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: ...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: ...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: ...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: ...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: ...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: ...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: ... . . . .” 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: ...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: ...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: ...he Third Amended Complaint. The demurrer is overruled and the motion to strike is denied. Pertinent Background On 09/03/14, plaintiff entered into a services and joint venture agreement with the Boy Scouts to provide rowing equipment and instruction to the public. In pertinent part: 1. Boy Scouts would register participants and collect fees; 2. Boy Scouts would take a cut, and give the net to plaintiff; 3. Plaintiff would furnish and store the re...

Excerpt: ...ust be within the “reasonable range” (i.e., within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc.(1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds amon...

Excerpt: ...ed to settle Plaintiff's claims for the amount of $3,501 plus “[t]he amount of reasonable attorneys' fees and costs incurred by Plaintiff” against that Defendant as of the date of the offer. (Emphasis added). While the court, for the reasons set forth below will not consider the merits of the motion, it does note that unlike the situation in Linton vs. County of Contra Costa (2019) 31 Cal. App. 5 th 628 at 635, Defendants' offers to pay reaso...

Excerpt: ...pport of the motion. Nonetheless, it appears to the Court that the settlement remains fair, adequate and reasonable to a class of 123 individuals in light of the result obtained, counsel's prior valuation of the claims, the average settlement payment of $2,716.51, and the results of the class notice. Provided Class Counsel confirms at or prior to the hearing that he considered the actual size of the class in determining the fairness, adequacy and...

Excerpt: ...nchbook: Civil Proceedings— Discovery (CJER 2018 update) Inspection Demands, § 19.15; see Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) However, if a response to an inspection demand is a hybrid (i.e., contains both responses and objections), the response is effective to preserve the objections even though it is unverified. Where the response contains both answer and objections, there is no need to verify that portion of the resp...

Excerpt: ...has considered plaintiff's argument, but believes that some of defendants' employees could implement the proposed new employee instructions in a way that would violate Civil Code §1747.08 (and thus also sections 1.2 and 1.3 of the Settlement Agreement). The last sentence of the last paragraph is not clear enough to be sure of a consistently proper interpretation, and must be modified to clearly instruct defendants' employees to comply with the l...

Excerpt: ... any motions seeking relief or affirmatively requesti n filed a joinder in Dr. Wong's demurrer and motion to s t Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 66 0 Additionally, the joinder is moot in light of the ruling o n to Strike and Plaintiffs' filing of a First Amended Compl a Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 11 complaint moots a motion directed to a prior complain t Defendant Matthew P. Hannon, M.D. to give notice. ...

Excerpt: ...the specificity requirem e concerning fraud are vague. When were the statement s made to both Plaintiffs? What specifically was stated? I ignored the requirement of particularity. Plaintiffs had an opportunity to amend with particularit y it is an abuse of discretion to sustain a demurrer witho u reasonable possibility that the defect can be cured by a burden is on the plaintiff to demonstrate that the trial c Plaintiff must show in what manner h...

Excerpt: .... (2006) 144 Cal.App.4 th 824, the court stated as follows with respect to a CLRA claim: “[A] claim may be stated under the CLRA in terms constituting fraudulent omissions, [however] to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” (Id. at 835). The court there found no allegations which demonstrated a duty to disclose, as “[t]...

Excerpt: ...8; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) 2. Defendant Sham's motion to strike portions of plaintiff's first amended complaint (punitive damages and attorney fees.) Motion granted in part and denied in part. The motion is granted as to the prayer for attorney fees (Page 17, Line 6) as to this moving party only. The remainder of the motion to strike is denied. Based on the ruling on the demurrer, the Firs...

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: ...14) 227 Cal.App.4th 107, 127 [elements of negligent misrepresentation]; Cadlo v. Owens- Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [“Each element in a cause of action for ... negligent misrepresentation must be factually and specifically alleged.”].) Fourth cause of action for constructive fraud – OVERRULED. The first amended complaint states sufficient facts in support of this claim. (See Civ. Code, § 1573; Assilzadeh v. California Fe...

