Excerpt: ...ecton 2923.5 Civil Code section 2923.5 precludes a trustee or mortgage servicer from recording a notice of default until 30 days after the loan servicer has made initial contact with the borrower to assess the borrower's financial situation and explore options for avoiding foreclosures, or has satisfied the due diligence requirements of the statute. (Civ. Code, S 2923.5, subd. (a)(l).) Due diligence requires sending a letter by first class mail, ...

Excerpt: ...ies outside the administrative agency s jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the agency is incapable of granting an adequate remedy, and when resort to the administrative process would be futile"); see also Am. Pet. at pp. 8:28-9:28.) Second, "a demurrer must be overruled if the moving party has alleged facts entitling him to some form of relief." (Woods v. Superior Court (1981) 28 Cal.3d 6...

Excerpt: ...vered the alleged defects with the vehicle's transmission. (See Code Civ. Proc. S 338, subd. (d).) "[Wlhen the relevant facts are not clear such that the cause of achon might be, but is not necessarily, time-barred, the demurrer will be overruled." (Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420.) he FAC adequately alleges a basis for imposing a duty to disclose — defendant's sole knowledge of the transmission defect...

Excerpt: ...exception of the word "duty," the defendant has not clearly stated precisely what cause of action, affirmative defense, or claim for damages it seeks to completely dispose of in the "issues" themselves as required by Code of Civil Procedure section 437c, subdivision (f)(l). Accordingly, the court declines to address the motion for summary adjudication of issues. As to the motion for summary judgment, there is only one cause of action pled in the ...

Excerpt: ...ecause the Cross-complaint does not attach the contract as an exhibit, set forth the material terms of the contract verbatim, or allege the legal effect of the contract. Responding Party does not dispute that a copy of the written contract that forms the basis of the first cause of action is not attached to the Cross-complaint, and the relevant terms are not set out verbatim. Instead, Respond-ng Party argues that the Cross-complaint sufficiently ...

Excerpt: ... Code of Civil Procedure section 430.41, subdivision (a) requires that prior to filing a demurrer, "the demurring party .... meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer ... ." Similarly, prior to filing a motion to strike, "the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike ... ." (Code Civ. P...

Excerpt: ...the original Complaint on the same grounds asserted here. The Court held that the Complaint failed to allege any alter ego theory of liability against Abboud and that the fifth and sixth causes of action failed because the allegations showed nothing more than the failure to perform a contractual obligation. (ROA 29.) Plaintiff was granted 20 days leave to amend and timely filed the FAC on August 30, 2023. (ROA 33.) Defendants now raise the same a...

Excerpt: ...audulent transfer and 5th cause of action for promissory estoppel/unjust enrichment are also MOOT, given the ruling on these defendants' motion to strike, discussed further below. Defendant Sheybani's demurrer to the 1st, 2nd, and 3rd causes of action are OVERRULED. The court takes judicial notice on its own motion of plaintiff's original complaint and attached exhibits. (Evid. Code, S 452, subd. (d) [court records].) 1st cause of action: breach ...

Excerpt: ...ght to payment due or to become due, in rents, refunds, commissions, etc., from all entities and individuals, including but not limited to Belmont Asset Solutions, LLC ("Belmont"), and for an order restraining Defendant Yuri from encumbering, disposing etc. his rights to payment thereunder. "Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the judgment debtor to assign to the ju...

Excerpt: ...s"], it is undisputed that the same dealer that sold the vehicle to Plaintiff also provided the warranty service at issue here. (UF 1, 6.) The evidence thus establishes that service facilities were available that were "reasonably close" to where the vehicle was sold. For COA 8 ["Failure to Make Service Literature and Parts Available"], it appears undisputed that the same dealer performed warranty work on Plaintiff's vehicle (UF 7; ROA 131 Ex. D) ...

Excerpt: ...the suffciency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings...

Excerpt: ...835,000.00 after completion of the LTRMN/UMBRLA transaction, breach of the obligation to give notice of the closing of the LTRMN/UMBRLA transaction, and by disparaging plaintiff in violation of section 10 of the separation agreement. Defendants only provide evidence that the term of the separation agreement did not require them to make the $835,000.00 payment, and fail to address the other two breaches that may require them to pay damages, and th...

