Excerpt: ... Motion is not stayed pending appeal. CCP §916(a); Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368-369, superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197 Defendant Wells Fargo Bank, N.A,'s Motion for an Award of Attorney's Fees under Civil Code §1717 is Granted. The Court has considered all of the parties' papers, including the supplemental briefing ordered by the Court on May 10. 2019, t...

Excerpt: ...n showing all changes, deletions and additions shall be submitted as well. As to the Settlement: 1. There is insufficient evidence from which this Court can make a finding that the settlement is fair, adequate and reasonable. Plaintiff Counsel's declaration submitted with the motion is conclusory as to this issue, without sufficient analysis of Plaintiff's valuation of each of the causes of action based on the documents and testimony, including t...

Excerpt: ... exhibits are ordered stricken as irrelevant to the pending Petition to Confirm Arbitration Award and Petition to Vacate Arbitration Award: 1. Exhibit 2 to Friedlander Decl. (Letter from TGS to Brown dated May 18, 2005); 2. Exhibit 3 to Friedlander Decl. (Letter from TGS to Brown dated June 18, 2010); 3. Exhibit 6 to Friedlander Decl. (Letter from TGS's counsel to Brown's former counsel dated April 19, 2016); 4. Exhibit 9 to Friedlander Decl. (Br...

Excerpt: ...on and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." Avis does not meet this burden. Furthermore, to the extent that Avis' motion for summary adjudication of the negligent entrustment claim is new, that issue does not completely resolve a cause of action, defense, damages claim or duty...

Excerpt: ...under the contract between the parties. 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 adjudicating a party breached a duty. Paramount Petroleum Corp. v. Superior Court (2014) 227 CA4th 226, 244. Even if items 2 through 4 could be summari...

Excerpt: ...s a 50% shareholder of CSS. Thus, even if all this litigation had never been filed, Wardak would have been free to invoke the involuntary dissolution procedures of Corp. Code §1900(a). This ruling is without prejudice to (1) a petition under Corp. Code §1904 asking the court to take jurisdiction over the voluntary winding-up proceeding if it appears necessary for the protection of any parties in interest, or (2) defendants, or any other appropr...

Excerpt: ...ut of having their personal information disclosed in response to a mutually agreeable (or court- ordered) Belaire-West notice, whose cost defendant fully bears. In addition, defendant's supplemental response to Special Interrogatory #30 may be limited to “AGGRIEVED EMPLOYEES” instead of “PERSONS”, as defined in plaintiff's Special Interrogatories. Plaintiff indicated a willingness to have a Belaire-West notice sent in connection with the ...

Excerpt: ...s, deletions and additions shall be submitted as well. As set forth in detail below, the Court has serious concerns about how carefully the settlement materials were drafted and whether the settlement is reasonable for a number of reasons. While the Court does not expect the first go-around of a motion for preliminary approval to be letter perfect, it expects a lot more than what was provided here. This is especially true where one of the lawyers...

Excerpt: ...ell as the conflicting evidence at trial, do not show that the jury's verdict was contrary to any instructions, or otherwise against law. (CCP 657(6); Kaiser Cement & Gypsum Corp. v. Allis-Chalmers Mfg. Co. (1973) 35 Cal.App.3d 948, 958.) Third, the court is not persuaded that use of a general verdict, in light of the parties' inability to agree on a special verdict form, or that any instructions given or not given, were error. (CCP 657(1), (7).)...

Excerpt: ... fall under the arbitration provision, specifically subdivisions (C), (F), and (H). Plaintiff also contends that she would not have incurred arbitration fees absent defendants' alleged fraud (TAC at Paras. 25, 27), which would fall under subdivision (H) of the arbitration provision above. Thus, the arbitration provision of the HBLW applies to plaintiff's claims in this action Plaintiff does not dispute that she entered the HBLW, or that it is val...

Excerpt: ...improper double collection. Would the second payment still tax? In order to show that there was not an initial payment of sales tax, Balboa would judgment. If there was no initial payment, then there would be no double payme n If there was an initial payment of sales tax, some equitable arrangement should o for the payment or CDK Global should return the payment. WAC 458-20-211 (g) “retail sale” excludes any purchases for the purpose of resal...