Excerpt: ...ruling re: Defendants' demurrer to Plaintiff's Second Amended Complaint with attached February 15, 2019 Minute Order, is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a.) Business and Professions Code section...

Excerpt: ...f points and authorities may not exceed 15 pages in length (exclusive of exhibits, attachments and/or table of contents) without a prior court order. The court may properly refuse to consider memoranda that exceed this limit. (Cal. Rules of Ct., rules 3.1113(d), (e), (g), 3.1300(d).) Plaintiff's counsel filed an oversized opposition, without having first obtained a court order. The court declines to strike the oversized opposition, as requested b...

Excerpt: ...ecord. Patel's claims are subject to conflict preemption under ERISA. In Port Medical Wellness, Inc. v. Connecticut General Life Ins. Co. (2018) 24 Cal. App. 5th 153, the court summarized the ERISA preemption doctrine in the context applicable to this case: “Stated simply, these cases (and others cited therein) stand generally for the proposition that a health care provider that treats a beneficiary of a welfare benefit plan may assert a claim ...

Excerpt: ...should provide a red-lined version of any revised papers, including the notice to the class. Counsel must explain why the parties are using April 1, 2014 as the start date for both subclasses, since the pleadings used October 18, 2013 as the start date. Counsel also must explain why the parties are using October 31, 2018, rather than the date of preliminary approval or some other later date, as the end-date for the Commissions/Break Class. The se...

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: ...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: ...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: ...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: ... 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: ...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: ... 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: ... 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: ...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: ...ettlement Agreement (“Amendment”) states the “individual employee shall be eligible to receive a settlement payment without regard to whether he or she worked any minimum number of Pay Periods.” (Amendment, § III, ¶ 2.) However, the Amendment is unclear as to whether this language is replacing any language in the Settlement or being added to the existing language. If the former, Counsel needs to explain what language is being struck and...

Excerpt: ... is made in good faith, the Court must determine whether “the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries.” Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1984) 38 Cal.3d 488, 499. In making such a determination, the Court considers the following factors: (1) a rough approximation of plaintiffs' total recovery and the settlor's prop...

Excerpt: ...al date has been set and that discovery is ongoing. (Nassiri Decl. at ¶ 6.) Shapiro represents that she now believes she suffered property damage caused by Puroclean's negligence. This belief is based upon “recent” information obtained from her expert, a licensed general building contractor, who completed his professional estimate and opinion in late Nov. 2018. Accordingly, Shapiro seeks to add a second cause of action for General Negligence...

Excerpt: ....4th 365, 370.) The evident purpose of the notice requirement is to afford the [LWDA], the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge of the allegations an aggrieved employee is making and any basis for those allegations. Notice to the employer serves the purpose of allowing the employer to submit a response to the agency [citations], again thereby promoting an informed ag...

Excerpt: ...correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc. § 473(a)(1).) California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461.) This liberality only applies ...

Excerpt: ...mitted claims. “[T]rial courts [are] urged to exercise pragmatism and flexibility in dealing with class actions.” (Cartt v. Superior Court (1975) 50 Cal.App.3d 960, 970.) California courts may look to federal cases interpreting class action procedure “for guidance or where California precedent is lacking.” (Hefczyc v. Rady Children's Hospital-San Diego (2017) 17 Cal.App.5th 518, 531.) Federal “district court ha[ve] discretion to grant l...

Excerpt: ...requires a trial court to reconsider its earlier ruling if the decision materially changed the law. [Citations.] Even without a change of law, a trial court has the inherent power to reconsider its prior rulings on its own motion at any time before entry of judgment.” (State of California v. Superior Court (Flynn)(2016) 4 Cal.App.5th 94, 100; see also Code Civ. Proc., § 1008(c).) Zakaryan v. Men's Wearhouse, Inc. (2019) 33 Cal.App.5th 659 was ...

Excerpt: ...as a substantial interest in the action as a whole and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Section 36(d) states that, “[i]n its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial med...

