Excerpt: ...h the court finds acceptable), in which case defendant must provide supplemental responses to #2 and 4 within 90 days only for employees who do not respond that they do not want their information shared, and must provide a supplemental response to #3 within 90 days only for employees who respond that they intend to contest their alleged obligation to arbitrate this dispute. The supplemental responses will be pursuant to a protective order whereby...

Excerpt: ...ed case has gone forward, and if its outcome affects this case. In the case of In re Anna S. (2010) 180 Cal. App. 4th 1489, the court held: “The effect of an unqualified reversal (‘the judgment is reversed') is to vacate the judgment, and to leave the case at large for further proceedings as if it had never been tried, and as if no judgment had ever been rendered. Generally an unqualified reversal has the effect of remanding the case for a ne...

Excerpt: ...aims except for claims under Bus. & Prof. Code § 17200. Defendants have proven the existence of the arbitration agreements (“Agreements”) between them and the Signing Plaintiffs entered into in early 2018. Stokke Decl., Exs. A through F; Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal. 4th 951, 972, as modified (July 30, 1997). Plaintiffs have failed to show that the Agreements were either procedurally or substantively unconscionable, bo...

Excerpt: ...” Plaintiff claims he would be unduly prejudiced should the court order the case to arbitration as he has incurred over $77,000 in attorney fees to date. However, that fact alone is insufficient to find prejudice where the party opposing arbitration shows only that it incurred court costs and legal expenses. Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 CA4th 436, 451- 452. Although the cost sharing provision implied in the arbitration ag...

Excerpt: ... of Appeal's decision in LaMelza et al. v. Lindsay et al., G057421. The stay applies to all disputes stemming from Plaintiffs' claim to the subject bond portfolio as “creditors” of Robert Gilroy under the UVTA and Plaintiffs' allegation that Gilroy's transfer of the Bond Portfolio to SME was a fraudulent transfer and is voidable under the UVTA. The stay extends to all claims of priority by FFB and SME to the Bond Portfolio, and also extends t...

Excerpt: ...g any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. C.C.P. § 2017.010. “The court shall limit the scope of discovery if it determines that the . . . intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to th...

Excerpt: ...ons of the pleading are not evidence for this purpose. (Nobel Floral, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 657; In re Automobile Antitrust Cases I & II (2005) 135 Cal.App.4th 100, 110) It must be shown that it is appropriate to exercise personal jurisdiction over each defendant on an individual basis. (See Calder v. Jones (1984) 465 U.S. 783, 790) General Jurisdiction Only a limited set of affiliations with a forum will render a defendant a...

Excerpt: ...oofs service documents.”Inversion e Personal Jurisdiction: “Whe by a preponderance of the evi d affidavits and authenticated d o 1233. Purposeful Availment: “Th e entity under state substantive separate person or entity to e n “Instead of focusing on the qu protections of California law t o relating to its products.” As Y o “[T]he effects test requires a s conduct would cause harm in t Novus contracted with Holy S m companies. There i...

Excerpt: ...nd for relief under Code of Civil Procedure section 663. (See Code Civ. Proc., § 663; County of Alameda v. Carleson (1971) 5 Cal.3d 730, 738; Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302; see also Garibotti v. Hinkle(2015) 243 Cal.App.4th 470, 477.) Error Nos. 2 and 5. The “uncontroverted” facts do not establish that FCI was denied a fundamentally fair hearing. The evidence before the court shows FCI h...

Excerpt: ...er than two weeks before the next hearing date. Counsel should submit an amendment to the settlement agreement rather than any amended settlement agreement. Counsel also should provide a red-lined version of any revised papers, including the notice to the class. The settlement agreement and Workweek Dispute Form provide that the Administrator will resolve any workweek disputes. The documents should instead reflect that the court will resolve any ...

Excerpt: ...otion for Judgment on the Pleadings, filed on 11-26-18, is GRANTED. The court notes that the operative pleading in this action is Plaintiff's Second Amended Complaint, filed on 10-12-17. Code of Civil Procedure section 438, subdivision (c)(1)(B), states in part, “If the moving party is a defendant, that either of the following conditions exist: [¶] (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint...

Excerpt: ...ril 9, 2019. Consistent with this Court's April 26, 2019 order, the Court converts Defendant's motion for summary adjudication of the contract claims (i.e. the First, Fourth and Fifth Causes of Action) to a motion for judgment on the pleadings and GRANTS the same with 7 days leave to amend as to Plaintiffs T-12 and HRG to permit these Plaintiffs to allege third-party beneficiary status in connection with the applicable subcontract. The Court DENI...