Excerpt: ...presentation, (2) knowledge o 4) justifiable reliance, and (5) damages. (Lazar v. Superior Court (1996) 12 Cal. 4 Plaintiff alleges Defendant “Defendants made false statements and promises in t h oversight of the modification process and good faith in providing a modification e v 27.) Defendant argues that the economic loss rule bars this misrepresentation cl a The California Supreme Court has concluded that a Plaintiff may not recover tort d a...

Excerpt: ...]fter a trustee's deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.5, 2923.7, 2924.11 or 2924.17…” Defendant presents no judicially noticeable documents which demonstrate Plaintiff has not suffered “actual economic damages,” sufficient to support ...

Excerpt: ...chael Rodarte Jointly and Severally Motions by Defendants (1) Estates of Monarch Cove Community Association, (2) Robert Shipp, (3) Estate of Jeffrey Rhoades, and (4) William and Sophie Bendush for Attorneys' Fees The motions for attorneys' fees and costs are GRANTED pursuant to Civil Code Sections 1717 and 5975(c) and the Memorandum of Costs filed 1/16/19. The Judgment awarding attorneys' fees and costs in favor of the moving parties will be ente...

Excerpt: ...in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A demurrer for uncertainty should be overruled if the facts are presumptive...

Excerpt: ...ers, there are no facts pled tending to show that a corporation owes a fiduciary duty to shareholders such as plaintiffs. In this case, the damages suffered by the individual plaintiffs by the sale of their shares at an artificially deflated value, is not incidental to the general damage to the overall value of the shares in Posh Shop, Inc. because only the plaintiffs sold their shares. Because the plaintiffs' claims against the company and Ms. N...

Excerpt: ... with Global Sourcing Solutions, Inc.; (2) its claim is for a fixed or readily ascertainable amount; (3) it is probably valid; and (4) the attachment is sought for no other purpose than to secure Plaintiff's claim. (Code of Civ. Proc., § 484.090, subd. (a).) Accordingly, the court grants the requested attachment in the amount of $228,951.57, which includes: the principal sum due, (i.e., $221,487.57); interest from August 20, 2018 (i.e., $4,824);...

Excerpt: ... of the petition on respondents and any others with a recorded interest in the subject property as required. See, Health & Safety Code § 17980.7(c). Also, petitioner City of Westminster submitted evidence of substandard conditions at the subject property and failure to rectify such conditions that supports appointment of a receiver. On April 29, 2019, the Court appointed Mr. Eric Beatty Receiver on an interim basis for the real property which is...

Excerpt: ...self state with any specificity, which discovery requests Plaintiff seeks a further response, leaving the Court to sift through 420 pages of documents to make such a determination. In the future, the Court orders the parties to identify the specific discovery requests at issue in the notice of motion. (1-2) On Plaintiff's Motion to Compel Further Responses to Special Interrogatories, Set 1 and Form Interrogatories, Set 1, the Court rules as follo...

Excerpt: ...ional request for an order striking the class action allegations is DENIED. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement before arbitration can be compelled. (See 9 U.S.C. §2 and CCP §1281.2). "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...

Excerpt: ...s the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or di...

Excerpt: ...rectly relevant to a cause of action or defense, i.e., that it is essential to determining the truth of the matters in dispute. (Britt v. Sup.Ct. (San Diego Unified Port Dist.)(1978) 20 Cal.3d 844, 859-862; Harris v. Sup.Ct. (Smets) (1992) 3 Cal.App.4th 661, 665 (citing text) (disapproved on other grounds in Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 557 & fn. 8).)” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial ...

Excerpt: ...ute's cost-shifting provisions.” (Id. at 142.) “[I]t is apparent that once the conditions of … section 998 are met, a defendant may be required to pay expert witness fees incurred during arbitration. . . There is nothing to suggest that the final phrase [of section 998(d)—'in addition to plaintiff's costs'— applies only to cases that go to trial but not to arbitration. Indeed, it is evident that the above statute uses the term ‘plaint...