Excerpt: ..., Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. If the moving party meets his or her burden of demonstrating “good cause,” the burden shifts to responding party to justify any objections made to the document production. See, Kirkland v. Superior Court(2002) 95 Cal.App.4th 92, 98. Plaintiff contends that these disputed requests all generally relate to records concerning the perpetrator student at issue, Cameron, wh...

Excerpt: ... the following reasons, Plaintiffs' motion is granted. Section 473(b) states that the court may “upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after th...

Excerpt: ...dered on its own merits. CRC 3.1332(c). Rule 3.1332(c)-(d) states the factors the Court should consider in evaluating whether good cause exists. Here, Defendants seek a trial continuance due to the sudden and departure of all but one member of defense counsel's litigation team. The departure of these attorneys has caused an extreme burden on the sole remaining member of Defendants' litigation team. Pursuant to the Declaration of Daniel Watts, Ste...

Excerpt: ...h cause of action [breach of contract]: Defts address only one of the alleged agreements and only the taking of Pltf's copyrighted ‘standard details'; Defts' argument and evidence do not dispose of the entire cause of action; Deny; 7 th cause of action [intentional interference with economic relations]: Pltf does not identify any specific relationship that was lost; The declaration is not enough to create a triable issue of fact that Pltf has l...

Excerpt: ... the Motion should be a motion to compel further responses under Code of Civil Procedure section 2030.300 rather than a motion under section 2030.090. Accordingly, the Motion should have been accompanied by a separate statement. (See Cal. Rules Ct., Rule 3.1345(a) [“Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement”].) No separate statement was filed. Given t...

Excerpt: ...e are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) The FAC alleges the eighth (Common Count for Services Rendered), ninth (Implied-In-Fact Contract/Unjust Enrichment), t...

Excerpt: ...facts demonstrating Experian's breach, i.e., Experian's unilateral termination of the agreements did not constitute a breach of any agreements. Specifically, according to Section 2 of the Standard Terms and Conditions, the Agreement “shall continue in effect until the termination of the expiration of all Schedules issued pursuant to this Agreement.” (FAC, Exh. A.) In turn, Section 2 of the Consumer Services Schedule states that Experian may t...

Excerpt: ...es, “(1) Except as otherwise provided in this section a contract for the sale of goods for the price of five hundred dollars ($500) or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. . . . [¶] (2) Between merchants if within a r...

Excerpt: ...equest for Judicial Notice as to Exhibit 4 pursuant to Evidence Code section 452, subdivision (d). The court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Code of Civil Procedure section 430.41, subdivision (b), states, “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall no...

Excerpt: ...f the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. [¶] (b)(1) . . . Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.” A prevailing p...

Excerpt: ...ion (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts...

Excerpt: ...ts for Judicial Notice within the meaning of Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565 and Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4 th 256, 264-267 [disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4 th 919, 939, fn. 13.]). “Code of Civil Procedure section 438, subdivision (c)(1)(B) states, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The ...

Excerpt: ...udicial notice of “Alere's Notice of Ruling on the Motion to Dismiss,” yet Exhibit F appears to be a “Request for Statement of Damages.” Moving Party to give notice. Defendant Hilton argues the action should be dismissed because of Plaintiff's failure to serve Dr. Hilton within 2 years of filing the Complaint. (Motion pp. 7-8.) The Complaint was filed on 6-22-16, naming Dr. Hilton as a defendant. (ROA 2.) Dr. Hilton was not served until 8...

Excerpt: ...287, 288, held, “We affirm the trial court's order denying Code of Civil Procedure section 473 . . . relief for plaintiffs' failure to timely file a motion to tax costs.” “The ‘failure to file a motion to tax costs constitutes a waiver of the right to object. [Citations.]' [Citation.]” (Id., at pp. 289-290.) Here, Defendant served, by mail, the Memorandum of Costs on 11- 13-18. Plaintiffs had 20 days to file their Motion to Tax Costs. (...

