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: ...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: ... to defendant's contentions, plaintiffs adequately allege defendant repeatedly promised plaintiffs that she would rectify the damage caused by the water leakage and promised to pay for and send proper contractors, and that defendant repeatedly failed to do so. (See Complaint ¶¶ 10-32, 59-61.) Plaintiffs also adequately allege that defendant made these promises without the intent to perform. (See ibid.) The mere fact that defendant may have sent...

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: ...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: ...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: ... 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: ...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: .... 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: ...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: ...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: ...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: ...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: ...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: ...pon 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 unreasonable or oppressive demands..” Id. at subd.(a). Where a deposition is sought, Code of Civil Procedure §2025.420 permits the court, upon a showing of good cause, to issue a protective order protecting the deponent from “unwarranted annoyance...oppression ...

Excerpt: ...s statements” by failing “to include the total number of hours worked by Plaintiff and the other class members.” (See ¶90 of FAC). Plaintiff alleges that, as a result of the above, Plaintiff and the class have suffered damage. (See ¶91 and ¶93 of FAC). Additionally, earlier in the Complaint Plaintiff alleges Defendant had a practice of “failing to pay them for all regular and/or overtime wages earned…” (See ¶25 of FAC, incorporate...

Excerpt: ...e foreclosure process. Specifically, this cause of action alleges that the Defendant “authorized and/or initiated foreclosure proceedings without first properly notifying Plaintiffs” as required by Civ. Code § 2923.5 (SAC, ¶ 70), that it did not comply with the publishing and posting requirements and did not contact Plaintiffs to assess their financial situation (SAC, ¶ 71), did not advise Plaintiffs of the right to request a subsequent me...

Excerpt: ...s dispute the applicability of the equitable tolling doctrine. (Reply, at p. 4.) When the plaintiff is relying on a theory of fraudulent concealment, delayed accrual, equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, the plaintiff must specifically plead facts which, if proved, would support that theory. (Lantzy v Centex Homes (2003) 31 Cal.4th 363, 384–385; Mills v Forestex Co. (2003...

Excerpt: ...estate. See 8:14- bk-13999. On 02/22/16, Hon. Lewis sustained Kinum's demurrer to the original fraudulent conveyance complaint, observing that the underlying debt upon which the claim rested (default judgment against Frank) had been vacated. On 08/29/16, Hon. Lewis again sustained Kinum's demurrer to the operative pleading, observing that the underlying bankruptcy court judgment upon which the debt rested had been vacated. On 03/30/17, this Court...

Excerpt: ...d States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118. Willful misconduct is not a separate tort from negligence, but rather “‘“‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care' [citations].”'” [Citation.] In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and d...

Excerpt: ... not drawn or filed in conformity with the laws of this state or rules of this court because Defendant Jaques has not been sued in this matter in her capacity as trustee of the Trust, but solely in her individual capacity. However, the demurrer was not only filed on behalf of Defendant Jaques in her capacity as trustee, but also on her own individual behalf, as well as on behalf of Defendant O'Leary. As such, the Court cannot strike the entirety ...

Excerpt: ...COA are: (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300.) The conduct must be so extreme “as to exceed all bounds of that usually tolerated in a civil...

Excerpt: ... plaintiff may plead inconsistent claims. But when there is a cause of action for breach of contract, the plaintiff is precluded from also alleging a separate cause of action for quasi-contract that does not deny the existence of the contract. (See Klein v. Chevron U.S.A., Inc. (2012) 212 Cal.App.4th 1342, 1389-1390.) Fifth Cause of Action—Fraud There are no facts alleged that would support a claim that the defendant had no intention of perform...

Excerpt: ...actor in Dynamex Operation West v. Sup. Ct. (2018) 4 Cal.5th 903.” Plaintiff's Notice of Motion, Pg. 2. Defendant Vo has filed a Notice of Joinder of Plaintiff's Motion for Summary Adjudication. Rules of Court, Rule 3.1350(b) states, “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be sta...

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

Excerpt: ... are for negligence and vicarious liability and for negligence per se. Both are based on an injury that Plaintiff suffered on March 6, 2017, when he was a 15-year-old freshman at Mission Viejo High School. (Complaint, ¶ 4.) The complaint alleges that, on the day of the incident, Plaintiff was participating in a practice with the school's track and field club when, while in the process of retrieving a shot put he had thrown, he was struck in the ...