Excerpt: ...ence Code §452(d)). The second Request is DENIED as irrelevant. (See Zucchet v. Galardi (2014) 229 Cal.App.4 th 1466, 1474, fn. 5). “[A] written trial court ruling has no precedential value.” (Se Bolanos v. Superior Court (2008) 169 Cal.App.4 th 744, 761). As set forth in its Notice of Motion, the primary legal bases for Defendant's motion are CCP §128 and CCP §187. However, neither provision expressly permits a determination as to a Plain...

Excerpt: ...ust be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914, and Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1...

Excerpt: ...tions were filed. Thus all discovery regarding hourly-paid employees is moot. The scope of discovery is broad and is construed liberally in favor of disclosure. (Code Civ. Proc., § 2017.010; Williams v. Superior Court(2017) 3 Cal.5th 531, 541.) There is “no obligation on a party propounding interrogatories to establish good cause or prove up the merits of any underlying claims.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 550.) Further...

Excerpt: ...ia Code of Civil Procedure § 2030.220(a) states that “[e]ach answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.” “[P]arties, like witnesses, are required to state the truth, the whole truth, and nothing but the truth in answering written interrogatories.” Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783. “A party may not deliberately m...

Excerpt: ...of Service on Summons and Complaint, service on Saif Almarri was by substituted service on his wife. Service was not complete until 10 days after mailing, or May 9, 2019. Because the hearing was set for May 30, 2019, service had to be completed by May 7, 2019. Thus, Almarri did not receive adequate notice. There is No Showing of a Contract The documents attached to the declaration of Dr. Leaf are an e- mail thread and a general proposal of what i...

Excerpt: ...by Defendant Horner On 5/9/19, Defendant Horner filed a bankruptcy petition, which triggers an automatic stay. So the question arises whether the court may rule on the two motions below. Here, Plaintiffs had already obtained a judgment for possession and writ of possession prior to Defendant's bankruptcy filing. So prior to the bankruptcy filing, it had already been established, as a matter of law, that Defendant had no legal or equitable right t...

Excerpt: ...3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests only the sufficiency of the complaint, a c...

Excerpt: ...on, it had not yet been approved. Second, the Motion as filed is defective on its face, as it did not state the date and time of the hearing or identify the papers upon which it would be based, as required by C.C.P. § 1010 and CRC 3.1110(b),or the date of the filing of the action, as required by CRC 3.1110(b). However, as Plaintiff responded on the merits, those defects are waived. (See Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 and Ca...

Excerpt: ...ded by statute. (Gov't Code § 815(a).) City further argues that the liability of a public entity for injury caused by the dangerous condition of public properly is exclusively governed by Government Code Section 835, which Plaintiff has already alleged in her first cause of action for premises liability. City correctly argues that Plaintiff's premises liability cause of action alleges liability based on the dangerous condition of public property...

Excerpt: ... the present motion, as well as $21,646 in expert witness fees. Plaintiff seeks the award pursuant to Civil Code §3426.4. Defendants oppose the motion, not because they do not believe Plaintiff is entitled to fees under Civil Code §3426.4, but because the amounts sought by Plaintiff are unreasonable. Under Civil Code §3426.4, where there is “willful and malicious misappropriation…the Court may award reasonable attorney's fees and costs to ...

Excerpt: ...ting of the pecuniary loss suffered by the heirs. [Citations.]' [Citation.]” Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263. Defendants argue that Plaintiff's wrongful death claim fails because Plaintiff has not pleaded a causal link between the decedent, Bertil Osbeck's (“Decedent”), injury and his death. Defendants contend that because wrongful death claims are statutory in nature, specificity in the pleadings is required...

Excerpt: ...ense and hardship, and courts carefully weigh the propriety of such an appointment in exercising their discretion to appoint a receiver. Hoover v. Galbraith (1972) 7 Cal.3d 519, 528. The “provisional remedy of receivership is utilized sparingly and only upon a compelling showing of need” for the receiver. IFS Indus., Inc. v. Stephens (1984) 159 Cal.App.3d 740, 756. A court may appoint a receiver only on a ground specified by statute. Marsch v...

