant secured. Item No. 5: Costs of Service of Process: Altho...

Excerpt: ...Amendment rights.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) The motion may be used to attack portions of a cause of action, even if the motion does not defeat the entire purported cause of action. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) However, if the allegations are “merely incidental” or “collateral” to the claim, in the first instance, i.e., “they merely provide context, without supp...

Excerpt: ...aration can rely on information and belief only upon a proper showing of the reliability of the information. The application must show the following elements:  right to possession, i.e., plaintiff must show the evidence forming the basis of a claim for possession; if based on a written document, the document should be attached (Code Civ. Proc., § 512.010, subd. (b)(1))  defendant's possession, i.e., how it came into possession of the prope...

Excerpt: ...gal or equ property' become the property of the bankruptcy estate and will be distributed to v. Jacoway (2005) 544 U.S. 320, 325; see also Cloud v. Northrop Grumman Cor p 1001.) This means “after a person files for bankruptcy protection, any causes of that person becomes the property of the bankrupt estate.” (Cloud, supra, at p. 1 “[A] Chapter 7 debtor may not prosecute on his or her own a cause of action bel o unless the claim has been aba...

Excerpt: ...ear to be taken into consideration in setting counsel's hourly rates in this contingency case, making it improper for this court to use a multiplier based on those same factors. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal. App. 4th 785, 822. In addition, defendant made a 998 offer for the full purchase price of the vehicle only five days after plaintiff filed this case. For plaintiff to confidently refuse the offer s...

Excerpt: ... add up, and because plaintiffs failed to provide the court with an updated figure for the amount of payroll taxes to be paid from the settlement funds, the court cannot figure this out for itself. Plaintiffs request attorneys' fees of $98,418.26 based on that number being 1/3 of the settlement amount minus the employer's share of payroll taxes to be paid from the settlement funds. Since 1/3 of $300,000 is $100,000, the difference of $1,581.74 su...

Excerpt: ...October 24, 2018 Declaration (ROA 93), Attorney Scott Leviant stated the size was approximately 2700 at the preliminary approval stage. Additionally, Counsel previously represented that the average individual payment to be $925. However, despite the reduction in class size, the average payment is now represented to be lower, at $723.24. Please explain how a reduction in class size results in a reduction in the average payment as opposed to larger...

Excerpt: ...d is immediately enforceable through execution. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.) The Newland court stated: “Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws. [Citation.] These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may o...

Excerpt: ...ice was not provided pursuant to Code of Civil Procedure section 1005, subdivision (b). “Generally, leave to amend must be liberally granted [citation], provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.) If, however, the party seeking the amendment has been dilato...

Excerpt: ...SAR”) and/or proposed Class Notice is submitted, a redline version showing all changes, deletions and additions shall be submitted as well. As to the Settlement: 1. The SAR provides for a class of 1,206 persons (SAR § 1.03), while the subsequent declaration of George Hurley states the class, after the discovery of additional persons who should be excluded, consists of 1,174 persons. (Hurley Decl. ¶ 10.) The class sizes differ by 32, but the H...

Excerpt: ...dentified attorneys in moving exhibit A, whose rate the Court is reducing to $300 per hour (- 3,600). Added to this, is 14 hours for reasonable work for this fee proceeding (14 x 425 = + 5,950) and finally, 25 hrs. are added for reasonable paralegal time at the reasonable rate of $125/hrs. to cover the range of work that is described in moving exhibit A (25 x 125 = +3,125). Preliminary Matters The papers indicate that case has settled. Plaintiff ...

Excerpt: ...ched to a foundation, the mobile home or manufactured home remains personal property and any security interest in such property is foreclosed pursuant to the California Commercial Code, as modified by the purchase money security interest principles applicable to mobile homes and manufactured homes. SeeCal. Health & Safety Code §§ 18075, 18075.6 & 18551(a). Defendant also argues that Plaintiff must first sell the mobile home, perfect title, serv...

Excerpt: ...verred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint'” subject to demurrer) (citation omitted). Conclusory allegations of defenses that do not apply to a plaintiff's claim are also subject to demurrer. See id. (conclusory allegation that plaintiff's claim barred by laches, where that equitable defense did not apply to plaintiff's claim, subject to demurrer); see also Quan...