Excerpt: ...136 Cal.App.4th 1110, 1122.) under the FAA, the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Management, LLC (9th Cir. 2016) 656 Fed.Appx. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or "the rights of parties to enforce an arbitration agreement...

Excerpt: ...mate decision to deny the Moton does not necessarily rely upon any point or authority raised in Defendant's filing. Plaintiff will be afforded an opportunity to respond to any argument raised in the Opposition at the hearing on the Mohon. Plaintiff's Meet and Confer Efforts A moton to compel further responses to a Request for Production of Documents "shall be accompanied by a meet and confer declaration under Section 2016.040." (Cal. Code Civ. Pr...

Excerpt: ...iscovery has not been completed and cannot be completed on the newly added parties before the current trial date of 01/29/24. Plaintiff also contends that additional factors favor a contnuance including the following: the proximity of the current trial date; no prior requests for a contnuance made by any party; no reasonable alternative solution to ensure judicial economy; prejudice to Plaintiff if it is not allowed this continuance and an Page 8...

Excerpt: ...iously complete construction. Plaintiff's request for judicial notice is granted as to Exs. A, B, Q, and R. Evid. Code S452(c), (h). The request is unnecessary as to the remaining exhibits. "The substantive issues inwlved in a contempt proceeding are (1) the rendition of a valid order, (2) actual knowledge of the order, (3) ability to comply, and (4) willful disobedience. (Weil & Brown, supra, pars. 9:337—9:340.)" Conn v. Superior Court (1987) ...

Excerpt: ...n over defendant); Pavlovich v. Superior Court (2002) 29 Cal. 4th 262, 273.) Validity of Service Plaintiff has failed to establish that substituted service to George Hong or HJC America, Inc. is effective as to Moving Party. Plaintiff's argument that service was made to Moving Party's 'general manager' in California is not well taken. It is possible for service upon a wholly owned subsidiary or a contractor of a foreign entity defendant could be ...

Excerpt: ...all not be awarded fees and costs unless the court finds the achon was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." Accordingly, the court must determine if the plaintiff's lawsuit was frivolous, unreasonable, or groundless. "Despite its discretionary language, however, the statute applies only if the plaintiffs lawsuit is deemed unreasonable, frivolous, meritless, or vex...

Excerpt: ...laintiff was clearly the prevailing party and is entitled to its costs of suit against Crew Salon, Inc. Novation is a defense here. Although defendants now wish to avoid that characterization, the testimony from the defendants was clear. Of course, if the defendants want to deny that a novation was properly alleged, then the judgment should be amended to state it is against the Gaglios in their individual capacity. The court reporter fees are cle...

Excerpt: ...ty trimmed to a height not to exceed that of the wall and the Court will retain jurisdiction to enforce the height limitations placed on Defendant's shrubs. As an initial matter, the Court notes Defendant's proof of service showing the notice and moving papers were served by email on Plaintiff Kevin Mueller ("Plaintiff") and Defendant's proof of service for Defendant's reply did not include the server's email address. (Code Civ. Proc., S 1013b, s...

Excerpt: ... only for the purpose of establishing that these documents were filed with the probate court, not for the truth of the matters asserted therein. The request is DENIED as to Exhibit 2 because Exhibit 2 appears to be an incomplete document. CCP S 356.2 and Cal. Prob. Code S 9000, et seq. Defendant argues that section 366.2 sets forth the statute of limitations on Plaintiff's claims. Plaintiff contends that Plaintiff's claims are timely, as Plaintif...

Excerpt: ...press or implied, of the parties...."].) Relevant here, If the district attorney or commissioner does not proceed with the action, and the person bringing the action conducts the action, the court may award to the defendant its reasonable attornevs fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the achon was clearly frivolous, clearly vexatious, or brought primarily for purposes...

Excerpt: ...were served by Plaintiffs on June 12, 2023. (See Motion at 3:4-5; J. Young Decl. '1 8, Exh. Three [06/12/23 Notices of Depositionl.) On November 20, 2023, Plaintiffs propounded a new Notice of Taking Deposition on Defendants Hong Chen, Monica Yu Wang, Jing (Amy) Song, Wen Chen, and Elaine Huang. (J. Young Decl. 29, Exh. Seven [11/20/23 Notices of Depositionl.) Jennifer Young declares that Plaintiffs took out all the items that Defendants' counsel...