Excerpt: ... prior to that conference regarding the status of the settlement administration. Plaintiffs should suggest a date for the status conference. The final report must include all information necessary for the Court to determine the total amount actually paid to class members. Plaintiffs shall also submit, at least 10 days prior to the conference, a [Proposed] Amended Judgment directing Defendant (or the Claims Administrator on Defendant's behalf) to ...

Excerpt: ...e likelihood that the party seeking the injunction will ultimately prevail on the merits of its claim and (ii) the balance of harm presented, i.e., the comparative consequences of the issuance and nonissuance of the injunction. Fleishman v. Superior Ct. (2002) 102 Cal.App. 4 th 350, 355-56. The moving party bears the burden of presenting facts establishing the requisite reasonable probability of prevailing on the merits of its claims. Id. at 356....

Excerpt: ...to allow the matters to be heard together and it would allow the Court to have a fuller record. The Defendants' arbitration motions were pending in the case for some three months' time. Judicial notice is taken of the records of the case in relation to these matters. (See Evidence Code § 452(d); see Dillard v. McKnight (1949) 34 Cal.2d 209, 218 (“a trial court is bound to take judicial notice of its own records in the same action”); Nichols ...

Excerpt: ...iability fails as a matter of law because it is expressly preempted by federal law, including by not limited to, 21 U.S.C. § 360k(a) 3. Plaintiffs' failure to warn claims fail because they are barred by the Learned Intermediary Doctrine. A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff's action has no merit; i.e., that, as to each cause of action, one or more e...

Excerpt: ...inventory levels. The job required occasional walking, but was otherwise sedentary. Her supervisor was Patrick Murphy. On 10/17/17, plaintiff sustained an achilles tendon injury to her left foot while competing in a roller derby match. She requested, and was granted, an initial leave of absence through 10/31/17. She thereafter requested unpaid leave through 02/11/18. Defendant agreed to hold plaintiff's position though 01/31/18 – noting that pl...

Excerpt: ...nd fixing the amount of attorney's fees to which they are entitled as the party prevailing on the contract in this action. The motion also requests that the monetary sanctions under CCP §128.5 awarded by the Referee, be extended to the entire proceeding from the date of the filing of the Petition for Alternative Writ to the final proceedings re fees and costs, in addition to those the Court has awarded per the recommendations of the Referee for ...

Excerpt: ... request for a continuance must be considered on its own merits.” (Id., at rule 3.1332(c).) Moreover, on motion of any party, the court may “reopen discovery after a new trial date has been set[.]” (Civ. Proc. Code § 2024.050(b).) The court may grant a continuance when good cause is shown, by circumstances including the following: • A party's excused inability to obtain essential testimony, documents, or other material evidence despite d...

Excerpt: ...angerous condition on the floor of the store at the time of the incident. Second, that Plaintiffs are unable to prove that a dangerous condition on the floor of the store caused their fall. The Court notes that Plaintiff Allen Franz has been dismissed from this lawsuit without prejudice, because said Plaintiff passed away after filing the lawsuit, and no steps were taken under Code of Civil Procedure §377.31 to substitute in a successor plaintif...

Excerpt: ... State Bar has concurrent jurisdiction. (Cal. Rules of Court, rule 9.40(f).) If it is true that attorney Reiland failed to advise the Court and the State Bar of his professional move, that would appear at best to be an ethical lapse by Robert Reiland and Mario Palencia better addressed by the State Bar. Finally, the Court notes that neither Robert Reiland nor his supervising California attorney, Mario A. Palencia (SBN 300315), have filed oppositi...

Excerpt: ...efined in Section 1161 of the Code of Civil Procedure:” . . . “(b) If it appears from the complaint or affidavit, or otherwise, that the superior court or court location where the action or proceeding is commenced is not the proper court or court location for the trial, the court where the action or proceeding is commenced, or a judge thereof, shall, whenever that fact appears, transfer it to the proper court or court location, on its own mot...

Excerpt: ...triking the complaint and dismissing the action and assessing reasonable attorneys' fees and costs, on the grounds that: (a) Plaintiff failed to provide sufficient Notice to the Defendant before filing the lawsuit; (b) the Complaint is without factual or legal merit and was filed primarily for an improper purpose to harass and extort money from the Defendant; (c) Plaintiff failed to comply with statutory notice to Defendant; and (D) deficient Ser...