Excerpt: ...or violation of Labor Code §226(a) and Business & Professions Code §17200 based on the theory that paystubs provided by Defendant to putative class members during the class period failed to include Defendant's legal name “Mitchell International, Inc.” In all other respects, the motion is DENIED. The class is defined as follows: All current and former hourly-paid or non-exempt employees who worked for Mitchell International, Inc., within the...

Excerpt: ...s raised by both the motion and the demurrer. Both motions, therefore, constitute improper filings because they violate this Court's stay which was lifted for the limited purpose of permitting motions that did not implicate class action allegations. Motion for Summary Judgment The Motion for Summary Judgment is denied. Defendant moves for summary judgment of this action comprising a single cause of action, contending that Plaintiff Lily Chiang, w...

Excerpt: ...ion for violation of Penal Code § 496. At most, Plaintiff has alleged that Orange Coast breached its duties of care as an escrow company to Plaintiff's assignor. Plaintiff has not alleged Orange Coast knowingly received, withheld or concealed any stolen property, or knowingly aided in the conduct prohibited by Penal Code § 496 as required to state a claim under this provision. (See Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal....

Excerpt: ...s denied. Patch's Request for Judicial Notice is granted. Patch must file an Answer within 10 days. NVSI now adequately alleges misrepresentations of fact by Patch and how a representation of fact by Patch was false. NVSI also now adequately alleges the unjust enrichment of Patch. NVSI sufficiently alleges facts that would constitute fraud, malice or oppression, including despicable conduct, as defined in Civil Code §3294, potentially justifying...

Excerpt: ...ction for intentional infliction of emotional distress: This cause of action fails as plaintiff has not alleged sufficient facts showing intentionally outrageous conduct on the part of these moving party defendants. Further, plaintiff has not alleged sufficient facts showing he suffered severe emotional distress. Fourth cause of action for fraudulent concealment: This cause of action fails as the allegations are not alleged with the required spec...

Excerpt: ... Paul Martin's settlement of $15,001—a total of $640,001 in approved settlements. This ruling addresses only the proposed settlements by Nico Designs, Inc. (paying $155,000), Bahrami (contributing $5,000 to Nico Design's settlement amount of $155,000), Safarpour (paying nothing) and MPH Construction (paying nothing). “The party seeking a determination of good faith may file a ‘bare bones' motion, stating the grounds on which the determinati...

Excerpt: ...tantial prejudice will result if the requested relief is granted. The Opposition asserts that there is insufficient time for Plaintiff to conduct additional discovery on this issue, but fails to identify any specific discovery that would be needed. The Motion is therefore granted. However, MP cannot simply withdraw the response – an amended response must be provided. The Court will allow MP to serve an amended verified response to RFA 16 within...

Excerpt: ...ounds. Summary Judgment The defendant does not appear to meet its initial burden because it does not address one of the bases for the complaint; i.e., that the defendant did not advisethe plaintiff of his legal options as to the right to seek damages for breach of contract. Where does the defendant even deny this allegation? The motion argues instead that the defendant's filing of an amended complaint that includes a cause of action for breach of...

Excerpt: ... it is unopposed. “A plaintiff … has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff … has met that burden, the burden shifts to the defendant … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Pro...

Excerpt: ...he following reasons, Defendants' demurrer is sustained with leave to amend. 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....

Excerpt: ...sue is directly relevant to their claim that this suit was brought in bad faith, the business judgment rule defense, and compliance with a non-compete provision in the Partnership Agreement. But how Plaintiffs' other investments over the past 25 years have performed does not appear to have any bearing on whether this action was brought in good faith or has merit. Plaintiffs' other investments are also irrelevant to whether the business judgment r...

Excerpt: ...n 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 Court heard the motion for summary judgment on February 7, 2019, and took it under submission. In so doing, the Court invited the parties to file supplemental briefing, limited to five pages, which addressed specif...

Excerpt: ... numbered copy of the amended pleading, the motion itself does not state what allegations are being deleted or added by page, paragraph and line number. Id. at subd.(a). While counsel submits a declaration under subdivision (b), and that declaration states the effect of the amendment, it does not state why the amendment is necessary and proper. Neither does it identify when the facts giving rise to the amendment were discovered nor the reason for...