Excerpt: ...sition? The court ordered plaintiffs to serve their opposition and file proof of service no later than 5/7/19. (See 4/29/19 minute order and notice of ruling.) They failed to file proof of service as ordered. But they must have served their opposition because defendants reply to it. The court will proceed to the merits. Standing. Neither the SAC nor anything the court can properly notice shows on its face that plaintiff Susan Hersey lacks standin...

Excerpt: ...y duty, constructive fraud, conversion, and breach of contract, Defendant chose to demur to these claims. Plaintiff pointed out in opposition that Defendant was not a party to these claims, based on Complaint. The Court overrules the Demurrer to these causes of action because these claims are not brought against this Defendant. A. Dissolution Defendant argues that insufficient facts are alleged to state a claim. The Court disagrees. Any sharehold...

Excerpt: ...ruled as to the fifth cause of action. As a result of the Court's ruling on the demurrer, Defendants' motion to strike is moot. Fourth Cause of Action for Negligent Infliction of Emotional Distress Courts analyze this claim under a direct victim theory vs. a bystander. In their opposition, Plaintiffs claim to be asserting to be both direct victims and bystanders – at least at to Paredes and Cannon – to Melody's injury. In direct victim cases,...

Excerpt: ...pany, Inc. v. Mach-1 Autogroup (G048082, Apr. 3, 2015,) [nonpub. opn.].) “An unqualified reversal remands the cause for a new trial [citation], and places the parties in the trial court in the same position as if the cause had never been tried, with the exception that the opinion of the court on appeal must be followed so far as applicable.” (Central Sav. Bank of Oakland v. Lake (1927) 201 Cal. 438, 443.) Cross-defendants' concerns about whet...

Excerpt: ...le and serve their proposed Cross- Complaint no later than May 30 2019. It appears the proposed Cross-Complaint is related to the City's complaint in this action. Even if the cross-complaint were not compulsory, however, the Court would grant leave pursuant to the liberal policy regarding the filing of cross-complaints. See Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (Rutter 2010) § 6:557. Ordinarily, the court will not consider the ...

Excerpt: ...le and serve their proposed Cross- Complaint no later than May 30 2019. It appears the proposed Cross-Complaint is related to the City's complaint in this action. Even if the cross-complaint were not compulsory, however, the Court would grant leave pursuant to the liberal policy regarding the filing of cross-complaints. See Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (Rutter 2010) § 6:557. Ordinarily, the court will not consider the ...

Excerpt: ...(b).) They fail to show excusable neglect. (See Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399; Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, 286-287.) The vague assertions continue to lack credibility. (Compare 1/2/19 minute order with Swan decl. at 10:23-11:4.) Defendants fail to show the judgment is void. (See Code Civ. Proc. §473, subd. (d).) Motion for Relief from Admi...

Excerpt: ...mination of the rights of the parties in an action or proceeding.” Plaintiff has not shown that the 3/28/2019 judgment is not final. The 3/28/2019 disposed of the entire action as to all parties. Pursuant to CCP section 1294, subdivision d, Plaintiff “may appeal from…[a] judgment entered pursuant to this title.” The judgment was entered pursuant to CCP section 1287.4, after the Court granted the motion to confirm the arbitration award. Pl...

Excerpt: ....App.3d 516, 528-530 [disapproved on other grounds in Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 557 & fn. 8].) Defendant, however, fails to demonstrate that all of the documents sought e.g., communication regarding Plaintiff's employment application, promotions or demotions, employment contract, performance evaluations, status of employment and/or absence or tardiness records, are directly relevant to a cause of action or d...

Excerpt: ...t paid in settlement; (3) the allocation of settle m (4) the recognition that a settlor should pay less in set t found liable after a trial; (5) the financial conditions an settling Defendants; (6) the existence of collusion, fra u injure the interests of nonsettling Defendants. (Tech-B i most important factor is the settling party's proportion a Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1350 . the settlor's potential liability to the Plaint...