Excerpt: ...tinued the hearing as to the remaining causes of action (second through seventh) to allow for supplemental briefing. The Court has reviewed the supplemental briefs submitted by the parties and SUSTAINS the demurrer as to the second, third, fourth, fifth, sixth, and seventh causes of action. These causes of action challenge the facial constitutionality of PAGA under the state and federal constitutions. “A facial challenge to the constitutional v...

Excerpt: ...ment agreement', to avoid waste of limited Court 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. Why is “SCP Distributors, LLC” included in the definition of “Aggrieved Employees.” 2. Plaintiff has not provided any val...

Excerpt: ...g evidence that Defendant's employee(s) acted with recklessness or malice. The jury returned a verdict for Plaintiff Underwood on her negligence cause of action and for Plaintiff Swalve on her wrongful death cause of action. The jury awarded Plaintiff Underwood $600,000 on her elder abuse claim and $49,308.73 on her negligence claim. The jury awarded Plaintiff Swalve $750,000 on her wrongful death claim. The elder abuse and wrongful death awards ...

Excerpt: ...ehensive discussion is still warranted. The jury found in Cannivet's favor on his cross-complaint for breach of contract and quantum meruit, based on his proof of a joint venture with Palo. These findings are challenged herein. It should be noted since the time of the jury verdict on Cannivet's cross-complaint, this Court ruled against Cannivet on his various remaining equitable claims, as follows:  On Cannivet's cause of action for promissory...

Excerpt: ...2024.050(a), on motion of any party, the Court “may 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.” Further, in exercising its discretion to grant or deny such a request, the Court should consider: (1) The necessity and the reasons for the discovery; (2) The diligence of the party seeking the discovery�...

Excerpt: ...e. Plaintiffs Frank Tansley and Valerie Tansley own a residence located at 24965 Danamaple, Dana Point, CA 92629. Plaintiffs purchased the property in December of 2016. A pre-closing inspection revealed that the upstairs and downstairs floors were sloped and uneven. Plaintiffs retained Defendants in November of 2016 to conduct a geological inspection report. The report was issued on 11/19/16. It concluded that the original slab had not been level...

Excerpt: ...t it contracted with defendant to remodel defendant's shopping center in Tustin and that defendant breached the contract by failing to pay for all services and materials, including numerous changes requested by defendant. An answer to the TAC was filed on 10/10/18. On 4/23/19, plaintiff filed a Doe Amendment, naming Tustin Center, LLC as Doe 11. A jury trial is set on 10/7/19. Plaintiff seeks an order compelling defendant Famouri's Associates to ...

Excerpt: ...ortly after taking possession of the vehicle, Felix experienced the defects listed below. This substantially impaired the use, safety and/or value of the BMW. Defects included:  defective transmission,  defective electrical system,  “any additional complaints made by Plaintiff, whether or not they are contained in the records or any repair orders. [Complaint, ¶10] These defects violated the express written warranties issued by BMW, as...

Excerpt: ...w: On February 5, 2018, Brock Chwialkowski commenced this action against The Vons Companies, Inc., Andrew Barker, and Teresa Benson, alleging the following six causes 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, Governmen...

Excerpt: ...Ret.)) dismissed this case on November 2, 2017. If requested by the parties, a trial court may retain jurisdiction over the parties to enforce a settlement until performance in full of the terms of the settlement. Cal. Civ. Proc. Code § 664.6. “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” Mesa RHF Partners, L.P. v....

Excerpt: ...tion of $900.00 in monetary sanctions against Plaintiff Joseph G. Custer. The case is set for trial on 06/24/19. Moving Parties contend as follows: The subpoenas are defective because they were issued on 5/6/19, with a production date for 5/22/19. However, Defendants were not notified until almost 6:00 pm on 5/17/19, in violation of CCP §2025.270(a). Moreover, because the records subpoenas seek Defendants'' consumer and employee records, Plainti...

Excerpt: ...d the Terms By Confirming Receipt of Equipment That Was Not Received and Failing to Make Payments Thereunder; (4) Plaintiff Was Damaged; And (5) The Contract Was Not Cancelled. Issue No. 2: The Twelfth Cause of Action (Breach of the July 14, 2017 Finance Agreement) Against Vision One, Because There Is No Genuine Issue That: (1) Vision One Ratified Terms of the Contract And/Or is Estopped; (2) The Contract Terms Required Plaintiff to Finance Equip...

