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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ... 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: ...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: ...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: ... 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: ...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 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...(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: ...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: .... 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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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...

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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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...