Excerpt: ...(AR 135-136.) In a prior writ proceeding, this court found that the alleged false statements had been obtained in violation of Petitioner's POBRA rights, so that the allegations of dishonesty against him could not be sustained and could not form the basis of his termination. The court remanded the case to the City Council to reconsider the appropriate penalty, based exclusively on Petitioner's violations of departmental policy, and excluding any ...

Excerpt: ...to the filing of the documents and does not extend to the truth of any disputed factual matters therein. Defendants' objections to the Declaration of the City of San Bernardino are overruled. The court declines to rule on Defendants' remaining objections as they are not material to the disposition of the summary judgment motion. Plaintiff alleges that Defendants owed Plaintiff the level of skill and care that a reasonably careful lawyer would use...

Excerpt: ...he moving papers. This court continued the hearing on this petition for Attorney Petrohilos to file the proper substitution of attorney forms, which Attorney Petrohilos has since done. The petition was timely and complies with all procedural requirements, and was duly served and filed. (Code Civ. Proc., §§ 1285.4, 1286, 1288, 1288.4.) Plaintiffs' request for post-award, prejudgment attorney's fees and costs is granted pursuant to a timely filed...

Excerpt: ...bject to the demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. . . . [¶] (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following: [¶] (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement res...

Excerpt: ...y, breach of duty, causation, and damages apply.” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4 th 120, 126). Defendant's Demurrer, however, does not demonstrate that the Complaint insufficiently alleges a cause of action for negligence. Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4 th 992, 998, states, “Moreover, we may affirm the sustaining of a demurrer only if the complaint fails to state a cause of action under any possible...

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

Excerpt: ...Association (Ladas) (1993) 19 Cal.App.4 th 761, 773-774, states, “ ‘[S]ection 1033.5, enacted in 1986, codified existing case law and set forth the items of costs which may or may not be recoverable in a civil action. [Citation.]' [Citation.] An item not specifically allowable under subdivision (a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if ‘reasonably necessary to the conduct of t...

Excerpt: ...vernment Code, the court, at the request of the alleged victim, may order the identity of the alleged victim in all records and during all proceedings to be either Jane Doe or John Doe, if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense . . . .” Here, Plaintiff seeks to seal the declarations of Alexis Bastedo, filed on 11-26-18 and 11-29...

Excerpt: ...e or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what app...

Excerpt: ... . . . .” Code of Civil Procedure section 2031.300, subdivision (b), provides, “If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: . . . [¶] (b) The party making the demand may move for an order compelling response to the demand.” Code of Civil Procedure 2031.310, states, in part, “On receipt of a response to a demand for inspectio...

Excerpt: ...g apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] A representation of inability to comply is inadequate, incomplete, or evasive. [¶] An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with both of the following: [¶] (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall ...

Excerpt: ...appears that the Sixth Amended Complaint alleges the same fraudulent scheme as in Barrons, with differences in the parties and the property at issue. For the same reasons set forth in the Court's ruling in the Barrons Demurrer, the Demurrer in this action is SUSTAINED without leave to amend as to the 3 rd, 7 th, 8 th, 10 th and 13 th causes of action. Plaintiffs' request for judicial notice is GRANTED. PETITION TO VACATE ARBITRATION AWARD BY KORN...

Excerpt: ...suant to Evidence Code §452(h). 7th, 8 th and 10 th Causes of Action for Constructive Fraud, Intentional Misrepresentation and Fraud by Concealment Paragraph 126 of the 5AC alleges that CBRE aided and abetted other defendants in misrepresenting the actual purchase price of the property in question. This allegation is incorporated by reference into all of the causes of action at issue here. As explained by the court in Casey v. U.S. Bank National...

Excerpt: ...udication against 3 separate cross-complainants into one motion, the court has decided, for expediency's sake, to forgive those defects and get to the heart of the matter. CFO Door has established that its scope of work did not include removal of the door stop over which plaintiff tripped. As a matter of law, the Subcontract between CFO Door and Day Construction expressly limits any duty that CFO Door may have to indemnify to only those claims ar...