Excerpt: ...which the attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance o...

Excerpt: ...as commenced would be at odds with the right of a plaintiff to dismiss a case voluntarily and without prejudice set forth in [CCP] section 581, subdivision (b)(1) and subdivision (c), both of which provide that a plaintiff may voluntarily dismiss his or her complaint at any time before the ‘actual commencement of trial.'” (Id. at 1549.) The Court's 3/7/19 order does not prohibit Plaintiff from filing a PAGA claim. Instead, it notes that such ...

Excerpt: ...ther allegations from the Complaint is DENIED. The basis of the motion is evidence outside the confines of the Complaint and not otherwise subject to a request for judicial notice. Notice Notice for the three motions above shall be given by the plaintiff. Order to Show Cause re Sanctions No tentative. Defendant Dao, a self-represented attorney, should be prepared to explain why he has, for the second time, filed a motion months out when there wer...

Excerpt: ...tiff's Further Responses to Special Interrogatories, Set One, and Request for Monetary Sanctions in the Amount of $1655.00: 4. Motion by Defendant WKS Restaurant Corporation for an Order to Compel Plaintiff's Further Responses to Request for Production of Documents, Set One, and Request for Monetary Sanctions in the Amount of $1510.00: No. 1. Motion for Leave to Amend by Leonard H. Lundin: Cross-Defendant Leonard H. Lundin seeks leave of court to...

Excerpt: ...he employee's personnel file is off-limits. In California, discovery is purposefully broad. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and common sense – might (1) be admissible, (2) lead to admissible evidence, or (3) reasonably assist that party in evaluating the case, preparing for trial and/or facilitating resolution. Children's Hospital Central California v. Blue Cross of Cali...

Excerpt: ...tion under Section 2025.410, fails to appear for examination” or produce documents requested in the notice. Id. at subd.(a). The motion must state good cause for the production of any documents specified in the notice, and also must be accompanied by a meet and confer declaration or evidence that the moving party has contacted the deponent about any nonappearance. Id. at subd.(b). If a deponent believes a deposition notice is defective, it must...

Excerpt: ...co, Inc. (2003) 539 U.S. 52, 56-58.) Thus, the FAA applies. A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron ...

Excerpt: ...ifurcate on 5/16/19. At that time, the Court found that Defendants' proof of service was defective on its face and that Defendants had failed to present evidence of proper service. The Court continued the matter to 6/27/19 and gave the parties the option to file supplemental briefs. Plaintiff Secrest Construction of California did not file a supplemental Opposition, but Defendants filed a supplemental Reply on 6/13/19. B. Whether Bifurcation Woul...

Excerpt: ... the patient to be provided within 10 days; To the extent the patient is the employer, Pltf shall provide the dates of employment, job title, and nature of work for that patient without disclosing any personally identifiable information; Interrog Number 210.6: The Complaint does not seek lost earnings or future earnings; Deny as to this interrog; Deny sanctions to either party. ...

Excerpt: ...f action against Moving Deft – among other requirements, the Complaint must allege a valid cause of action against each Doe Deft; Allegations in each and every cause of action are specifically made against Deft Moucharafieh; Thus, the statute of limitations has run on every claim in the Complaint; No amendment can reasonably cure the running of the statute; §474 allows the substitution of names after the statute of limitations expires, not the...

Excerpt: ...e following: [¶] (a) A copy of the summons and complaint. [¶] (b) A notice of application and hearing. [¶] (c) A copy of the application and of any affidavit in support of the application.” “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).) “ . . . [A]n attachment may be issued only in an action on a claim or claims for mo...

Excerpt: ...tion for Right to Attach Order and Writ of Attachment as to The Steven Martin Rees and Ann Marie Rees Revocable Trust, filed on 5-1-19. The court's 5-1-19 Minute Order deemed the Ex Parte Applications as the moving papers. Code of Civil Procedure section 484.040, states, “No order or writ shall be issued under this article except after a hearing. At the times prescribed by subdivision (b) of Section 1005, the defendant shall be served with all ...

Excerpt: ...gment pursuant to the terms of the settlement. If requested, by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4 th 793, 809-811, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citati...