Excerpt: ...rty-two days before the May 20, 2019 trial date. The court granted Defendants' ex parte application to advance the hearing on this motion to enable it to be heard before trial. The court's order granting Defendants' ex parte application states that the May 20, 2019 trial date remains, as does the court's order following the parties' unsuccessful Mandatory Settlement Conference. See 04/19/19 Order & 04/26/19 Order. A motion for judgment on the ple...

Excerpt: ...ortfeasors. Cal. Code Civ. Proc. § 877.6(c). When the good faith basis for the settlement is contested, the moving party must make a sufficient showing of the Tech-Bilt factors. That showing may be made either in the original moving papers or in counter declarations filed after the non-settling defendants have filed oppositions challenging the good faith settlement. City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262. A part...

Excerpt: ...ff incurred $165,619.00 in attorneys' fees, Muse-Fisher Supp. Decl. ¶¶ 5, 6, 7 & 8, and that the invoices reflecting the fees incurred are attached to the Muse-Fisher Supplemental Declaration as Exhibits A and B. This order addresses only the amount of fees to be awarded. All other issues raised by Plaintiff's motion were addressed in the court's April 18, 2019 order, which should be read together with this order. On August 30, 2018, the court ...

Excerpt: ... facts are alleged. Demurrer to Cross-Complaint The demurrer of cross-defendants Summerset Mobile Estates and Mobile Modular Development, Inc., to the First Amended Cross-Complaint is SUSTAINED as to First Cause of Action, and OVERRULED as to the Second, Third, Fourth, Fifth, and Eighth Causes of Action with ten days leave to amend. Motion to Strike/Demurrer The motion of cross-defendant Deborah Fernandez to strike the First Amended Cross-Complai...

Excerpt: ... naming Jian Guo as the Doe 1 masseuse. Doe 1 is referenced numerous times throughout the operative first amended complaint and there are factual allegations against Doe 1 as the masseuse who allegedly assaulted the plaintiff. On 12/7/18 the plaintiff filed a Doe Amendment naming demurring defendant Massage Envy Franchising, LLC as Doe 2. The first amended complaint fails to make any allegations against Doe 2 generally or specifically. Doe 2 is n...

Excerpt: ... motion. At the hearing on this motion the parties submitted to the tentative ruling and that tentative became the final ruling of the Court. Prior to the hearing, at 12:29 p.m. on 11/8/18, the Saldivar Defendants filed their cross- complaint. Ms. Rodriguez contends the Cross-Complaint is untimely because it was prematurely filed. However, Ms. Rodriguez fails to assert any prejudice that she has incurred as a result of the prematurely filed cross...

Excerpt: .... v. Superior Court (2008) 159 Cal. App. 4th 273, 286 (citing Cal. Civ. Proc. Code § 367). Standing is a threshold issue. Id. The Third Amended Complaint contains 3 causes of action. They are: Breach of promissory note; money lent; and complaint to set aside fraudulent transfer. In order to establish a contract, Plaintiff must establish that she is either a party to the contract or that she has standing for some other reason. Pursuant to the Not...

Excerpt: ...ourt 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. Berryman v. Merit Prop. Mgmt., I...

Excerpt: ...pt 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. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152...

Excerpt: ...l from introducing evidence regarding any bodily injuries, medical provider(s), medical treatment(s) or other damages related thereto that Plaintiff has not disclosed in discovery as of the date of this order. For the following reasons, Defendant's motion is granted in part and denied in part. The court issued an order on November 15, 2018 directing Plaintiff Susan Firooz to provide complete and responsive further responses to Form Interrogatory ...

Excerpt: ...d Defendant with Oppositions to the motion for judgment on the pleadings and motion to strike. But the Court notes that Plaintiff has not filed the Oppositions with the Court. On or about 5/13/2019, the Court received courtesy copies of Plaintiff's Oppositions which were read and considered. Whether A Non-Attorney May Represent Estate Defendant Hospital argues that a person may not practice law in California without a license (Bus. & Prof. Code 6...

Excerpt: ...oduction of information neither relevant nor reasonably calculated to lead to the production of admissible evidence. RFP No. 6 is not limited to the type of policy at issue in this lawsuit. Thus, the request would extend to the claims handling and procedures for other types of policies that are irrelevant here, e.g. auto insurance RFP Nos. 24 and 29 are not limited in time. Further, as to No. 29, Plaintiff has not made a fact specific showing of ...