Excerpt: ...Plaintiff did not oppose the motion substantively. Instead, plaintiff contends that the motion was not properly served or timely noticed – requiring a continuance of the hearing. The pending motion was filed on 05/03/19, but not served upon plaintiff until 05/15/19. The papers were served via regular US Mail. Minimum statutory notice for a motion is 16 court days. CCP §1005(b). When service is made by regular US mail, 5 additional calendar day...

Excerpt: .... Superior Court (1992) 2 Cal.4th 1064, 1971-72, there is no recognizable independent claim for NIED. In Burgess the court stated that: “We have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. [¶] Whether a defendant owes a duty of care is a question of law. Its existenc...

Excerpt: ... entitled to recover costs as a matter of right. The allowed costs are enumerated in CCP § 1033.5(a) and discretionary items are also permitted under § 1033.5(c). Defendant's verified memorandum of costs is prima facie evidence that the costs were proper and necessarily incurred. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.) There is no requirement for the Defendant...

Excerpt: ...eferred the matter to arbitration. All court proceedings were stayed pending the arbitration award. On May 3, 2019, the plaintiff filed a motion to vacate and set aside the stipulation and order on the ground plaintiff's counsel mistakenly, inadvertently, and excusably believed the defendant would pay the arbitration fees pursuant to Armendariz. (Code Civ. Proc., § 473.) Counsel says he first became aware that JAMS would require his client to pa...

Excerpt: ...th 558, 565. The petitioner 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, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony r...

Excerpt: ...ed her Complaint for damages on July 12, 2018 alleging sexual harassment, retaliation, failure to take all reasonable steps to prevent discrimination and harassment, negligent supervision, intentional infliction of emotional distress, quid pro quo sexual harassment, and breach of the covenant of good faith and fair dealing. The plaintiff alleges that the defendant told her that his wife was no longer having sexual relations with him. Authorities:...

Excerpt: ...her than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. As to the release in Section 7.1, please clarify the meaning of the phrase “alleged in the Action” and how it differs from the phrase “alleged in the operative complaint.” Also clarify whether class members are releasing any claims that are unrelated to or do not arise from the allegations in the operative complaint. In s...

Excerpt: ...:  Specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and  Include with the moving papers:  a copy of the proposed amended pleading; and  a declaration specifying: 1. the effect of the amendment(s); 2. why the amendment is necessary and proper; 3. when the facts giving rise to the amended allegations were discovered; and 4. the reasons why the request was not made earl...

Excerpt: ...pose to add to their 2AXC. In his declaration at paragraph 10, Cross- Complainants' counsel Douglas Wade states that Cross- Complainants propose to add a claim for Negligent Misrepresentation. But in their motion at page 7, lines 17-20, Cross-Complainants state that they have added two causes of action for Intentional Interference with Prospective Economic Relations and Misappropriation of Trade Secrets. Accordingly, it is uncertain as to what Cr...

Excerpt: ...sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. (Lopez, supra, at p. 604.) Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. (Ibid.) However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating san...

Excerpt: ...obtain leave of court. [¶] (b) A motion for examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any of the person or persons who will perform the examination. . . . .” Code of Civil Procedure section 2032.320, subdivision (a), provides, “The court shall grant a motion for physical or mental examination under Section 2032.310 o...

Excerpt: ...he obligation to stay the state court action. [Citations.]” “ ‘In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject...

Excerpt: ...s not timely. Plaintiffs provide no information as to when the responses/verifications were served, no calculations as to dates, and no legal authority. This motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically; see Code Civ. Proc., §§ 1010.6(a)(4)). Otherwise, the demanding party waives the right to compel any further response to the section 2031.010 ...

Excerpt: ...exceptions to the general rule that one must be a party to invoke an arbitration agreement: “there are six theories by which a nonsignatory may be bound to arbitrate: (a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.” (Young Seok Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513.) “‘By relying on contract terms in a claim against a nonsignatory ...

Excerpt: ... such, Defendants have no evidence of an “agreement to arbitrate. Accordingly, the Motion is DENIED, without prejudice. Defendants will need to re-file the Motion and properly lay the foundation and establish that Plaintiff signed the Retainer Agreement. The Court SUSTAINS Plaintiff's objection to paragraph 5 of Mr. Falcioni's declaration in support of the Motion. Based on same, Defendants have no evidence establishing that a valid agreement to...

