Excerpt: ...otice of Exhibits 5 and 6. Code of Civil Procedure section 438, subdivision (c)(1)(B) states, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint. [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Code of Civil Procedure section 438, subdivision (d)...

Excerpt: ...omplaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4 th 1228, 1238, pr...

Excerpt: ...s no collusion, fraud, tortious conduct or effect to injure the non-settling defendants; that Defendant BONILLA will pay $29k of the $30k GEICO auto insurance policy limits to GERMAN PLAINTIFFS in exchange or settlement of all claims; and that Defendant BONILLA will pay $1k to the ESCAMILLA PLAINTIFFS in exchange for a release of all claims. (See Hodge Decl., ¶¶ 5 and 6.) Defendant BONILLA also presented evidence that he has no appreciable asse...

Excerpt: ...y associated with the physical injuries claimed,” and that he “will not present expert testimony regarding the usual mental and emotional distress at trial in support of his claim for damages.” (Carrillo Decl. ¶ 11, Exh. J [Exh. 2 attached thereto].) Moving Parties have not demonstrated exceptional circumstances to persuade the Court to grant the motion despite the stipulation. Further, Moving Parties do not sufficiently demonstrate how De...

Excerpt: ...pp.4 th 1228, 1238). Having done so, the Court finds sufficient factual allegations to support claims for conversion, either directly or via a theory of civil conspiracy. (See ¶29, ¶65, ¶69, ¶71 and ¶74 of TAC). “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (See Quelimane Co. v. Stewart Titl...

Excerpt: ... appropriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiffs are entitled to recover fees as the prevailing buyers under Civil Code Section 1794(d). The lodestar method for calculating fees applies to statutory attorney's fee awards. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) The trial court has broad authority to determine the reasonable amount fees to be awarded under the l...

Excerpt: ...eillance video taken of Plaintiff. Defendants decline to produce surveillance video of Plaintiff on the grounds of the qualified work product privilege. Plaintiff contended that the surveillance video was no protected under the work product rule and that there was a special need for the production of the tape. “The attorney work-product doctrine provides two levels of protection for attorney work product—absolute protection and qualified prot...

Excerpt: ... separate statement provide “all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” Here, the “Separate Statement” submitted by the Mr. Weed does not comply with Cal. Rules of Ct., Rule 3.1345(c). It simply attac...

Excerpt: .../2019, Defendants to submit a declaration showing a notice to employee was properly served and the subpoena was properly issued and served on the custodian of records. Hearing on this Motion continued to 7/22/2019 at 1:30 p.m. AFTER THE CONTINUANCE AND ASSUMING THE SUBPOENA WAS PROPERLY ISSUED AND SERVED Plaintiff Maria Arrieta seeks an order quashing the subpoena defendant ASAS Group, Inc. issued to SWH Mimi's Café, LLC, Plaintiff's current emp...

Excerpt: ...under submission. Void Judgment: The Cross-Complaint did not allege personal injury or wrongful death. The pleading alleged no specific sum of damages. Since the Cross-Complaint failed to allege any amount of the Default Judgment is void. “A judgment void on its face because rendered when the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant, is subject to ...

Excerpt: ...any statute prohibiting the filing of an amended costs memorandum, so long as the memorandum is timely under CRC 3.1700. Insofar as the Reply in support of this Motion addresses costs not listed in the costs memorandum filed on March 29, 2019, such arguments are disregarded, as new arguments or evidence are not permitted on reply, particularly where Plaintiff has not had an opportunity to respond. Filing and Motion Fees Defendant argues that the ...

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

Excerpt: ...ment that may be filed by Defendant, until the final resolution of this action is had. The Motion is denied. A corporation whose powers have been suspended for nonpayment of the corporate franchise tax lacks capacity to sue in California courts; and, if sued, it lacks capacity to defend. (Rev. & Tax Code, § 23301; Reed v. Norman (1957) 48 Cal.2d 338, 342; see Bourhis v. Lord (2013) 56 Cal.4th 320, 324; Color-Vue, Inc. v. Abrams (1996) 44 Cal.App...