Excerpt: ...f the flooring were altered to ensure patrons' safety, there are still two areas of flooring that remain unaltered and are in the same condition as the portion of the floor where Ms. Botsford fell. Plaintiffs have not offered any explanation as to why the testing could not be performed on those unaltered portions of the flooring. Moving Party to give notice. ...

Excerpt: ... the Plaintiff need not oppose the motion and the motio Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) I burden, the burden shifts to the Plaintiff to produce evi existence of a triable issue of material fact. (Code Civ. (p)(2); Aguilar, 25 Cal.4th at pp. 850-51.) The elements of a negligence claim and a premises lia b duty of care, breach of that duty, and proximate cause v. Christian (1968) 69 Cal.2d 108.) A property owner i reasonable ca...

Excerpt: ...0 (consuming alcohol while driving) and Dawes v. Superior Court (1980) 111 Cal.App.3d 82 (swerving in and out of lanes amongst pedestrians). They collectively stand for the proposition that merely driving while intoxicated is not enough to support punitive damages, but that driving in a way which enhances an appreciable risk to others may. Here, plaintiffs allege only that defendant was impaired, as if impairment makes exposure to punitive damage...

Excerpt: ...istrator's fee is $20,000 (P's & A's at 6:26, Settlement Agreement at p. 4, proposed Order at 2:22) or $12,000 (P's & A's at 7:13, Nordrehaug declaration at 4:2). The distribution numbers do not add up. The Settlement Agreement on p. 3, in Section III(4), says the allocations to be paid from the $450,000 gross settlement amount are the $168,000 PAGA payment, $150,000 in attorneys' fees, $12,000 in attorney costs, and not to exceed $20,000 for the...

Excerpt: ... Katz Declaration and Exhibits A-I), and (3) the Agreements encompass the claims at issue here. This position is reinforced by the broad language of the Arbitration Provision, which requires the parties to “arbitrate any and all disputes or claims in any way relating to the relationship between you and us….” (See ¶¶3-12 of Katz Declaration, Exhibits A-I, §18.2). While there are no arbitration agreements signed by Plaintiffs Julie Arlotti...

Excerpt: ...very purposes, information should be regarded as “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating a settlement thereof. (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information ...

Excerpt: ...s in place of identifying information as agreed to by Plaintiff. (See Motion: 4:17- 19). Additionally, any records produced in connection with this discovery may be used only within the instant action. As to Request No. 5 which seeks pay records, the Court finds Defendant has sufficiently identified a “legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that...

Excerpt: ...vided while these motions were pending, and the responses “are now substantially compliant.” What remains at issue is thus only the requests for sanctions. Under C.C.P. § 2033.280(c), it is mandatory that the court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to RFAs necessitated the motion. Therefore, despite the apparent discourtesy in bringing these motions without first advising n...

Excerpt: ... San Mateo action is irrelevant to the core issue, the avoidance of inconsistent rulings. If plaintiffs wish to participate in discovery in the San Mateo action they could petition to intervene in that action. The court agrees with moving party that the longer the San Mateo action takes to get to trial, the greater the danger of witnesses losing recollection and documents being lost or destroyed. As before, this court is willing to permit limited...

Excerpt: ...se individual and specific orders of the Panel which sought to provide further instructions to the Receiver or sought to provide the Receiver with additional powers. The court notes that the parties are free to file ex-parte or noticed motions with this court to seek the relief provided in any of the Panel's orders which are stricken as a result of this order. Authorities The court may, upon motion of the injured party, or its own motion, correct...

Excerpt: ...atz Declaration and Exhibit A thereto), and (3) the Agreement encompasses the claims at issue here. This position is reinforced by the broad language of the Arbitration Provision, which requires the parties to “arbitrate any and all disputes or claims in any way relating to the relationship between you and us….” (See ¶3 of Katz Declaration, Exhibit A, §18.2). In opposing the Motion, Plaintiff asserts that the agreement to arbitrate is une...