Excerpt: ...were submitted in connection with a discovery motion, namely, Plaintiff's motion to compel further responses to fts 8th and 11th sets of requests for production of documents. [ROA # 802] They were not submitted "as a basis for adjudication," which "embraces discovery materials submitted in support of and in opposition to substantive pretrial motions, regardless of the ground on which the trial court ultimately rules." (Overstock.com, Inc. v. Gold...

Excerpt: ...rected waives any right to exercise the option to produce writings under Secton 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Secton (b) The party propounding the interrogatories may move for an order compelling response to the interrogatories." Here, Plaintiff has shown that he propounded Special Interrogatories, Set Two on Defend...

Excerpt: ...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.4th 445, 459.) "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc. S 452.) Second Cause of Acton — Breach of Contract Plaintiff alleges ...

Excerpt: ...ses compulsory cross-complaints, provides: "A party who fails to plead a cause of action, subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross- complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be ju...

Excerpt: ...ties should merely reference pleadings already filed in this matter by ROA number, rather than re-filing such documents as exhibits. Legal Standard Code of Civil Procedure section 527(a) states, "A preliminary injunction may be granted at any time before judgment upon a verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in the other, show satisfactorily that sufficient grounds exist therefor. No preliminary...

Excerpt: ...and is irrelevant. The objection to Exhibit B is OVERRULED. Merits Defendant's first argument is that Plaintiff's Complaint fails to plead sufficient facts in support of her cause of action. As Plaintiff points out, this argument is not well-suited for a motion for summary judgment and should have been brought as a motion for judgment on the pleadings or a demurrer. Thus, the motion based on any insufficiency of the pleadings is DENIED. Defendant...

Excerpt: ...Upon examination, Defendant Vanek found that Plaintiff s teeth numbers 1, 16, 17, and 32, the teeth known as "3rd molars" or "wisdom teeth", each had periodontal pockets in the unhealthy range charted by Defendant Vanek during Ms. Fox's May 4 visit. (UMF No. 1, 3). Thereafter, on May 9, 2022, Defendant Sharobiem, apparently in the same office as Dr. Vanek, performed the surgical extracton of teeth numbers 1, 16, 17, and 32. (UME No. 7) The proble...

Excerpt: ...a The Ranch Scottish Highland Burgers, Rebecca Cupp, and Shad Cupp. The motion was filed on October 30, 2023 and served electronically on former defense counsel on October 26, 2023. A party may move for summary judgment in an action or proceeding if it is contended that the achon has no merit or that there is no defense to the action or proceeding. Code Civ. Proc. S 437c(a)(1). The motion may be made at any time after 50 days have elapsed since t...

Excerpt: ..., it has never been registered to do business in California, nor ever had any offices in California, it has no employees in California, and it does not advertise in California. Plaintiffs' request for judicial notice as to Exhibit 1 is GRANTED. (Evid. Code, S 452(d).) As an initial matter, the parties dispute whether OHI's motion is timely. Plaintiffs contend the deadline to file was September 8. On July 26, 2023, counsel for Plaintiffs stated th...

Excerpt: ...ing party bears the burden of proving the existence of an applicable agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (CAA) ["The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense"]; See also Ashbey v. Archstone P...

Excerpt: ..., 2023, the court granted the motion to compel and ordered Mrs. Whitworth's depositon to go forward on July 18, 2023. (ROA 308, 301.) On July 18, 2023, Mrs. Whitworth appeared for her deposition, but after what appears to have been a deliberate attempt to obstruct the process, and three instances of instructing the witness not to answer, Ford opted to adjourn the deposition and file the subject motion. Code of Civil Procedure section 2025.460(e) ...

Excerpt: ...pel Further Responses to Special Interrogatories 9. Motion to Compel Further Responses to Special Interrogatories 10. Motion to Compel Further Responses to Special Interrogatories 11. Motion to Compel Further Responses to Special Interrogatories 12. Motion to Compel Further Responses to Special Interrogatories 13. Moton to Compel Further Responses to Special Interrogatories Defendants, Tam-Ky Pho-Do and Toa-Thanh Tay Ninh's (Defendants) Motions t...

Excerpt: ...1987.1 states, in part, "(a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order q...

Excerpt: ...Causes of Acton 1-5 are subject to a motion to strike as they are not drawn in conformity with the laws of the state of California, and are not proper or relevant. Plaintiffs first cause of action is for wrongful terminaton in violation of public policy, and it is undisputed that there is no requirement to exhaust administrative remedies before bringing a cause of action for wrongful discharge in violation of public policy. (Medix Ambulance Servi...