Excerpt: ...ed as of June 30, 2016. Plaintiff's lawsuit was filed on May 12, 2017; she timely filed her PAGA letter with the LWDA on May 15, 2017. Without any stays, the deadline for filing a PAGA cause of action was November 2, 2017. (See Labor Code 2699.3; Brown v. Ralphs Grocery Company (2018) 28 Cal. App. 5 th 824, 839; Defendant's Reply at 3.) Defendant's motion to compel arbitration was filed on September 13, 2017 and was decided on October 27, 2017. D...

Excerpt: ..., marital status, sex, gender, gender identity, gender expression, age, sexual orientation or military and veteran status of any person, to . . . discharge the person from employment . . . or to discriminate against the person. . . .” (Govt. Code, § 12940, subd. (a).) Plaintiff must allege facts to demonstrate that: (1) she was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the...

Excerpt: ... defendant may demur to a pleading on the basis “[t]here is another action pending between the same parties on the same cause of action.” The above provision codifies “the common law plea in abatement.” The “rule of exclusive concurrent jurisdiction,” which is the principle Defendant seeks to enforce herein, is similar (see People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4 th 760, 770), and may be raised by demur...

Excerpt: ...aint (FAC) is OVERRULED, and its motion to strike portions of the FAC is DENIED. Plaintiff De Trinh's request for leave to file a second amended complaint is DENIED AS MOOT. Defendant's unopposed request for judicial notice is GRANTED. Defendant shall have until June 28, 2019 to file an answer to the FAC. DEFENDANT'S DEMURRER TO FAC Defendant demurs only to Plaintiff's ninth cause of action alleging a PAGA claim. In general, Defendant argues that...

Excerpt: ...Business and Professions Code section 17200; (4) negligence; and (5) equitable relief. Defendants Westpark Corte Bella Community Association, Optimum Professional Property Management, and Josephine Perez demurred to the Complaint. Because Plaintiff failed to oppose the demurrer, the demurrer was sustained with 15 days leave to amend. On December 31, 2018, Plaintiff filed a Second Amended Complaint (“SAC”). Defendants Westpark Corte Bella Comm...

Excerpt: ...filed on or before August 9, 2019. If a revised settlement and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues: 1. Provide a valuation for each individual cause of action. 2. There still is no mechanism within the stipulation for payment of the $625 (25% of the LWDA amount) to “aggrieved employees” as opposed to class members. T...

Excerpt: ..., hearsay. 2. Sustained, lack of foundation, hearsay. 3. Overruled. 4-5 Sustained, hearsay Declaration of Steve Rader. 1. Sustained as to “…after the homebuilder's counsel…” through end, hearsay, overrule as to balance. 2. Sustained, lack of foundation, improper expert opinion. 3. Sustained, lack of foundation, hearsay. 4-9 Sustained, Evid. Code § 1520. 10. Sustained, lack of foundation, hearsay. 11-12 Overruled. 13-18 Sustained, hearsay...

Excerpt: ... motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Mansouri v. Superior Court (2010) 181 Cal.App.4 th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4 th 1569, 1575. The burden rests with the party seeking to compel arbitration ...

Excerpt: ... 2), or (2) establishing that only Plaintiff could have accessed her work email regarding the revised agreements by, for example, demonstrating by way of admissible evidence (rather than “information and belief” or “an understanding”) that after initially signing on at the commencement of her employment using the default password she was required to create a unique password or identifier that only she could use. While the declarations cre...

Excerpt: ... injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court ruled that non-intentional torts ma...

Excerpt: ... Plaintiff filed this class action seeking to recover for alleged labor code violations on behalf of individuals employed by Defendant as “Job Coaches.” Over time, Plaintiff filed a First and Second Amended Complaint. Each time, Plaintiff sought to recover on behalf of individuals employed as “Job Coaches.” On March 12, 2019, Plaintiff filed a Third Amended Complaint. In this complaint, Plaintiff sought to recover for the same alleged vio...

Excerpt: ... of the petition to compel arbitration is without prejudice in the event that the Supreme Court, in theLawson case, rules that the part of a PAGA case seeking victim-specific relief in the form of unpaid wages is subject to arbitration pursuant to Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 (Esparza). Grounds for Ruling This is a PAGA-only action based primarily on alleged minimum wage and rest break violations. Plaintiff alleges vi...

Excerpt: ...ct an award rendered by the arbitrator shall be filed in any court of competent jurisdiction in the county in which the property is located.” [Emphasis added.] Vincent Decl., Ex. A. “[P]olicies favoring the efficiency of private arbitration as a means of dispute resolution must [] sometimes yield to its fundamentally contractual nature, and to the attendant requirement that arbitration shall proceed as the parties themselves have agreed.” [...