Excerpt: ...37c, subd. (q).) The court does not consider the Declaration of Jeffrey M. David in Support of Reply to Plaintiff's Opposition to Motion for Summary Judgment. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) It appears that Defendant/Cross-Complainant Frank Walter Peters used his “Responses to Defendant, Lab Expresses Separate Statement of Undisputed Facts,” to filed on 5-21-19, as objections. The court OVERRULES these objections bec...

Excerpt: ... substituted into this case on behalf of Plaintiff; and after his review or the currently-operative First Amended Complaint (“FAC”), he determined certain language in the existing pleading needed to be cleaned up, certain language pertaining to the interrelationship of the Defendants needed to be added and/or clarified, and the evidence in this case gave rise to valid causes of action for Unfair Competition under California Business and Profe...

Excerpt: ...en by submitting the factually devoid discovery responses of Defendant Douglas Fir Holdings, LLC dba Huntington Valley Healthcare Center, there is reason to deny without prejudice to allow Defendant to obtain the necessary evidence to create a triable issue of material fact. As Plaintiff's motion establishes, within days of Defendants Answering the Complaint, Plaintiff served RFAs. Defendant responded on January 4, 2019 and by February 27, 2019 (...

Excerpt: ...“. . . [A] court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face...

Excerpt: ...e aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” Fountain Valley Chateau Blanc Homeowner's Association v. Department of Veteran Affairs (Fountain Valley) (1998) 67 Cal.App.4 th 743, 750-751, states, “At the outset we must confront a serious anomaly in California's procedural law regarding attacks on decisions made by juries...

Excerpt: ... or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of ...

Excerpt: ...scadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Defendant demurs to the second cause of action in Plaintiff's Complaint (filed on 8-1-18) pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). Defendant contends, “. . . Plaintiff's Complaint is replete with conclusory allegations, unsupported by necessary facts and therefore fails to meet the heightened pleading requirements for a ...

Excerpt: ...xpressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Ca...

Excerpt: ...bbins (2010) 182 Cal.App.4 th 204, 228. The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. CRC 3.1700(a)(1). If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facieevidence of their propriety. The burden then rests with the party seeking to tax c...

Excerpt: ...e Court in the Minute Order of 12/10/2018, granting leave to amend (see id., pp. 1 and 4-5). The current pleading will be deemed stricken, once a corrected pleading is on file. (CCP § 436.) The Court finds that the current pleading is not in conformity with the Court's previous order. Plaintiff was directed to attach all exhibits to the new pleading which has not happened. Also, pursuant to CRC 3.1110(f), electronic exhibits should include elect...

Excerpt: ...fied under modern discovery procedures.” (Ibid.) 1st cause of action, elder abuse The complaint states facts sufficient to constitute this cause of action. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396 [elements].) It sufficiently alleges defendant's responsibility for meeting the elder's basic needs (Compl. ¶¶ 13-14 & 20); defendant's knowledge of conditions that made the elder unable to provide for basic nee...

Excerpt: ...e Court in the Minute Order of 12/10/2018, granting leave to amend (see id., pp. 1 and 4-5). The current pleading will be deemed stricken, once a corrected pleading is on file. (CCP § 436.) The Court finds that the current pleading is not in conformity with the Court's previous order. Plaintiff was directed to attach all exhibits to the new pleading which has not happened. Also, pursuant to CRC 3.1110(f), electronic exhibits should include elect...

Excerpt: ...Memorandum of Costs seeking $ 66,218.74 in costs. See, Memo of Costs. If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper, unreasonable or unnecessary. Benach v. County of Los Angeles (2007) 149 Ca...

Excerpt: ...o. (2012) 207 Cal.App.4th 124, 130–132.) There must also be a causal relationship to the third party conduct that injured the plaintiff, and a feature of the public property that “increased or intensified” the danger from that third party conduct. (Id.) Liability may not be based on the mere failure to provide a warning sign or traffic signal. (Gov. Code §§ 830.4, 830.8; Mixon, supra, 207 Cal.App.4th at 136; Cerna v. City of Oakland (2008...

Excerpt: ... applicable statute of limitations. Section 338(d) applies to “[a]n action for relief on the ground of fraud or mistake.” (See also Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 348 [applying section 338(d) to an unjust enrichment claim based on mistake].) Section 343 provides a four-year statute of limitations on all claims not otherwise provided for in the relevant code sections (Code Civ. Proc., §§ 335 et seq.). Here,...