Excerpt: ...s “[t]at there is no reasonable possibility that the prosecution of the cause of action alleged in the complaint against the moving party will benefit the limited liability company or its members.” (Corp. Code, § 17709.02(b)(1) [emphasis added].) “The burden of establishing the statutory condition is on the party moving for security.” (Burt v. Irvine Co. (1965) 237 Cal.App.2d 828, 868.) The trial court has “broad discretion … to dete...

Excerpt: ... are deemed as complex. (Code Civ. Proc., § 404; California Rules of Court, rule 3.502.) The actions involve a significant number of parties, witnesses and documents. Trial will likely exceed 20 days. And both actions involve securities claims and investments. (California Rules of Court, rule 3.400(b) and (c).) Coordination of the actions will promote the ends of justice. Both actions have substantial overlap of factual and legal issues. Given t...

Excerpt: ... 146–148 Plaintiff has not met its “substantial burden” of showing that the forum selection clause is unfair, unreasonable, or violates California public policy. Ibid. Because this is a mandatory forum selection clause, the Court does not undertake the forum non-conveniens analysis. Ibid. Had it done so, however, the evidence presented here is insufficient on its face to establish that Arizona venue is improper in any respect. There is no s...

Excerpt: ... posted within 30 days – if not posted, case was to be dismissed; Pltf now argues for the first time that her ability to pay was not considered; This argument was not raised or supported, nor was a motion for reconsideration brought; Grant [note: Summary Judgment motion tentatively granted above.] Terminating Sanctions Once a party is ordered by the court to provide responses to discovery, continued failure to respond may result in the impositi...

Excerpt: ...s party is OVERRULED. “[A] suspended corporation may not prosecute or defend an action in a California court.” (See Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4 th 1361, 1365). First, while the allegations in the Complaint continuously reference bankruptcy proceedings, suggesting a potential jurisdictional problem or issues of standing, the Court has been provided with insufficient information, by which to determine whether any claim i...

Excerpt: ...med abandonment of the issue].) The Court notes that the FAC is uncertain in that it alleges the “separate oral agreement” involved “a building, a business, and other assets” (FAC ¶¶ 4, 8); yet, it also alleges that “Debbie and Melinda realized that the sale of the business and other assets was separate, apart, and additional to the sale of the building” (FAC ¶9B). Moreover, Plaintiff alleges in her Opposition that the “separate ...

Excerpt: ...he case of Langley v. Schumacker (1956) 46 Cal.2d 601, 297 P.2d 977, and the Legislature's response to it, demonstrates that the tort labels of fraud and deceit are by themselves irrelevant. Courts must look to the substanceof the lawsuit.” (Id., at p. 954; Italics in Askew.) Askew explains, “If there is anything clear from the swift reaction to Langley, it is that the fact of false representations, even fraudulent representations, is not eno...

Excerpt: ...by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” Weddington Productions, Inc. v. Flick (Weddington) (1998) 60 Cal.App.4 th 793, 809-810, states, “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit. [Citations.] The judgment in the instant case specifica...

Excerpt: ...l 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 directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any...

Excerpt: ...ited any legal authority holding Code of Civil Procedure section 2025.610 precludes a “new party” or a party who is newly named in a different capacity from taking the deposition of other parties in a pending action. Further, even assuming arguendo Code of Civil Proceduresection 2025.610 applied, BONILLA established good cause for a “second” deposition of LILLY since BONILLA as a plaintiff, has different legal theories against LILLY. The ...

Excerpt: ...he 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 (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or ...

Excerpt: ...ely 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 (f)(1), provides, in part, “A party may move for summary adjudication as to one or more causes o...

Excerpt: ...e unwilling to get involved in this lawsuit or open up a probate in the Orange County Superior Court,” and that Moving Counsel does “. . . not have the authority to settle, dismiss, or try this case without some direction from a client or court appointed figure.” (Safion Supp. Decl., ¶¶ 29 and 34.) At this stage of the proceedings, the court does not that there is good cause Moving Counsel's withdrawal. Moving Counsel's Supplemental Decla...

Excerpt: ... special motion to strike and are thus entitled to their reasonable attorney fees and costs pursuant to Code of Civil Procedure section 425.16(c). Defendants seek an hourly rate of $425 for their counsel. The Motion is supported by the Declaration of Blut who states his normal and customary hourly rate is $425.00. (See Blut Decl., ¶ 2.) The declaration, however, fails to set forth counsel's level of experience and fails to set forth any evidence...