Excerpt: ...t approval of a PAGA or Class Action settlement files the settlement agreement, and the parties must do so here as well. If the parties want to file the settlement agreement conditionally under seal, and file a Motion to Seal, they are free to do so, and the court will consider the motion pursuant to CRC Rules 2.550 and 2.551. The court notes that it does not appear that the individual settlement amount is confidential, because the motion disclos...

Excerpt: ...ommitted misconduct by allegedly relating personal experience during deliberations. See Cal. Civ. Proc. Code § 657(1), (2). Plaintiff also argues that the jury awarded inadequate damages, that the evidence was insufficient to justify the jury's comparative fault finding, and that the verdict was against the law. Seeid. § 657(5), (6). For the following reasons, Plaintiff's motion is denied. Irregularity in Proceedings (Cal. Civ. Proc. Code § 65...

Excerpt: ...ed. The general demurrers to the third cause of action for intentional infliction of emotional distress and fifth cause of action for public nuisance are sustained with 15 days leave to amend. The Court declines to consider Defendant's reply papers, because they were not filed “at least five court days before the hearing,” nor were they served by a method “reasonably calculated to ensure delivery to the other party or parties not later than...

Excerpt: ...” The court's discretion will usually be exercised liberally to permit amendment of the pleadings. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, this policy should be applied only where no prejudice is shown to the adverse party. Atkinson v. Elk Corp. (2003) 109 ...

Excerpt: ...ruction Co. v. City of San Bernardino (1995) 32 Cal. App. 4th 687, 704. Section 1983 applies to persons acting “under color of” state law, and normally does not apply to private actors. (See Flagg Bros., Inc. v. Brooks (1978) 436 U.S. 149, 155–156.) “A private individual may be liable under section 1983 if she conspired or entered joint action with a state actor. [Citation.]” (Franklin v. Fox,312 F.3d 423, 441 (9th Cir.2002).) See, Dwig...

Excerpt: ...nded are reasonable. These circumstances may include, but are not limited to, factors such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount. The prevailing party has the burden of showing ...

Excerpt: ...rers are OVERRULED. As a preliminary matter, CCP 430.41(b) is inapplicable here as no demurrer was previously sustained in this action. The prior motion to dismiss was brought under the FRCP, not CCP. First Cause of Action – Unfair Competition The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. Defendants contend that the Ye...

Excerpt: ...e basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal. App. 4th 396, 404, citing Delaney v. Baker (1999) 20 Cal. 4th 23, 34. Thus, when care of an elder is at issue, the statutory definition of neglect speaks not of the undertaking of services, but of the failure to provide care. Covenant Care,...

Excerpt: ...2017-00941552 (“RNR Action”). Because the allegations in the FACCs in both actions are nearly identical, as are the demurrers and the motions to strike, the Court permitted Health Net to file a joint opposition to the motions to strike and a joint opposition to the demurrers. Similarly, it allowed RNR and NDR to file a joint reply in support of the motions to strike and a joint reply in support of the demurrers. (4/25/19 Minute Order.) The Co...

Excerpt: ...NED in part and OVERRULED in part. First Cause of Action for Breach of Contract The court sustained with leave to amend Defendants' prior demurrer to the breach of contract cause of action as to defendants Secure Channels and Proximity finding that California courts do not recognize a theory of vicarious liability of an entity for the acts and omission of an individual, so-called “reverse piercing.” Postal Instant Press, Inc. v. Kaswa Corp. (...

Excerpt: ...leading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless...

Excerpt: ...evelop the property. The motion substantially complies with California Rule of Court 3.1324. The motion does not state what allegations are being deleted or added by page, paragraph and line number. Id. at subd.(a). However, the motion includes a serially numbered proposed amended pleading. It also states the effect of the amendment, which is to add Fifth and Sixth Causes of Action. It states that it is in furtherance of justice to add all causes...

Excerpt: ...pleading which are judicially noticeable under Evidence Code §§ 451 or 452. The complaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Jenkins v. JP Morgan Chase Bank, NA (2013) 216 Cal.App.4th 497, 506. In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary ...