Excerpt: ... “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. “A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language' (Code Civ. Proc., § 425.10, subd. (a)(1)) ...

Excerpt: ... US District Federal Court is GRANTED. Authorities: The Lodestar method, which entails multiplying a reasonable hourly rate by the number of hours the prevailing party reasonably expended on the litigation, is generally used to calculate reasonable attorneys fees. 569 East County Blvd, LLC v. Backcountry (2016) 6 Cal.App.5th 426, 432. The party requesting fees bears the burden of establishing that the requested rates comport with those prevailing...

Excerpt: ...cts and that it is therefore entitled to an award of attorneys' fees in the amount of $ 227,840 and for expert witness fees in the amount of $28,000. But that argument fails, as CCSI is the sole prevailing party on the integrated contracts at issue here. Salsbury argues that under Civil Code §1717, the three JOST contracts should be treated separately, and that it won on two of them and so should be able to recover its fees re same, citing Arntz...

Excerpt: ...be granted. (See Alcal Roofing & Insulation v. Sup. Court (1992) 8 Cal.App.4th 1121, 1127 [in contested case, a “party may not both seek confirmation of a settlement agreement and withhold it from nonsettling defendants on grounds of confidentiality.”], and J. Allen Radford Co. v. Sup. Court(1989) 216 Cal.App.3d 1418, 1423–1424 [while parties were free to maintain confidentiality of sliding scale recovery agreement, they could not claim a p...

Excerpt: ...of limitations will not lie where the action may be, but is not necessarily, barred. It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4 th 32, 42; May v. City of Milpitas (2013) 217 Cal.App.4 th 1307, 1324. Plaintiff readily concedes that her complaint was filed outside the applicable two-...

Excerpt: ...edure section § 2025.450. That section, however, relates to a party deponent. “The code applies by its language only to current officers, directors, managing agents, or employees. Persons formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition unless subpoenaed.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398 (internal quotation marks and citations omitted).) Here, it is un...

Excerpt: ...d December 2014 and December 2015. Defendant may redact any information that deals exclusively with peer review of the physician's medical performance and suggestions for improvement as to medical care. While defendant's supplemental privilege log filed with the parties' Joint Statement fails to comply with the court's order, it is apparently sufficient for the parties' purposes. Yet the log still fails to establish that the performance monitors ...

Excerpt: ...ubject to judicial review as a general rule. (Moncharsh v Heily & Blase (1992) 3 Cal.4th 1, 6, 10–11.) More specifically, courts may not review the validity of an arbitrator's reasoning or the sufficiency of the evidence supporting the arbitrator's award. (Id. at 11.) Judicial review of an arbitration award is limited exclusively to the statutory grounds for vacating or correcting the award. (Id. at 27– 28.) Plaintiffs contend that the arbitr...

Excerpt: ...ns. The court will consider this issue at a later time. Motion No. 2: Individual Defendants' Motion to Strike is DENIED without prejudice. CRC Rule 3.1322 (a) provides that “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” This Motion...

Excerpt: ...ly been declared vexatious litigants by the U.S. Bankruptcy Court, the U.S. 9 th Cir. Court of Appeals, and the U.S.D.C. for Central Dist. of California. Plaintiff more than meet the minimum for being declared vexatious litigants pursuant to CCP §§ 391(a)(1), (2), and (4). Plaintiff Yang shall be deemed a vexatious litigant pursuant to this motion. Although Plaintiff Sui was already determined to be a vexatious litigant in OCSC Case No. 30-2012...

Excerpt: ...ed or until such earlier time as the court deems appropriate. Heritage Provider Network, Inc. v. Superior Court (2008) 158 Cal.App.4th 1146, 1152. However, during the stay, the court retains vestigial powers over the matters submitted to arbitration. Finley v. Saturn of Roseville (2004) 117 Cal.App.4th 1253, 1258. The court may refuse to enforce a valid arbitration agreement if it determines that the party asserting the right to arbitrate has wai...

Excerpt: ...at the party will comply with the particular demand, a representation that the party lacks the ability to comply, and/or an objection to the particular demand. Plaintiff's statements of compliance do not state she “will” comply, but given that the production has already taken place and Defendant did not move on this deviation from Section 2031.220, this court will not compel compliance in that respect. Plaintiff's previous discovery responses...