Excerpt: ...f nebulous evidentiary objections, a fair sample of which appear to be meritless, the court can properly overrule, and a reviewing court ignore, all of the objections on the ground that they constitute oppression of the opposing party and an imposition on the resources of the court”. Plaintiff's Objection #24, 26-28, 38-39, 41, 58 and 61, which object to statements of direct, personal knowledge, which the court can address without having to dig...

Excerpt: ... Amended Complaint. The notice is a nullity, and plaintiffs' subsequent attempt to file that amended pleading was also a nullity. Pursuant to CCP §472(a), “a party may amend its pleading once without leave of the court … before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date ...

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

Excerpt: ...ons, Defendants' demurrer is overruled. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of ...

Excerpt: ...nt due is fixed and readily ascertainable by a standard governing a contract sued upon, and other requirements. CCP §§ 483.010, 484.090. The Application papers did not have a brief to address the statutory criteria and show how they are each satisfied. Since this is considered to be a significant remedy and subject to strict construction (see Kemp Bros. Constr., Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476; Pacific Decision Scien...

Excerpt: ... complaint. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc.(2002) 101 Cal.App.4 th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4 th 1544, 1556. Because a demurrer tests ...

Excerpt: ...y is to give notice. Plaintiff Seeks a Mandatory Injunction: “[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties. (Code Civ. Proc., § 525; Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191 [10 Cal.Rptr. 356, 358 P.2d 684]; 6 Witkin, Cal. Procedure (3d ed. *447 1985) Provision...

Excerpt: ... was negligent in the use or maintenance of the property; (3) Plaintiff was harmed; and (4) Defendant's negligence was a substantial factor in causing Plaintiff's harm. (See CACI 1000.) “Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted...

Excerpt: ...action for negligence per se is a cause of action of action for negligence, not negligence per se, and defendants acknowledge the allegations for a negligence cause of action are sufficient. The second cause of action for intentional infliction of emotional distress does not sufficiently plead facts showing that plaintiff suffered severe emotional distress. The third cause of action for negligent infliction of emotional distress is duplicative of...

Excerpt: ...esponses from a Plaintiff, which contradict the allegations of their Complaint, (see Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605), Plaintiff has sufficiently demonstrated the testimony at issue here, is reasonably subject to dispute. Consequently, judicial notice is not permissible pursuant to Evidence Code section 452(h). Plaintiff has submitted a Declaration from a geriatric psychiatrist, who testifies he �...

Excerpt: ...rrers on 2- 14-19. Therefore, the court will decide Defendant's Demurrer filed on 2-14-19 under Register of Action No. 121. The court takes off calendar Defendant's Demurrer filed on 2-14-19 under Register of Action No. 134. Defendant challenges the first cause of action (Dependent Adult Abuse) for failing to state facts sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subds. (e) and (f).) (Defendant's Notice of...

Excerpt: ...ili) opposes this motion on the merits. Therefore, the court will resolve this motion on the merits. Code of Civil Procedure section 425.16, subdivision (b), states, in part, “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special m...

Excerpt: ...f not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision (q), states, in part, “In granting or denying a motion for summary judgment or summ...

Excerpt: ...equested a stay on the execution of said judgment. The motion was granted upon counsel's admission of fault under the mandatory mea culpa provision. Defendant did thereafter answer, but has yet to participate in the discovery process. This Court has not heard from defense counsel since the new year. On 03/11/19, this Court granted plaintiff's three motions seeking initial responses to written discovery (FRogs, SRogs, RPD), and one motion seeking ...

Excerpt: ... assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Third Cause of Action (Violation Civil Code section 1793.2, subdivision (a)(3)): Plaintiff's FAC adequately alleges a cause of action for a violation of Civil Code section 179...

Excerpt: ...or causation with sufficient specificity. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [elements], 645 [specificity].) 5th-6th causes of action, fraud/negligent misrepresentation. The FAC fails to state facts sufficient to constitute these claims. It fails to allege a misrepresentation, plaintiff's reasonable reliance, or resulting damages with sufficient specificity. (See Lazar, supra, 12 Cal.4th at pp. 638, 645 [fraud]; see also Smal...

Excerpt: ...ceeding as a class superior to the alternatives. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Brinker Restaurant Corporation v. Superior Court (2012) 53 Cal.4th 1004, 1021 [internal quotes and citations omitted].) These elements ...