Excerpt: ...o show they were not reasonable or necessary. (Fairbank, et al., Cal Prac. Guide: Civ. Trials & Evid. (The Rutter Group 2023) 917:526, citing Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774-776; Bender v. County of Los Angeles (2013) 217 cal.App.4th 968, 989; and Jones v. Dumrichob (1998) 63 cal.App.4th 1258, 1266 [mere statements in memorandum of points and authorities and declaration of counsel insufficient to rebut prima f...

Excerpt: ...l Dr. Shoghian's Deposition This unopposed motion is GRANTED. The District served Dr. Shoghian with a deposition subpoena requiring her to appear for deposition and produce documents. The District attempted to coordinate dates with Dr. Shoghian, but she refused to provide dates or otherwise appear. She was served with copies of the moving papers and all other documents relating to this motion, but has not responded in any way or otherwise made an...

Excerpt: ...staffng agency, entered into a Managed Services Agreement ("MSA") with PSG, a national temporary staffing agency. According to the MSA, World operated "as a marketing and client services agent of PSG for all temporary staffng business generated by the assignment of laborers from an Agency location." Pursuant to the MSA, World would perform certain activites for laborers working at Client Companies and PSG would perform other activities, including...

Excerpt: ... Conference to discuss the status of Kouyoumjian v. Reganyan and the stay in this action. Defendant Tina Reganyan's Request for Judicial Notice is GRANTED. (See Evid. Code, S 452, subd. (d).) Plaintiff John Doe's evidentiary objections to the Declaration of Defendant Tina Reganyan are OVERRULED as to evidentiary objection numbers 1 and 2, and SUSTAINED as to evidentiary objection numbers 3 and 4. Defendant Tina Reganyan (Defendant Reganyan) moves...

Excerpt: ...ge the time for answer or demurrer." Code of Civil Procedure S 473(a)(1). "The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code." Code Civ. Proc. S 473(a)(1). Additionally, any judge, at any time before or after commencement of trial, ...

Excerpt: ... in the complaint are admitted for purposes of the motion, and the court determines whether those facts constitute a cause of action. The court also may consider matters subject to judicial notice"" (Harris v. Grimes (2002) 104 Cal.App.4th 180, 185.) The complaint alleges defendant violated the California Voting Rights Act by diluting the votes of Latino residents through unlawful at-large elections in November 2020 and 2022. (See Compl. "1 1, 3....

Excerpt: ...an anti-SLAPP motion to strike as follows. Section 425.16, subdivision requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance osf the [defendant]'s right of petition or fre...

Excerpt: ... 39 Cal.3d 311, 318.) Defendant demurs to the fourth cause of action for fraudulent inducement/concealment, arguing the FAC fails to allege any pre- or post- transacton communications, knowledge of the defects, or intent to induce reliance. Further, Defendant argues that absent a fiduciary relationship between the parties, a duty to disclose only arises where (1) the defendant had exclusive knowledge of the material fact; (2) the defendant active...

Excerpt: ...ing the demurrer in part with leave to amend, the Court deems the motion to strike MOOT. Statute of Limitatons In ruling on a general demurrer based on statute of limitations grounds, the running of the statute must appear "clearly and affirmative y" from the face of the complaint. It is not enough that the complaint might be time-barred. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Stueve Bros...

Excerpt: ...y be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) It is not an abuse of discretion to sustain a demurrer without leave to amend if there is no reasonable possibility that the defect can be cured by amendment. (See Jenkins v. County of Orange (1989) 212 Cal.App.3d 278.) As a preliminary matter, Defend...

Excerpt: ...ions will not lie where the action may be, but is not necessarily, barred. In order for the bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2009) 29 Cal 4 th 769, 781... )" Committee for Green Foothills v. Santa Clara Board of Supervisors (2010) 4...

Excerpt: ...owners of the subject real property, and (2) plaintiff Amber Allen (then Amber Booth), as trustee of the Paseo Viento Trust. (4AC 19-21, 60.) To be clear, plaintiff as trustee was the buyer, not the trust. A trust is not itself a legal entity; legal title to property owned/being purchased by a trust is held by the trustee. (See Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293; see also Portico Management Group, LLC v. Harrison (2011) 202 Cal...