Excerpt: ...of James Kim is OVERRULED Defendants' Marshall B. Ketchum University, Edward Fisher, and Monica Trivedi's Motion for Summary Judgement is DENIED. Their Motion 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 stat...

Excerpt: ...atories is GRANTED, in part, as follows. Plaintiff Jeff Schwartz: As to Form Interrogatory No. 17.1, the Motion is DENIED. Plaintiff's response to RFA Nos. 40-44 are code compliant. Plaintiff did not refuse to apply the provided definition of the term “SHORT SALE.” (SeeAnalysis below re RFAs.) As to Special Interrogatory No. 46, the Motion is DENIED. This request is overly broad in scope and time frame. As to Special Interrogatory No. 48, the...

Excerpt: ...et of Requests for Production is DENIED. (1) Form Interrogatories: Plaintiffs seek Defendant Brennan's further responses to Form Interrogatory Nos. 15.1, 17.1, 50.1-50.6. Interrogatory No. 15.1: This interrogatory asked the factual basis, identification of any supporting documents, and witnesses for all asserted affirmative defenses.  Defendant's responses are inadequate, incomplete, and/or evasive; and his boilerplate objections appear to be ...

Excerpt: ...with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. [¶] (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. [¶] (3) An objection to the particular deman...

Excerpt: ...set forth in Chapter 5 . . . by means of a physical or mental examination of (1) a party to the action . . . in any action in which the mental or physical condition . . . of that party or person is in controversy in the action.” Code of Civil Procedure section 2032.310, states in relevant part, “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or ...

Excerpt: ...gligence cause of action [are] duty, breach of duty, proximate cause and damages. [Citations.]” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) “A plaintiff ‘must allege a causal connection between the negligence ... and the injury he suffered …. [W]here the pleaded facts of negligence and injury do not naturally give rise to an inference of causation the plaintiff must plead specif...

Excerpt: ... must weigh two interrelated factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. “The trial court's determination must be guided by a mix of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction. Of course, the scope o...

Excerpt: ...ed by the court's order. (See Harris v. Wachovia Mortg. (2010) 185 Cal.App.4th 1018, 1023.) This Court previously sustained without leave to amend Plaintiff's cause of action for breach of contract, and Plaintiff did not move for leave to add any additional cause of action prior to filing the First Amended Complaint (“FAC”). (See Code Civ. Proc., § 472.) Thus, the first cause of action is hereby stricken on the court's order. The general and...

Excerpt: ... requirements are similar to negligence but stricter. (See Snider v. Whitson (1960) 184 Cal.App.2d 211, 214-215.) The elements for a willful misconduct claim include the same elements of any negligence cause of action, i.e. duty, breach of duty, proximate cause, and damages (Id.), as well as additional elements: No claim of willful misconduct can be stated without alleging the specific act or omission that caused the injury. (Id. at p. 215). In a...

Excerpt: ..., § 831.4, the County is immune from liability, injuries caused by a physical defect of a recreational trail. Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 929. Trail Immunity: Gov. Code, § 831.4 provides that “A public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to ...

Excerpt: ...nce; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 402.) In its SAC, Plaintiff alleges that after receiving medical services in Mexico, third-party Howard Hamilton assigned to Plaintiff his right to payment under his health insurance policy with Defendant. However, the insurance plan prohibits assignments of the type pleaded. Specifical...

Excerpt: ...viously granted by this court 03/20/2019. Defendants do not object to the FAC on that ground and instead attack the three new causes of action pursuant to Code of Civil Procedure Section 430.10(e). The FAC pleads causes of action for cancellation of instruments, wrongful foreclosure, and slander of title. All three causes of action are based on the allegation that the 2007 Deed of Trust, the 2015 Assignment of Mortgage, and the subsequently recor...

Excerpt: ...rtainty is overruled. Plaintiff shall have 15 days leave to amend. Plaintiff's requests for judicial notice are granted. First Cause of Action for Negligent Supervision To establish a claim of negligent supervision, a plaintiff must prove the traditional elements of actionable negligence. (Thompson v. Sacramento City Unified School Dist., 107 Cal.App.4th 1352.) To prevail on an action in negligence, the plaintiff must show that the defendant owed...

Excerpt: ...Cause of Action (Battery) The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (...