Excerpt: ...ng, and concealing funds. (See Cross-compl. ¶¶ 10-12.) The filing of the cross-complaint was just “the means of communicating that action or decision” or “evidence of that action or decision.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060; accord Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1275-1276 [complaint based on termination of tenancy, not unlawful detainer action].) Cross-defenda...

Excerpt: ... any documents in their possession, custody, or control that refer to the privileged emails. Plaintiff is barred from using or disseminating the privileged emails or any information obtained thereby. David L. Brault shall reimburse defendant for reasonable attorney fees and costs incurred with this motion. (See Code Civ. Proc., § 2023.010, subd. (c).) Defendant may file and serve an attorney fee declaration no later than 5/24/19. Attorney Brault...

Excerpt: ... (See Willis v. City of Los Angeles (9th Cir. 2000) 57 Fed. Appx. 283, 289.) The U.S. District Court has already dismissed the § 1983 claim with prejudice. And the alleged conduct is protected by qualified immunity. (See Gov. Code, § 815.2; see also Via v. City of Fairfield (E.D. Cal. 2011) 833 F.Supp.2d 1189, 1195.) Plaintiff fails to meet her burden to show any reasonable possibility of curing the defects by amendment. (See Blank v. Kirwan (1...

Excerpt: ...cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) And the Demurrer has merit. COAs 2-4 assert essentially identical claims for fraud, intentional misrepresentation, and negligent misrepresentation. But every element of a fraud claim must be alleged in full, factually and specifically. General and conclusory allegations do not suffice. (Lazar v....

Excerpt: ...n, conversion. The FAC fails to state facts sufficient to constitute this claim. “‘To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property.'” (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222.) Or as plaintiffs correctly note, conversion requires only “the intent to ...

Excerpt: ... Cal.3d 780, 795; Piccinini v. California Emergency Management Agency (2014) 226 Cal.App.4th 685, 688.) Plaintiff has failed to do so here. To state a disparate treatment claim, Plaintiff must allege facts to show that he was subjected to an adverse employment action and that his protected status “was a substantial motivating reason” for same. (See CACI 2500, and Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) The complaint must p...

Excerpt: ...es that defendants were aware of clearly material information contained in the preliminary title report for the property and the home inspection report, and not only failed to disclose said information to plaintiffs, but pressured plaintiffs to follow through with the purchase. 1st COA – Fraudulent Concealment The title report is alleged to have shown the existence of a Code Enforcement action against the property as well as a lis pendens. Firs...

Excerpt: ...he Motion to Strike punitive damages as to the first cause of action. The MTS is moot as to the remainder of the claims. The Court grants Michael's unopposed Request for Judicial Notice pursuant to Evidence Code §452(d). 1. Breach of Fiduciary Duty In this new Cross-Complaint, Mark first alleges that his brother, Michael, breached his fiduciary duty to him when he shredded Mark's mail notifying him about various tax issues, with the result that ...

Excerpt: ...nt's motion to strike is therefore moot. Sham Pleading The “sham pleading” doctrine provides that a party will be bound by a prior, unfavorable allegation absent a satisfactory explanation for the change. See Hahn v. Mirda (2007) 147 Cal. App. 4 th 740, 751; State ex rel Metz v. CCC Information Services, Inc. (2007) 149 Cal. App. 4 th 402, 412. Generally, after an amended pleading has been filed, courts will disregard the original pleading. B...

Excerpt: ...lation are generally disregarded. (See WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 410.) In the next round of pleading, Plaintiff should give attention to setting forth a set of concrete facts to support each of the causes of action. Demurrers are sustained to the 1 st cause of action for quiet title. This is a statutory a...

Excerpt: ...c). Under this provision, any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees. Ketchum v. Moses (2001) 24 Cal. 4 th1122, 1131. The attorney's fees awarded must be reasonable. Ketchum v. Moses, supra, 24 Cal. 4 th at 1133. It is such defendant's burden of proof to show the fees it incurred and that the fees were reasonably incurred. Christian Research Institute v. Alno, supra, 165 Cal. App. 4 th at 1...

Excerpt: ...sary 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. Civil Code section 1717(a) provides that: “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is deter...