Excerpt: ...inute order.) That limited information seemed sufficient to allow plaintiffs to determine whether the tire met the industry standard. The court allowed defendant to respond to the reply declaration of plaintiff's expert, who had opined the industry standard is 100% halobutyl. In the new declaration, defendant's expert opines the industry standard is not 100% halobutyl. The specific percentage of halobutyl has thus become relevant, necessary, and ...

Excerpt: ... typographical error or makes a minor, unsubstantial change. See Viriyapanthu v. State of CA (C.D. Cal., Oct. 26, 2018) 2018 WL 6136148, at *1 (striking portion of Notice of Errata because “proposed changes do not correct merely typographical errors”); Vigers v. Emergency Services Restoration, Inc. (C.D. Cal., June 21, 2018) 2018 WL 6930885, at *3 (“As the Ninth Circuit has held, carelessness does not form the basis of relief. Moreover, des...

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

Excerpt: ...le and serve their proposed Cross- Complaint no later than May 30 2019. It appears the proposed Cross-Complaint is related to the City's complaint in this action. Even if the cross-complaint were not compulsory, however, the Court would grant leave pursuant to the liberal policy regarding the filing of cross-complaints. See Weil & Brown, Cal. Prac. Guide, Civ. Proc. Before Trial (Rutter 2010) § 6:557. Ordinarily, the court will not consider the ...

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: ...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: ... 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...

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: ...laintiff did not file a meet and confer declaration with his motion nor does his motion otherwise reflect any attempt to resolve the issues presented by the motion informally before Plaintiff filed it. A motion to compel further responses to interrogatories must also be accompanied by a separate statement in support of the motion. Cal. R. Ct. 3.1345. Plaintiff did not file a separate statement in support of his motion. As a result, the court cann...

Excerpt: ...on exists. (Code Civ. Proc., § 437c, subds. (o)(1), (2), (p)(2).) To demonstrate the elements of a cause of action cannot be established, the employer may show the employee does not possess evidence needed to support a prima facie case and also cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) The employer may also, but need not, present evidence conclusively negating an element of the ...

Excerpt: ...e not in the format required by California Rule of Court 3.1354(b). The objections are in narrative form and are not consecutively numbered. The court disregards them. Merits: In order to shift the burden on summary adjudication, the cross- defendants must show “that one or more elements of the cause[s] of action…cannot be established, or that there is a complete defense to the cause[s] of action.” See Code Civ. Proc. §437c(p)(2). The moti...

Excerpt: ...ars later plaintiff alleged an inability to work based on unrelenting, work-related back pain. A dispute arose, leading to the pending civil action for breach of contract, wage/hour violations, and unfair competition. On 04/02/14 (augmented on 05/07/15), this Court signed a stipulated agreement between the parties to submit the dispute to arbitration. The selected arbitrator was John McCauley, Esq. The dispute was heard over several days. A final...

Excerpt: ... his alleged breach of contractual obligations by “misusing confidential information in violation of his legal duties” to Plaintiff. (Compl. at ¶ 3.) Defendant's alleged wrongdoing resulted in Plaintiff losing “at least one deal,” and put Plaintiff at risk “of losing further deals.” (Compl. at ¶ 4.) Although the Plaintiff framed the alleged breaches under the 2018 Offer Letter between the parties, the Court finds that the alleged br...

Excerpt: ...“if it determines that an agreement to arbitrate the controversy exists, unless it determines that” certain circumstances are present, such as waiver of the right to arbitrate, or the presence of third parties in the lawsuit. The petition is to allege “the existence of a written agreement to arbitrate the controversy,” and also that the other party “refuses to arbitrate such controversy.” In addition, pursuant to California Rule of Co...

Excerpt: ...ement may be enforced here over the former client's objection, only if a copy was timely provided to the client and the agreement applies to the representation here at issue. Plaintiff contends that he was not timely provided with a copy of the agreement. (See Glickman Decl. filed with Opp.) Defendants respond that a copy was provided on the day the agreement was signed. (Krolikowski Decl.¶¶ 4-6.) But even if Defendants' claim is credited, the ...