Excerpt: ... statements of law” is without merit. Interrogatories may properly ask about a party's contentions of fact or law, and the facts, witnesses, or writings on which these contentions are based. CCP §2030.010(b); Burke v. Superior Court (1969) 71 Cal.2 nd276, 281. Moreover, plaintiff included the statements of law in her complaint, although their inclusion was not authorized by CCP §425.10(a)(1) and (2). Having alleged these statements of law, pl...

Excerpt: ...make a determination that Plaintiff was discriminated against by Defendant or that Plaintiff was fired on the basis of her disability or inability to perform the duties required of her. The MSA seeks adjudication as to the Business Necessity affirmative defense. “Where the plaintiff is the moving party and the defendant relies upon an affirmative defense, it is incumbent upon a moving party plaintiff . . . to show that there is no material fact...

Excerpt: ... identification of witnesses to “the incident.” But that term here is quite broad, as MP stayed at Hospital for 10 days. Hospital responded under C.C.P. § 2030.230, which allows records to be produced where a compilation would otherwise be required. Hospital has also shown that it produced roughly 1300 pages reflecting the entire record, offered to assist in identifying any personnel identified therein, and agreed to provide addresses and ph...

Excerpt: ...rom Tara Hill (owner of the premises where the interaction occurred). The third motion is another motion to quash by specially appearing defendant Albaro Parada, claiming he was not effectively served. This Court will take each in turn. Discovery Motions – Granted Defendant Chief Financial Services first seeks an order compelling a further response to Form Interrogatory number 4.1 regarding available insurance coverage for the incident. Co-defe...

Excerpt: ...on acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP §§ 2030.290(c) and 2031.300(c) (emphasis added).) The burden is on the losing party to prove justification or circumstances that establish sanctions would be unjust. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1441.) Plaintiff has failed to meet his burden. Plaintiff argues monetary sanctions are unju...

Excerpt: ...on acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP §§ 2030.290(c) and 2031.300(c) (emphasis added).) The burden is on the losing party to prove justification or circumstances that establish sanctions would be unjust. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1441.) Plaintiff has failed to meet his burden. Plaintiff argues monetary sanctions are unju...

Excerpt: ...ion alleged in the SAC are beyond the scope of the Court's order sustaining Brokers' demurrer to the FAC with leave to amend and (2) in any event, all claims are barred by the applicable statute of limitations. Brokers' request the Court to take judicial notice of the notice of ruling on their demurrer to the FACT and their meet and confer declaration filed in this action. This request is denied because it is unnecessary to ask the court to take ...

Excerpt: ... of efforts and inefficiency. Although plaintiff has cited cases authorizing this court to award a fee multiplier to the lodestar, this court will not do so, just like 40 of the 44 courts did not do so in the 44 cases cited by plaintiff in paragraphs 34-77 of his attorney's declaration. Plaintiff's counsel's contingency and payment delay risks appear to be taken into consideration in setting counsel's hourly rates in this contingency case, making...

Excerpt: ...vings Bank, N.A. Motion to Quash There is no tentative ruling on Plaintiff Richard Mateos's motion to quash subpoenas for various bank records. In a minute order dated May 3, 2019, the Court explained potential problems with the subpoenas and suggested how they should be limited. The Court also ordered the parties to meet and confer to attempt to agree on the timing and scope of the records to be produced pursuant to these subpoenas and to finali...

Excerpt: ...al, but plaintiff alleges in ¶38 that due to the taping of the sprinkler heads the fire sprinkler covers would not open as required during a fire, and the sprinklers would not deploy to put out the fire, creating a serious safety issue that put tenants and visitors at risk. Defendant argues plaintiff fails to allege that defendant had knowledge of the concealed defects, but plaintiff alleges in ¶97 that defendant knew of the material fire sprin...

Excerpt: ...allocated to the PAGA claim. Moreover, given other significant issues with respect to both the structure and explanation of the settlement (detailed below), the Court can see no reason for merely continuing the motion to allow for “corrections.” If the parties want this Court to approve the release of penalties for 146 employees, then they will need to rethink the settlement terms. The Motion is DENIED in view of the following significant iss...