Excerpt: ... the forum state to justify personal jurisdiction, but the plaintiff has the right to conduct jurisdictional discovery to help develop the facts necessary to sustain this burden. (Mihlon v. Superior Court (1985) 169 Cal.App.3d 703, 710.) As Plaintiff here has requested a continuance for this purpose and may be able to discover facts to assist it in establishing jurisdiction, the requested continuance is granted to permit limited jurisdictional di...

Excerpt: ...from Plaintiff's financial institutions is constitutionally protected private financial information. On the other hand, Defendant has established that to the extent Plaintiff's ATM, bank statements or credit card statements reflect time stamps which show Plaintiff left his work premises from August 2016 to July 2017 and made meal and other purchases, that information would be directly relevant to this action because Plaintiff admittedly did not c...

Excerpt: ...ubd. (a); see Collin v CalPortland Co. (2014) 228 Cal.App.4th 582, 590.) When an interrogatory cannot be answered completely, it must be answered to the extent possible. (Code Civ. Proc., § 2030.220, subd. (b).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Here, Defendant...

Excerpt: ...” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a.) The motion is entitled “Motion to Appeal Judgment.” But, the footer for the motion states: “Motion to Set Aside.” The memorandum of points and authorities also indicates that it is in support of a motion to set aside. To the extent Plaintiff seeks to appeal the court's ruling on Defendants' motion for summary judgment, this motion is ...

Excerpt: ...ld Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party's showing has es...

Excerpt: ...default relief, or if the granting of the relief from default will not prejudice the opposing party (other than losing the advantage of the default), only slight evidence will justify an order granting such relief. (Ibid.) Code of Civil Procedure section 473, subdivision (b), permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable...

Excerpt: ...an amendment to the settlement agreement rather than any amended settlement agreement. Counsel also should provide a red-lined version of any revised papers. Plaintiff requests the dismissal of this action, but CRC Rule 3.769(h) provides that when a court approves a class action settlement, the court must make and enter judgment. This Rule suggests that in a PAGA case a Judgment should also be entered, consistent with class action settlements, an...

Excerpt: ...lement Agreement and/or proposed Class Notice is submitted, a redline version showing all changes, deletions, and additions shall be submitted as well. As to the Settlement: 1. The information provided with the motion is still insufficient for the Court to assess whether the settlement is fair, adequate and reasonable to the class, and whether Plaintiff's counsel sufficiently analyzed the value of the claims. Plaintiff's counsel filed two declara...

Excerpt: ...so should provide a red-lined version of any revised papers, including the notice to the class. The moving points and authorities are 22 pages long, far exceeding the 15-page limit of CRC Rule 3.1113(d) and even the 20-page limit of CRC Rule 3.764(c)(2) for motions to certify a class, which usually are contested. The court expressly orders that plaintiff's points and authorities in support of the Motion for Final Approval be limited to no more th...

Excerpt: ...so should provide a red-lined version of any revised papers, including the notice to the class. All such documents must have numbered pages, unlike the Addendum to Class Action Settlement filed for this hearing. In addressing Section 14.2 of the settlement agreement, which provides that the attorneys' fees award will include work done by past class counsel, plaintiff explained work done by and payment to The Cooper Law Firm, but nothing as toHaeg...

Excerpt: ...t be admitted or denied or what counts or claims are directed against it. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the basis for the claims asserted is unclear. The parties are alleged to be co-owners of the three properties identified with a 75%/25% respective interest. (Complaint ¶¶ 6-8.) Plaintiff asserts that he should be found to have more than a 75% interest due to “his contributions” (¶ 8) and Mah...

Excerpt: ... motion for nonsuit under Code of Civil Procedure section 581c or a motion for directed verdict under Code of Civil Procedure section 630 should have been granted. (Code Civ. Proc., § 629.) The purpose of a motion for JNOV is not to afford a review of the jury's deliberations, but to prevent a miscarriage of justice in a case in which the verdict rendered is without foundation. (Oakland Raiders v. Oakland- Alameda County Coliseum, Inc. (2006) 14...