Excerpt: ...is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. Counsel's valuation of the wage statement claim states there are “46 pay periods in the wage statement Class Period and 26 full time equivalent employees who each worked 46 pay periods ….” (Ackermann Decl., ¶ 31.c.) Counsel should explain whether the “wage statement Class Period” differs from the “Cla...

Excerpt: ...videntiary sanctions, or instructions to the jury, were to be fashioned. Failing to respond to an authorized method of discovery is a misuse of the discovery process. Code Civ. Proc. § 2023.010(d). So, too, is disobeying a court order to provide discovery. Id., subd. (g); Van Sickle v. Gilbert (2011) 196 Cal. App. 4 th 1495, 1516. Imposition of sanctions for misuse of discovery lies within the trial court's discretion. Doppes v. Bentley Motors, ...

Excerpt: ... Plaintiff's supplemental request for judicial notice filed on 6/7/19 is DENIED. (See Evid. Code § 453 (“trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request.”).) The Court did not consider Plaintiff's reply papers filed on 6/7/19, in r...

Excerpt: ...pellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.) Currently, there are two binding appellate decisions that contain conflicting holdings on whether claims for unpaid wages under Labor Code § 558 are arbitrable: Zakaryan v. Men's Wearhouse, In...

Excerpt: ...Defendants South Coast Behavioral Health Inc., Charles A. McPhail, and Abdull Khan move to compel arbitration of this dispute and to stay this action pending resolution of the arbitration. (CCP 1280, et seq.; 9 USC § 4, et seq. the Federal Arbitration Act [FAA].) Co-Defendants South Coast Behavioral Health LLC and South Coast Behavioral Health Guesthouse Inc. also join in the motion. The court DENIES the motion as to all three Defendants, for th...

Excerpt: ...scope of the responses thereto, which were not produced, and that reasons existed to compel further production for these, then the Court reasonably required and requested a separate statement in accordance with CRC 3.1345(c). After the Motion was filed, MP filed a Separate Statement, however, the document is transforming the matter into another dispute, namely one to compel a further response – for some 45 RFPs approximately. The Separate State...

Excerpt: ...depose Toyota's Person Most Knowledgeable to obtain relevant information regarding how Toyota handled his warranty claims under the Act. (See McGaffey Decl. at Ex. B, Notice of Deposition.) In particular, Plaintiff argues that in order to recover a civil penalty of twice the amount of damages for his claim under Civil Code 1793 (c), he must prove that Defendant's failure to replace the vehicle or make restitution to him was willful and was not th...

Excerpt: ...tlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. Cal. Civ. Proc. Code § 664.6. Defendant contends that Plaintiffs and Defendant entered into a valid and binding settlement agreement before the court on February 25, 2019. In ruling on a motion to enter judgment pursuant to section 664.6, the trial court acts as a trier of fact. Kohn v. Jaymar- Ruby, Inc. (1994) 23 Cal.App.4 ...

Excerpt: ...r hearing on 6/27/19. In support of that motion, Servite filed the declaration of its former president Peter Bowen. Servite moves to seal paragraph 29 of the Bowen declaration because it contains confidential information regarding its former employee Larry Toner, who is not a party to this action. Disclosure of that information would invade Toner's third- party privacy rights in the details of his personnel file and his former employment. The cou...

Excerpt: ...71). This privilege should be differentiated from the privilege protecting confidential marital communications. (Evid. Code § 980). The privileges are two entirely separate and distinct privileges. (People v. Dorsey (1975) 46 Cal. App. 3d 706.) Here, the court finds that both apply. Plaintiff argues in Opposition that she discussed the ongoing alleged harassment and hostile work environment with witness Mrs. Hulme as it was occurring. But Mrs. H...

Excerpt: ...al or emotional injury'; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past.” Britt v. Sup. Ct., 20 Cal.3d 844, 864 (1978). And even where information is directly relevant to the plaintiff's claim, any compelled di...

Excerpt: ...erefore unnecessary to the litigation. For the following reasons, M.D.A.'s motion is denied. A prevailing party is usually entitled as a matter of right to recover costs in any action or proceeding. Cal. Civ. Proc. Code § 1032(b). If the items on a verified memorandum of costs appear to be proper charges, the memorandum is prima facie evidence of their propriety and the burden is on the party contesting them to show that they were not reasonable...