Excerpt: ...127; see also Def. Opp. SSUF ¶ 25; Pl. Opp. SSUF ¶¶ 6, 9, 19-21.) George Murai's deposition and declaration are not so flatly contradictory that the declaration is inadmissible. These discrepancies go the weight of his testimony. Plaintiff's request for judicial notice is granted. The court will “take notice of [the document's] existence and contents, though not of disputed or disputable facts stated therein.” (Yvanova v. New Century Mortg...

Excerpt: ...wers Admitted as to Brenda Watson 9. Motion to Deem Answers Admitted as to Chase Knight 10. Motion to Deem Answers Admitted as to Georgina Knight Motion to Compel Responses from Plaintiff Chase Knight to Form Interrogatories, Set Two: Failure to timely respond to interrogatories results in a waiver of any objections to the requests. CCP §§ 2030.290(a). If a party to whom interrogatories were directed fails to serve a timely response, the propou...

Excerpt: ... the Request for Production of Documents, Set One, and agreed to produce supplemental documents pursuant to a protective order. (Livedalen Decl., ¶ 5, Ex. C.) Plaintiff does not dispute that Defendant served Supplemental Responses to Plaintiff's Request for Production of Documents, Set One on 04/12/19, but contends that the motion is not moot because several of the Supplemental Responses are still deficient. To the extent, Plaintiff contends the...

Excerpt: .../retention, and negligent failure to warn, train or educate. Defendants allegedly allowed an assistant baseball coach, defendant Carlos Sales, Jr., to sexually abuse and harass the plaintiff minors. The instant discovery dispute concerns SAUSD's responses to moving Plaintiff's first set of requests for production of documents, Nos. 6 and 40. With respect to inadequate responses to a request for production, the Code provides for a motion and order...

Excerpt: ...large the issues in the case; and (3) the reasons for intervention outweigh any opposition by the existing parties. Whether the interest is sufficiently “direct” and “substantial” must be decided on the facts of each case, with a liberal construction in favor of intervention. CCP § 387(a); Gray v. Begley (2010) 182 Cal.App.4 th 1509, 1521; City & County of San Francisco v. State of Calif. (2005) 128 Cal.App.4 th1030, 1037. Permissive int...

Excerpt: ...as due 4/30/19. (See Cal. Rules of Court, rule 3.1300(d).) Even if the court did consider the untimely opposition, plaintiff fails to show defendant's “‘affiliations with [California] are so “continuous and systematic” as to render it essentially at home'” here – for example, that California is defendant's “place of incorporation and principal place of business” – thereby subjecting defendant to general jurisdiction. (Daimler AG...

Excerpt: ... justifying the exercise of jurisdiction by a preponderance of evidence. (Strasner v. Touchstone Wireless Repair & Logistics, LP (2016) 5 Cal.App.5th 215, 221–222.) The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. (Id.) Parsons argues that jurisdiction cannot be found here, as his role was mere...

Excerpt: ...Superior Court (1988) 67 CalApp4th 1253, 1255 ("In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing entitlement to such relief must be pled by a plaintiff."). Malice in particular can be inferred by a trier of fact from the surrounding circumstances. Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 67; The Nippon Credit Bank v. 1333 North Cal. Boulevard (2001) 86 Cal.App.4th 486, 502-3; ...

Excerpt: ... in granting leave to amend: the parties may instead test its legal sufficiency by demurrer, motion, or other appropriate proceedings. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) This Motion is therefore granted – but without prejudice to any future motions defendants wish to file as to the merits of the proposed new claims. Plaintiffs may file their Second Amended Complaint in substantially the form proposed with...

Excerpt: ..., very minimal, and Trilogy was often dismissed from construction defect suits for waiver of costs or with payment of very little money. But Navigators directed its attorneys to avoid vigorously defending Trilogy and to try to use money Trilogy would have to reimburse to resolve claims. This created circumstances where other law firms Navigators selected were subject to conflicts of interest, often receiving conflicting instructions from their cl...

Excerpt: ..., it expressly prohibits such death knell responses: “if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.” §575.2(b). In addition, although plaintiff's counsel cited the wrong subsection, CCP §473 does provide a vehicle for having this voidable order set aside. Counsel cites to sub...

Excerpt: ...erged into a single proceeding and result in only one judgment. (Hamilton v. Asbestos Corp., Ltd.(2000) 22 Cal.4th 1127, 1147-1148 [in consolidation for all purposes, two actions are merged into a single proceeding and result in only one judgment]; Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 1053 [“Consolidation, as a procedural matter, converts two cases into one action.”]; Bridewell-Sledge v. Blue Cross of California (9th Cir. 2015) 79...