Excerpt: ... for 12/14/18. Defendants Pacific Los Alisos, LLC; Elaine Voechting; and Ben Lopez contend that Lakin and Shaver are current employees of defendant Pacific Los Alisos, LLC and therefore represented by counsel for Pacific Los Alisos, LLC. Lakin is a service technician and Shaver is the assistant community director of the subject property. Defendants further contend that upon notification from Lakin and Shaver as to the receipt of the deposition su...

Excerpt: ...rning their home contact information. See County of Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal.4th 905, 927 (“home contact information is generally considered private” and employees “have a legally protected privacy interest in their home addresses and telephone numbers”). On the other hand, Plaintiff insists he does not intend to initiate improper communication with these employee witnesses (see Cal. R. Ct. R...

Excerpt: ...sponse to these requests Defendant responded by stating that: “After a reasonable and diligent search, Defendant is unable to comply with the request as it is informed and believes that it no longer has documents responsive to this request because they were no longer in existence at the time the original discovery request was made.” Pursuant to California Code of Civil Procedure § 2031.230, a representation of inability to comply shall “sp...

Excerpt: ... but not limited to any sewer studies, environmental impact reports, drainage studies, site plans, bridge/culvert designs, grading/utility plans, wetland impacts, tentative maps, and landscaping plans.” Plaintiff argues that the documents requested by Request No. 7 are relevant because the issue of entitlements and permits is part of one of the contracts, Auburn Modification Memorandum, at issue in this lawsuit. Specifically, Plaintiff contends...

Excerpt: ... is granted. Due to Plaintiff's failure to serve a response to the interrogatory, Plaintiff has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product . . . .” Cal. Civ. Proc. Code § 2030.290(a). Plaintiff shall provide a response, without objections, to Defendant's Supplemental Special Inter...

Excerpt: ...t. It is not clear exactly what is being sought as the notice of motion is to compel responses. However, in combing through all of the documents, it appears that what Plaintiff is actually seeking is an order compelling further responses and Defendant's production of certain documents. CRC, Rule 3.1110(a) states that a “notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the ...

Excerpt: ...s a modification of the court's 1/17/19 order. “[A] motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under Code of Civil Procedure section 1008. (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 9:324.1, p. 9(I)–124 (rev. # 1, 2011).)” Powell v. County of Orange (2011) 197 Cal. App. 4 th 1573, 1577. When proper grounds are presented, a court ...

Excerpt: ...other policies limiting discoverability. [See, for example, Code Civ. Proc., § 2017.010 (privilege), Code Civ. Proc., § 1985.3 (consumer's right to privacy)]. In addition, deposition subpoenas may be attacked as unjustly burdensome and oppressive. [Code Civ. Proc., § 1987.1]. Plaintiff argues in Opposition that it just wants bank records relating to deposits and disbursements of funds in Sub-Account 900118 only. Thus, Plaintiff agrees to withd...

Excerpt: ... Murphy & King, P.C. (“M&K”) are DENIED in part. The first subpoena was issued on 11/12/18 and sought a deposition on 12/11/18 on three topics: A. Design and specification information for each variation of an implant bridge made and sold by Nobel or Nobel Biocare Procera LLC from inception to December 1998 and between May 2002 and January 2013 B. Design, manufacture, and sale of the implant bridges or their predecessors pursuant to six patent...

Excerpt: ... waiver by the commissioner as to matters that are not covered claims, be stayed for 60 days from the date that an order of liquidation or an order of receivership with a finding of insolvency has been entered by a superior court in this state or by a court in the state of domicile of the insurer, and an additional time thereafter as may be determined necessary by the court to permit proper defense or conduct of all pending causes of action by th...

Excerpt: ...dant breached its duty of care to the plaintiff by failing to use reasonable care in caring for him, failing to use reasonable care in the selection and maintenance of its staff, and failing to ensure the competency of its staff, thereby causing or contributing to the incident. (Complaint, ¶ 32.) Moving hospital submits the expert declaration of Alan C. Wittgrove, M.D., who is a board-certified surgeon and attests that he reviewed all of the rel...