Excerpt: ...sidering all of the parties' papers, including their supplemental briefs, the court issues the following tentative ruling: Defendants' Petition to Compel Arbitration and Stay Litigation On 11/13/18, Plaintiff Kenneth B. Blye filed his Complaint alleging 15 causes of action against the following named Defendants: 1. Cresa Management LLC (CM) 2. Cresa Partners of Orange County LP (CPOC) 3. Cresa Partners-West Inc. (CPW) 4. Jeff A. Manley 5. Wayne L...

Excerpt: ...in interest by way of merger to BBCN Bank (plaintiff), commenced this action against A-1 Silk Screen, Inc. and Shin Ill Kang (collectively, defendants) alleging the following five causes of action: 1. Breach of promissory note, 2. Breach of commercial guaranties, 3. Claim and delivery, 4. Conversion, and 5. Appointment of receiver. This is a collections action on a business loan and related commercial guaranties for the outstanding principal bala...

Excerpt: ...luding providing that 287,520 shares of stock in PASS would be transferred from Don B. Clark to Ira Smith and Tony Ordaz in exchange for $920,000.00. (the “First Loan”). On 11/26/12, Plaintiff and Don B. Clark signed a promissory note in favor of Ira Smith and Tony Ordaz for $50,000.00, to start being repaid on 1/1/18. (the “Second Loan”). With the passing of Don B. Clark, Defendant Linda Clark is alleged to be the beneficiary of both loa...

Excerpt: ...0.00 to Defendant Stacy Bui. The loan had a 12-month term and interest at 14% per annum. The loan was personally guaranteed by Kristine and Katherine Tran. All Defendants failed to pay the loan per its terms. Plaintiff alleges that each of the defendants fraudulently induced him into making the loan. Plaintiff filed his complaint against Defendants Stacy Bui, Kristine Tran and Katherine Tran on 10/25/18. The complaint alleges causes of action for...

Excerpt: ... June 24, 2019, although the court expects to trail or continue the trial. Moving Parties contend as follows: 1. On 5/6/19, Custer served the “Disclosure of Information Concerning Expert Witnesses” attached as Exhibit A thereto, designating himself as an un-retained expert. A party's designation of an expert, including a party's designation of himself as an expert, must be supported by an attorney declaration providing, among other things, a ...

Excerpt: ...ual or potential buyers or customers]; Defts have not met their initial burden of showing the emails are protected as prelitigation communications [circumstantial evidence supports a finding that Defts were not seriously considering litigation at the time the emails were sent]; Deny. ...

Excerpt: ...tion.” Plaintiff, however, in Opposition presented evidence that there is no pending criminal action against Defendant and the O.C.D.A. rejected the case and does not intend on filing any criminal action against Defendant. (See Kazerouni Decl., ¶¶7-8, Exh. A.) As such, based on the evidence, it is highly unlikely that Defendant will be faced with a criminal action. Further, as to Defendant's contention concerning his right to exercise his 5 t...

Excerpt: ...ly before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment 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.” Code of Civil Procedure section 664.6 states, “If parties to pending litigation stipulate, in a writing signed by the parties outs...

Excerpt: ...covery referee are: multiple voluminous discovery motions involving various issues of privilege, and third parties. The Court also believes it is likely, given the virtually unbroken chain of discovery disputes in this case, that more such disputes will be forthcoming before trial. The parties are directed to meet and confer before 7-1-19, to determine whether they (i) agree to the appointment of a discovery referee pursuant to Code of Civil Proc...

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

Excerpt: ...ission (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, 4, and Exhibits...

Excerpt: ...anted. (Code Civ. Proc. §§ 526, 527; Pro–Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1680– 1681.) These issues are to be considered on a sliding scale. “[T]he more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm they allege will occur if the injunction does not issue.” (Right Site Coalition v. Los Angeles Unified Sch. Dist. (2008) 160 Cal. App. 4 th 336, 342.) Defendants have not establis...

Excerpt: ...tual intention to enter into a binding contract. (See Civ. Code § 1621; see also 1 Witkin, Summary of Cal. Law (10th ed. 2005), Contracts §§ 102, 103). The alleged portions of the Code of Conduct, Referee Complaint Policy, and Prohibitions Against Misconduct Against Referees are not the sort of public notice that constitute an offer. (See generally Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 271-273.) 3rd cause of action, breach of contract. T...