Excerpt: ...oc., § 473(d) [emphasis added].) A Judgment may be void a for a number of reasons, including lack of personal jurisdiction over the Defendant. When a Defendant challenges the Court's personal jurisdiction on the ground of improper service of process the burden is on Plaintiff to prove the facts requisite to an effective service. (See Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Code of Civil Procedure section 415.20(b) sets forth the ...

Excerpt: ...ith attempt at personal service, an individual Defendant may be substitute serve by: (1) leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box; (2) in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing addr...

Excerpt: ... o r 500.) The most important factor is the settling party's proportionat e consider not only the settlor's potential liability to the Plaintiff, but a Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4 t The burden of proof is on the party opposing the good faith determi good faith determination. Also relevant is the likelihood that the set amount includes consideration of the possibility that the Plaintiff wil recover at trial. (...

Excerpt: ...3, 2018 (ROA 167). Four weeks later, the attorneys for the parties (but not the parties themselves) stipulated to class-wide arbitration based on the representation that most of the putative class members had signed arbitration agreements. The stipulation (ROA 170) provided for arbitration of all “disputes arising from or related to the facts pleaded in the Complaint,” and gave no indication that the role of the arbitrator would be to approve...

Excerpt: ...as sufficient here. Code of Civil Procedure section 2025.480 provides in relevant part: “If a deponent fails to answer any question or to produce any document . . . that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (Code Civ. Proc., § 2025.480, subd. (a).) Furthermore, “[i]f the court determines that the answer or productio...

Excerpt: ... 163 Cal.App.4th 896, 902; Oldcastle Precast, Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 577.) In addition, Plaintiff came forward with evidence showing that Defendant received the benefit of years of misapplied loan payments, of Plaintiff's payment of the property taxes and insurance, and of Plaintiff's refund of loan escrow funds, which the Defendant was not entitled to. At the time of the final accounting of their dealings, D...

Excerpt: ...itted, a redline version showing all changes, deletions and additions shall be submitted as well. As to the Settlement: 1. The proposed Class Definition contained in Article I, subsection c, of the Settlement Agreement and ¶17 of the First Amended Complaint, references security guards or individuals in a “functionally equivalent position.” The Class Notice is directed to, and defines the Class as, only security guards. Please confirm that th...

Excerpt: ..., very minimal, and Trilogy was often dismissed from construction defect suits for waiver of costs or with payment of very little money. But Navigators directed its attorneys to avoid vigorously defending Trilogy and to try to use money Trilogy would have to reimburse to resolve claims. This created circumstances where other law firms Navigators selected were subject to conflicts of interest, often receiving conflicting instructions from their cl...

Excerpt: ... a new trial based on inadequate damages. (Code Civ. Proc., § 657, subd. (5).) However, “[a] new trial shall not be granted . . . upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.) When the court determines ...

Excerpt: ...the factual issue of whether the clothing Nike required its employees to wear constitutes a uniform or whether it was suitable for everyday wear and therefore a fringe benefit under federal law. Defendants' arguments and authority are based on Nike legally withholding taxes from its employees, rather than a situation where withholding was not legally authorized. Plaintiff arguably may seek restitution from Nike for the taxes employees had to pay ...

Excerpt: ... the court.” On January 4, 2019, the Court sustained in part and overruled in part Defendant's demurrer to Plaintiffs' initial complaint. Plaintiffs were granted 15 days leave to amend. The parties waived notice, as noted in the minute order for the hearing. Plaintiffs' deadline to file the FAC was January 22, 2019. (Code Civ. Proc., § 472b.) Plaintiffs filed the FAC on January 23, 2019 -- one day late. Plaintiffs' counsel indicate they failed...

Excerpt: ... arbitration appears to have been pursued against “Larkin.” The Award is against Larkin. The fact that this may have been a mistake may be immaterial to the Court's determination. Arguably any correction in the final award must be made by the arbitrator, which may then be confirmed by the Court. Without a valid reason for correction and without consistent paperwork the only thing this Court may do is confirm the award as written. CCP §1286.2...

Excerpt: ...this regard, the Separate Statement is an important document and a difficult one to prepare correctly. (See Civ Proc. Before Trial ¶ 10:94.1 (Rutter Group 2018).) A court may quickly determine if a summary disposition can be granted by seeing if any material fact is in dispute and may not dispose of the Issue, where there is a proper dispute regarding any supporting material fact. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 2...