Excerpt: ...'s evidentiary objections to defense counsel's billing records, among other things. As plaintiff has not had an opportunity to respond to attorney Hatch's supplemental declaration or additional exhibits, the hearing is continued for this purpose. Second, the hearing is continued for both parties to provide further briefing. Moving defendants cite Sections 6.01(a) and 6.01(b), Section 7.20, and Section 5.01(b)(2), of the alleged Asset Purchase Agr...

Excerpt: ...nted such a request. Thus, the court lacks subject matter jurisdiction to consider this motion. (See Sayta v. Chu (2017) 17 Cal.App.5th 960, 966- 968; see also APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 180-182 [court lacks jurisdiction to consider a motion for reconsideration after dismissal]; ROA Nos. 35-37, 108-110.) Even if the court had jurisdiction, the motion would be denied. Plaintiff previously brought a motion for entry ...

Excerpt: ...iled on or before July 26, 2019. 1. Per the May 30, 2019 declaration of Kevin Mahoney, the class now comprises 393 members. (Mahoney Decl. ¶ 27.) The executed settlement agreement, on the other hand, estimates the class at 290 members. (Settlement at 14.) Counsel previously identified, at preliminary approval, a class of 280-290 members. (Mahoney Decl. of 01/09/19 [ROA 87], ¶¶ 43, 57.) Please explain the approximately 35% increase in class siz...

Excerpt: ...etween the parties. The evidence shows UCMI owes the District a duty to defend as a matter of law. The duty to defend is not contingent upon a showing of negligence on the part of UCMI. Items 2 through 4 do not seek to establish a duty as a matter of law, but rather ask the court to make certain findings of fact. Unless the items completely dispose of a cause of action, that cannot be done. There is no statutory basis for an order summarily adjud...

Excerpt: ... owed to the aggrieved employees will be paid to the participating class members. PAGA claims are subject to a one- year statute of limitations while the class wage and hour claims are subject to a four-year statute of limitations. This means there may be class members who cannot be “aggrieved employees” as they were not employed within the proper time frame. Such employees are not entitled to payment of the LWDA penalties as the statute requ...

Excerpt: ...Retail North America, Inc. (9th Cir. 2015) 803 F.3d 425, 429 (holding that Iskanian governs PAGA claims even when the agreement is controlled by the FAA); Mandviwala v. Five Star Quality Care, Inc. (9th Cir. 2018) 723 F. App'x 415, 417-418 (same); and Whitworth v. SolarCity Corp. (N.D.Cal. Aug. 21, 2018) 2018 WL 3995937 (same). Defendant also argues that Plaintiff's PAGA claim must be compelled to arbitration because Plaintiff seeks, in part, unp...

Excerpt: ...eal Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 513.) A court may not, however, award costs in the judicial proceeding to confirm an arbitration award that should have been sought and awarded, if at all, in the arbitration. “ ‘Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and a...

Excerpt: ...th Lakes Land Acquisitions, LLC v. Town of Mammoth Lakes(2010) 191 Cal. App. 4th 435, 463. Plaintiff contends that all of these elements have been established by the request for admissions that were deemed admitted by the Court on 2/7/19. There is a valid contract between the parties for student loans and Defendant promised to repay all student loans. SS, 1- 2. Plaintiff performed pursuant to the contract by making student loans to Defendant in t...

Excerpt: ...ht to bring this action. But as indicated below, the Court will not take judicial notice of “Exhibit 3” to the Complaint: such an “exhibit” was not attached to what was filed with the Court. Even so, the parties agree as to the language of the assignment. A fair reading of the assignment from Downey Savings could be that while the plaintiff is not entitled to receive the percentage rents, it is entitled to one-third of the percentage rent...

Excerpt: ...Sue letter and are barred by the applicable statute of limitations. Those arguments have merit as the Second Amended Complaint is now pled. The plaintiff has attempted to resolve that issue by procuring an amended Right-to-Sue letter which he has now filed with the Court. (ROA 118.) Because there is a jurisdictional burden on the plaintiff to plead the timely filing of a sufficient complaint with the Department of Fair Employment and Housing, the...

Excerpt: ...ent inducement” and “concealment,” and seeks general as well as punitive damages. This is the heart of the Complaint. They allege the defendant manufacturer knew that: (a) the transmissions were defective; (b) these safety defects are not repairable; (c) the defects were not publicly known; and, (d) the defects in this vehicle were not disclosed but actively concealed from the plaintiffs at the time of the dealer sale and repair attempts. T...