Excerpt: ...n, negligence. The complaint states facts sufficient to constitute this cause of action. (See Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 133, 1339 [elements]; see also Compl. ¶¶ 14-17.) “There is no need to require specificity in the pleadings.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608 (Ludgate).) 2nd cause of action, premises liability. The complaint states facts sufficient to constitute this caus...

Excerpt: ...lar. Plaintiff failed to allege a cause of action for professional negligence. Plaintiff should re-draft these six causes of action. “'The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss o...

Excerpt: ...nt creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of para...

Excerpt: ...propriate hours expended and hourly rates. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) Plaintiffs are entitled to recover fees as the prevailing buyers under Civil Code Section 1794(d). The lodestar method for calculating fees applies to statutory attorney's fee awards. (K.I. v. Wagner (2014) 225 Cal.App.4th 1412, 1425.) The trial court has broad authority to determine the reasonable amount fees to be awarded under the lode...

Excerpt: ...heir merits. IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461. Because the policy favoring amendment is so strong, “it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530 (internal quotations omitted). This is particularly true for amendment of answers, as a defendant denied l...

Excerpt: ...pointed for the hearing.” Ordinarily, when a defendant files an opposition on the merits, any defect in service is waived. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697).) Here, however, not all defendants opposed the Motion. While Defendants Ge Diao and Leo Liu filed an Opposition to the motion for summary adjudication, Defendants Surterre Properties, Inc. and Rex McKown did not file an Opposition to Plaintiff's Motion for Summary Adjudicat...

Excerpt: ...court may, in furtherance of justice and on any terms as may be proper, allow a party to amend any pleading....' (Code Civ. Proc., § 473, subd. (a)(1).) However, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. . . . The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. . . .'” Howard v. County of San Diego (2010) 184 Cal.App.4th 142...

Excerpt: ...resident defendant may be subject to general jurisdiction if his or her contacts with the forum are substantial, continuous and systematic. (See Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal. 4th 434, 445.) Lowell Menorca II (“Menorca”) presented evidence to establish that the Court does not have general jurisdiction over Menorca, and Plaintiff does not dispute this argument. A nonresident defendant may be subject to specific juris...

Excerpt: ...mers v. McClanahan (2006) 140 Cal. App. 4 th 403, 413; Dill v. Berquist (1994) 24 Cal. App. 4th 1426, 1439-40. Plaintiff has not met this burden. Purported service on each of them by way of an asserted agent who in fact was not authorized to accept service on their behalf was defective. Nor did Plaintiff personally serve Defendants or their agent or comply with the requirements for substitute service. Code Civ. Proc. § 415.20. Plaintiff filed a ...

Excerpt: ...iability. The opposition filed to this OSC only says that, perhaps, a portion of the money loaned by plaintiff to Tri-Emerald (a debt documented by notes from Tri-Emerald and guarantees from the other defendants) may have ended up with Lend Plus. It is still not clear what Lend Plus did that makes it liable to plaintiff. The court's purpose in setting this OSC was partially to determine whether Lend Plus was derivatively liable based on an unlawf...

Excerpt: ...mers v. McClanahan (2006) 140 Cal. App. 4 th 403, 413; Dill v. Berquist (1994) 24 Cal. App. 4th 1426, 1439-40. Plaintiff has not met this burden. Purported service on each of them by way of an asserted agent who in fact was not authorized to accept service on their behalf was defective. Nor did Plaintiff personally serve Defendants or their agent or comply with the requirements for substitute service. Code Civ. Proc. § 415.20. Plaintiff filed a ...

Excerpt: ...ir reply declaration under seal, but failed to file a motion to seal. To promote the policy of maintaining the openness of public proceedings, the Court declines to consider the lodged unredacted exhibit in making its determination. General legal authority regarding preliminary injunctions The court may grant an injunction in the following cases: “(1) When it appears by the complaint that the plaintiff is entitled to the relief demanded, and th...

Excerpt: ...1,200 in monetary sanctions. Despite several meet and confer letters from Defendant's counsel, Plaintiffs have failed to respond and have failed to pay the monetary sanctions. The Court is inclined to find that it would be premature and improper to impose terminating sanctions at this time, for three reasons. First, as a rule, it is a violation of due process and an abuse of discretion for the trial court to impose terminating sanctions as punish...