Excerpt: ...e Court to sustain their demurrers to the Sixth Cause of Action for violation of 42 U.S.C. §1983, the Seventh Cause of Action for tortious interference with contract, the Eighth Cause of Action for quiet title, the Tenth Cause of Action for intentional infliction of emotional distress, the Eleventh Cause of Action for negligent infliction of emotional distress, and the Twelfth Cause of Action for declaratory relief. On 01/24/19, the Court sustai...

Excerpt: ...cause of action for breach of the implied warranty of habitability is a contractual cause of action. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 928-929. Plaintiffs do not dispute that the breach of implied warranty of habitability cause of action is a contractual cause of action, but contend that paragraph 20 of the FAC sufficiently evidences a contractual agreement. Paragraph 20 of the FAC alleges: “On or about October of 2016 . . . new ...

Excerpt: ... Trust Amendment and so must be addressed – if at all - in the Probate Court. However, COA 1 asserts a financial elder abuse claim. A financial elder abuse claim differs from a probate action, and W&I Code §15610.30(c) specifically permits a claim for financial elder abuse where an elder “is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest...” A COA for financial elder abuse may...

Excerpt: ...ate a cause of action citing Ferraro v. Camarlinghi (2008) 161 Cal.App.4 th 509, 528 [02/07/19 Minute Order] In denying the Motion to Strike, the court indicated: “Ferraro says it all. A general demurrer should have been filed. There is no basis for granting a motion to strike.” The court did not “invite” County to file a demurrer. And, the court couldn't invite a Demurrer if it had wanted to as it was already too late to file one after t...

Excerpt: ...econd order addressing these issues. The court incorporates its prior detailed order here and will not repeat the relevant factual background. See 01/24/19 Order. For all privileges other than the official information privilege, the identity-of-informer privilege, the trade secret privilege, and the attorney work product privilege, the court may not require disclosure of information claimed to be privileged to rule on whether the claim is valid. ...

Excerpt: ...oid unnecessary costs or delay.” (Code Civ. Proc., § 1048(a).) Consolidation is “a matter committed to the sound discretion of the trial judge.” (Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.) Neither Waterfront nor Davis/Reed has established sufficient common questions of fact or law. The plaintiffs in the 24 actions (the “Waterfront Actions”) sought to be consolidated all provided different goods and/or services at the hotel p...

Excerpt: ...gatories (Set Two), and Special Interrogatories (Set Three). California Civil Procedure Code § 2023.030(d)(4) states that the court may impose a terminating sanction by means of, inter alia, an order rendering a judgment by default. Disobeying a court order to provide discovery is a misuse of the discovery process. Cal. Civ. Proc. Code § 2023.010(g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516. A trial court should consider both the...

Excerpt: ...mmary adjudication. The court will hear from counsel. 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 so long as there is no prejudice to the opposing party. Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564. If the party seek...

Excerpt: ...tion 387 should be liberally construed in favor of intervention.” (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1200.) Intervention is mandatory upon timely application if “[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect ...

Excerpt: ...ing the verdict and appears to be irrelevant here. The court GRANTS the motion for the reasons set forth below. A. Surprise and Newly Discovered Evidence In his motion, Plaintiff makes a prima facie showing that he was surprised at trial because although Defendant had admitted liability during discovery, on the first day of trial she suddenly recanted and contested liability. (CCP 657 (3).) Plaintiff also argues that this constituted newly discov...

Excerpt: ...lemental expert witness list on 3/26/19, but Plaintiff does not want Yates to be limited to giving rebuttal testimony. In the alternative, Plaintiff Williams asks the court for leave to augment his expert witness list to belatedly designate Joseph Yates as an expert witness. (CCP 2034.610; 2034.620.) The court DENIES the motion for the reasons set forth below. Statement of Facts Defendant MICHAEL KEITH MAGNELL represents that he has always made i...

Excerpt: ...ud because there is no triable issue that Nationstar made a false statement that Plaintiff relied upon, and Plaintiff has no damages. Further, Nationstar does not owe Plaintiff a fiduciary duty; (2) Plaintiff cannot prevail on his cause of action for violation of the Fair Debt Collection Practices Act because he released Nationstar of all liability as to these claims in a prior settlement agreement, he has failed to allege any actionable conduct,...