Excerpt: ... how, when, where, to whom, and by what means the representations were tendered.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) “We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. The second is to permit a court to weed out meritless fraud claims on the basis of the ple...

Excerpt: ...d Complaint was to be filed within 10 days of the order. A “proposed” Fourth Amended Complaint had been “received” by the Court on March 6, 2019 (ROA 148); i.e., six days earlier, but that pleading was never filed, only received, and no subsequent amended complaint was filed with the Court in accordance with the Court's March 12 order. In the interests of justice, and because the parties appear to accept the amended complaint received Mar...

Excerpt: ...4,045 in attorney's fees and $787.58 in costs, for a total of $34,832.58, plus a 1.25 multiplier. The hourly rates claimed appear reasonable here, in light of the experience and expertise of counsel, the contingent nature of the claim, and the attendant delays in potential recovery. The number of hours devoted to the case for the services rendered also appear reasonable under the circumstances here. Jaguar argues that the hours billed are excessi...

Excerpt: ...discovery, professional courtesy generally warrants allowing one. In another context, the DCA has recently said: “The policy of the state is that the parties to a lawsuit ‘shall cooperate.' Period. Full stop.” (LaSalle v. Vogel 2019 ___ Cal. Rptr. 3d ___ (June 11, 2019, No. G055381) 2019 WL 2428668, at *1 (published, pending citation). The Court continued, “We conclude by reminding members of the Bar that their responsibilities as officer...

Excerpt: ...bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not mee...

Excerpt: ...rported to act in court, as a guardian ad litem (GAL) for his mother, even though the son was not formally appointed a GAL. Plaintiff alleges that the orders that issued in the case concerning payment of legal fees and spousal support, are void therefore. He is seeking a declaration that orders were void and to have the son pay for the alimony and legal fees that were ordered in the family court. Plaintiff is suing the son, Defendant Sridhar Redd...

Excerpt: ...n. In support of its motion to set aside the default, TRD makes the following arguments: (1) TRD was not properly served with the Complaint; (2) TRD lacked actual notice of the action; (3) relief should be granted under CCP § 473(b) based on TRD's mistake, inadvertence, surprise, or excusable neglect; and (4) Plaintiff's counsel violated California Attorney guidelines of Civility and Professionalism. (1) Service of the Complaint on TRD: TRD cont...

Excerpt: ...seeking. 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 matter was continued to this date to permit further briefing. The Court has now looked to the further briefing and issues the 2nd tentative. Pursuant to CCP §473.5, “when service of a summons has not resulted in actual notice to a party in time to defen...

Excerpt: ...2018-01019366. It has also reviewed the Declaration of Scott A. Brooks filed on June 10, 2019 (“Brooks Declaration”). Pursuant to Code Civ. Proc., § 404.1, the petition for coordination is GRANTED. All three actions have already been deemed complex by their respective courts. (Code Civ. Proc., § 404.) Further, coordination of the actions will promote the ends of justice. The actions have a substantial amount of overlap of factual and legal ...

Excerpt: ...n is simply a suit in equity seeking specific performance of that contract. Little v. Pullman (2013) 219 Cal.App.4 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 tr...

Excerpt: ...ble evidence ….” (Code Civ. Proc., § 2017.010.) “Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221.) Here, each request for production follows the same format: “ALL emails between email address [...

Excerpt: ...ted in a “red tag” of plaintiffs' apartment. Plaintiffs contend, among other things, they have been denied access to the personal property located in their apartment and have suffered both physical damages and emotional distress. The Second Amended Complaint consists of the following causes of action: 1. Breach of the implied warranty of habitability 2. Tortious breach of the warranty of habitability 3. Violations of Civil Code section 1940.2...

Excerpt: ...m Fund I Trust, Zieve, Brodnax & Steele, LLP, Wells Fargo Bank, N.A. s/b/m Wachovia Mortgage, FSB f/k/a World Savings Bank, FSB, and Wells Fargo Bank South Central, N.A. The complaint alleges eight causes of action: (1) violation of 12 CFR §1026.39; lender failure to provide proper mortgage transfer disclosures; (2) lender / servicer negligence; (3) accounting of loan amounts; (4) violation of CC §2923.5; (5) violation of CC §2923.7; (6) viola...