Excerpt: ...d by the doctrine of res judicata because they are related to the conservatorship action for which she was the conservator. Generally, res judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal....

Excerpt: ...plaint is for rescission “due to misrepresentation.” The new Defendant has been intimately involved in this litigation, is the person who signed the discovery verifications on behalf of Khoshbin Properties, and is the person who made the alleged misrepresentation. Further, Defendant does not dispute that the FAC has not run on these claims. Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus...

Excerpt: ...ffs' premature filing. The court thus addresses the motion on the merits. See Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4 th 1077, 1986. Plaintiffs' motion is not a motion for reconsideration pursuant to California Civil Procedure Code § 1008. Judge Chaffee's order denying Plaintiffs' prior motion for attorneys' fees and costs was expressly without prejudice. See 01/11/19 Order. Plaintiffs are the prevailing partie...

Excerpt: ... and based on a settlement agreement entered into between Wells Fargo and Todd Fligner in November 2016 whereby the parties agreed that Todd Fligner would dismiss a pending case in consideration of Wells Fargo reviewing him for a loan modification. Wells Fargo contends that Plaintiffs cannot enforce the settlement agreement because the prior case was brought by Todd Fligner as an individual and the settlement was entered into by him and signed in...

Excerpt: ...17200. The Demurrer is sustained without leave to amend as to claims for cancellation of instruments, wrongful foreclosure and quiet title. Wells Fargo's request for judicial notice of exhibits “A” through “G” is granted. Evid. Code §§ 452(c), (d), (h), 453. 1st COA – Negligent Misrepresentation The premise of this claim is “Defendants misrepresented to Plaintiffs [] that Plaintiffs had a qualified hardship, and that Plaintiffs woul...

Excerpt: ...rrington M.D., attorney Taylor Bentley drafted false documents offering to sell prospective investor Ahmed Ewais shares in GDBC. But the documents falsely stated that Khoury held a 15% interest in GDBC and falsely concealed Khalid Bin Jabor Al Thani's 40% interest in GDBC. Because the false offerings were illegal under Qataran law, Khoury was arrested and forced to pay $400,000 in bail money to get out of jail. The Weintraub Cross-Defendants argu...

Excerpt: ...sue, the Court here has considered the Demurrer on the merits. On the merits, the COA as pled is barred by the Economic Loss Rule. Under the Economic Loss Rule, where a purchaser's expectations are frustrated because the product is not working properly, his remedy is in contract alone, for he has suffered only “economic” losses. (State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1232; Robinson Helicopter Co., Inc. v. Dana...

Excerpt: ...d under California Civil Procedure Code § 581, the trial court lacks jurisdiction to act further other than to award costs and attorney fees. Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 268. Exceptions may apply, however. One such exception is post-judgment sanctions. As the court in Frank Annino & Sons Construction, Inc. v. McArthur Restaurants, Inc.(1989) 215 Cal.App.3d 353 stated “there is no basis in logic or public policy to...

Excerpt: ...states that each of the affirmative defenses fails to allege “facts sufficient to constitute a defense and [is] uncertain.” However, this defect was not raised by Defendant, and in the end, it does not impact the analysis. Where affirmative defenses are “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in t...

Excerpt: ...directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. The Court will not approve class members “opting-in” to the FLSA portion of the settlement by cashing checks. (Settlement, ¶ 45.) This procedure is unnecessary, in an opt- out settlement under California class action procedural law. A recent 9th Circuit decision confirms the release here is sufficient to extend ...

Excerpt: ...n April 12, 2019, dismissal without prejudice was entered as to Defendant Portable Machine Works, LLC. Accordingly, Plaintiffs' motion for summary judgment or, alternatively, for summary adjudication as to the first cause of action for breach of contract and second cause of action for account stated against Defendant Portable Machine Works, LLC is MOOT. Third Cause of Action against Defendants Judith Imbraguglio and Deborah Accardo: “A party mo...

Excerpt: ...ge County Assessment Appeals Board (“AAB”). Even though a dismissal has yet to be entered, the ruling is not interlocutory, because no further judicial action is required by the court to render a final determination between plaintiff and AAB. City of Carlsbad v. Scholtz, 1 Cal.App.5th 294, 299 (2016)(citing Dana Point Safe Harbor Collective v. Sup. Ct., 51 Cal.4th 1, 5 (2010)). Plaintiff has filed a Notice of Appeal, and thus, a stay is requi...