Excerpt: ...s to supply 10,000 mini-hookahs, but defendants only delivered approximately 6,000 units and misrepresented their intention to fulfill the contract. No trial date is set. Defendant demurs to all C/As of the complaint on the grounds of failure to state facts sufficient to constitute a C/A and uncertainty (CCP §430.10(e), (f)) Analysis: Moving Party's Request for Judicial Notice in support of Reply: With the Reply, MP submitted a request for judic...

Excerpt: ...rchitect/engineer and the design/build general contractor over improvements to the 91 freeway. Defendant Atkinson/Walsh Joint Venture retained Plaintiff to provide architectural/engineering services in connection with a bid by Defendant to provide general contracting services to the Riverside County Transportation Commission in connection with works of improvement on the 91 freeway. The agreement provided, among other things, that Defendant purch...

Excerpt: ...ngers, an injury under his right eye, multiple chipped teeth requiring reconstructive dental work, and a concussion. He went to an ER immediately after the incident and again a few days later. On 2/23/17, Plaintiff filed his complaint alleging two causes of action for battery and assault. On 4/26/17, Defendant filed his cross-complaint against Viscomi and SHR MLB LLC (the Montage Hotel), alleging four causes of action for: 1. Indemnification 2. A...

Excerpt: ...of gross revenue you made from Moneytips.com generated by a free credit reporting product offered on your website each month from June 2016 to the present; Code-compliant response to be provided within 10 days; #36: Interrog should be limited as follows: State the amount of net profit you made from Moneytips.com related to a free credit reporting product offered on your website for each month from June 2016, to the present; Code compliant respons...

Excerpt: ...f used a ride share service operated by Defendant Lyft on 7/31/18 in Huntington Beach to drive him to second location in the same city. Plaintiff was carrying a $7,500.00 cash deposit in a fabric deposit bag in his pocket. While Plaintiff was either entering or exiting the vehicle, the deposit bag fell out his pocket into the vehicle being driven by Defendant Smith. After exiting the vehicle, Plaintiff noticed the deposit bag was missing. He cont...

Excerpt: ...its complaint, and that defendants were entitled to costs. Moving Party contends as follows: Item 12 – equipment rental for exhibit presentation Defendants claim costs of $4,475.84. However, defendants have not shown the costs resulted in documents that were “reasonably helpful to aid the trier of fact” and should therefore be disallowed. Even if they were helpful to the trier of fact, the expense is excessive. Other The evidence doesn't su...

Excerpt: ...of the authority to grant cable television franchises from the Public Cable Television Authority resulted in the “termination” of the franchise within the meaning of the law or terms of the parties' JPA; It has not been shown that the Court has the authority to dissolve the JPA and PCTN and distribute its assets; Deny motion. ...

Excerpt: ...(McGhee) (collectively, the security defendants), alleging the following three causes of action: 1. Assault/battery, 2. Negligence, and 3. Negligent infliction of emotional distress. On April 2, 2019, plaintiff filed an amendment to complaint, identifying Doe 1 as Kaiser Foundation Health Plan, Inc. (Health Plan or KFHP), erroneously sued as “Kaiser Foundation Health Plans.” On May 8, 2019, plaintiff filed another two amendments to complaint,...

Excerpt: ...uests for Production is DENIED. (1) Form Interrogatories: Plaintiffs seek Defendant Brennan's further responses to Form Plaintiffs seek Defendant Brennan's further responses to Form Interrogatory Nos. 15.1, 17.1, 50.1-50.6. Interrogatory No. 15.1: This interrogatory asked the factual basis, identification of any supporting documents, and witnesses for all asserted affirmative defenses.  Defendant's responses are inadequate, incomplete, and/or ...

Excerpt: ...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 defendant, even if not exclusively, ...

Excerpt: ...The court OVERRULES Cross-Defendant's Objections filed on 6- 13-19. Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has me...

Excerpt: ..., Request for Admission (set 3), Form Interrogatories (Set 5), and Request for Production Set 8.” (Motion; 2:5-8.) Defendant requests a protective order as to these discovery requests pursuant to Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080. (Motion; 2:10- 13.) The parties have adequately met and conferred. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), and 2033.080, subd. (a); 3-15-19 Berman Decl., ¶¶ 3...