Excerpt: ...n the stock market with the gains used to pay the property taxes. In his motion, the defendant concedes this second option, and no evidence is presented showing when the plaintiff became aware the HELOC funds had not been used for this other purpose. The defendant thus did not meet the initial burden to show these causes were time-barred. The suggestion that the plaintiff was on notice that the funds had not been invested in the stock market beca...

Excerpt: ...emises liability and general negligence. It alleges that, on February 25, 2017, Plaintiff was injured at the moving defendant's supermarket in Santa Ana as a result of a dangerous and defective condition in the store. Although the complaint alleges that the Plaintiff fell as a result of a spill of a foreign substance that accumulated in the walkway, her deposition testimony indicates that the incident involved Minute Maid lemonade bottles falling...

Excerpt: ...A party opposing arbitration, on grounds like waiver, bears the burden of proof. Id. A party may file a petition to compel arbitration based on a written arbitration agreement. See, C.C.P. § 1281.2. The moving party must prove by a preponderance of the evidence the existence of an arbitration agreement, and that the dispute is covered by the agreement. See, Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413. Petitioner'...

Excerpt: ...be used to pay the mortgages on the respective properties, but the defendant kept the money instead. Such a theory is outside the terms of the arbitration agreement. The defendant counters that he was hired to represent the plaintiff in court. (See Reply 2:11-12.) But there is no indication any lawsuits were filed or that he took any action to maintain any litigation. It is not even clear reading the agreement that litigation was the focus of the...

Excerpt: ...submitted any evidence to show that any supplemental responses were served on Plaintiff. Accordingly, the Court considers the merits of the motion. Interrogatory no. 15.1 asks for identification of facts, names and contact information of witnesses, and documents supporting denials of material allegations and affirmative defenses. Defendant's response provides reasons why denials and affirmative defenses were pleaded by Defendant, but fails to add...

Excerpt: ...tive order proposed by Plaintiff, which mirrors the LASC Form Protective Order, with the Court's own modifications thereto. The Court finds Defendant's proposed protective order is unreasonably one- sided. Furthermore, Defendant has not demonstrated why Plaintiff's proposed protective order is deficient in any respect. Because Defendant responded to each of Plaintiff's requests at issue, stating that it would produce responsive documents, and in ...

Excerpt: ...omson v. Anderson (2003) 113 Cal.App.4th 258, 266.) In addition to the evidence and the arguments in the Motion, the Court noted the existence of Hawaii choice-of-law clauses in the promissory notes, as well as what appears to be a mandatory forum selection clause within the August 2017 (settlement) agreement, that dictates that the courts of Hawaii shall have exclusive jurisdiction to hear any disputes arising out of the agreement. (See Complain...

Excerpt: ...gation pursuant to subdivision (b) of Section 391.3. The motion for an order requiring the plaintiff to furnish security shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant.” In addition, CCP 393.3 (a) provides: “(a) Except as provided in subdivision (b), if, after hearing...

Excerpt: ...es line 3 as to Onofre Valencia; (9) Page 4, Prayer for Damages line 3 as to Mireya Valencia. Plaintiffs do not oppose the motion to strike as to defendant Margarita R. Ramirez who was not present at the time of the accident. Accordingly, the motion to strike as to Margarita R. Ramirez is GRANTED. The motion to strike as to defendant Carlos Ramirez is DENIED. Civil Code § 3294(a) provides for punitive damages “[i]n an action for breach of an o...

Excerpt: ...ums ICW paid in workers' compensation payments to Cortez. ICW moves in limine to preclude Agar from presenting a defense of comparative negligence on the part of Cortez. For the following reasons, both motions are denied. ICW is the workers' compensation insurer for Cortez's employer at the time of the incident. ICW intervened in the lawsuit to seek reimbursement of its expenditures for medical and disability payments to Cortez. Cortez settled wi...

Excerpt: ...ty against the LLC defendants, only box-checking. Checking too many boxes is a common occurrence with a Judicial Council form complaint, and risky in light of CCP §128.7. Nevertheless, it happens all the time. Plaintiff has checked every box under Para MV-2, which exposes the LLC defendants to direct liability for actually operating the subject vehicle, as well as negligently entrusting it to the defendant driver, negligently employing the defen...