Excerpt: ...n lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Secton 416.10, 416.20, 416.30, 21 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post offce box, with the person who is apparently in ...

Excerpt: ...at ROA No. 346; see also Code Civ. Proc., S 425.16, subd. (e)(4).) Prong two, first cause of action for libel. Plaintiffs have failed to demonstrate their first cause of action for libel has minimal merit. (See Baral v. Schnitt (2016) 1 Cal.5th 375, 396 (Baral) [burden; on second prong, "the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally suffcient and factually substantiated"]; Bill...

Excerpt: ...Christian (1968) 69 cal.2d 108.) The duty to warn of or remove a dangerous condition of property created by a third party arises only when the landowner had actual or constructve knowledge, or by ordinary investigation should know, of the dangerous condition. (Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806); see also Ortega v. Kmart Corp. (2001) 25 Cal.4th 1200, 1206 (Ortega).) California courts have also repeatedly held that landowners are ...

Excerpt: ...mmary judgment is directed to the issues framed by the pleadings. As such, the burden of a defendant moving for summary judgment only requires that the defendant negate a plaintiffs theories of liability as alleged in the complaint. Leyva v Garcia (2018) 20 Cal. App. 5th 1095, 1102. The defendant may meet the burden of showing that an essential element of the plaintiffs claim cannot be established by presenting evidence that the plaintiff "does n...

Excerpt: ...t is a misuse of the discovery process. Pursuant to section 2023.010(g), misuse of the discovery process includes the disobeying of a court order to respond to discovery. The failure to comply must be willful. R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Vallbona v. springer (1996) 43 cal.App.4th 1525, 1545; Biles v. Exxon Mobil corp. (2004) 124 cal.App.4th 1315, 1327. Here, on 01-30-2023, the Court ordered Defenda...

Excerpt: ...the hearing. As the hearing is 1/8/2024, the reply papers are late. Code of Civil Procedure 12c. Similarly, Santa Mix's Response (ROA 388) to plaintff's statement of undisputed facts was filed on 01/4/2024 at 10:43 AM. In addition to being late, the summary judgment statute does not provide for a Reply Separate Statement, nor are exhibits and evidence in support of reply papers generally allowed. Nazir v. United Airlines, Inc. (2009) 178 Cal. App...

Excerpt: ... of $209,000 was reached at a mediation on 11/11/22. Although Medina had been invited to attend and had recently filed her answer, Medina opted to not participate in the mediation. (Dorr Decl. 912) The settlement agreement is attached to Dorr's declaration and states that it is "expressly conditioned on court approval of Petitions for Minor's Compromise." (Exh. 1, 913) Section 877.6 allows a settling defendant or cross-defendant to obtain a deter...

Excerpt: ...nst plaintiff Yneges based on a rejected Civ. Proc. Code S 998 offer Defendant served on Yneges on 08/19/21. This is the only 998 offer presented into evidence on this motion. Civ. Proc. Code S 998 in relevant part states: "(c)(l) If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from t...

Excerpt: ... CareRx, LLC's Form Interrogatories — General, Set One on or before January 19, 2024. Defendant VNA of Greater LA is ORDERED to serve full, complete, and verified responses to Plaintiff CareRx, LLC's to Plaintiff CareRx, LLC's Form Interrogatories — General, Set One on or before January 19, 2024. Defendant VNA of Orange County LLC is ORDERED to serve full, complete, and verified responses to Plaintiff CareRx, LLC's to Plaintiff CareRx, LLC's ...

Excerpt: ...leged in the complaint. Leyva v Garcia (2018) 20 Cal. App. 5th 1095, 1102. The defendant may meet the burden of showing that an essential element of the plaintiffs claim cannot be established by presenting evidence that the plaintiff "does not possess and cannot reasonably obtain, needed evidence." Lona v Citibank, N.A. (2011) 202 Cal. App. 4th 89, 110. Only after a defendant meets that burden, does the burden shift to the plaintiff to produce ad...

Excerpt: ...-2022. California Rules of Court, rule 3.1700(b)(1).) The Court finds this motion to be timely based on Defendant Elizabeth Torres' refiling of the Memorandum of Costs on 05-03-2023. CCP S 998 Reasonableness: Plaintiff contends Defendant's 998 offer was not reasonable because it was made only two months after Defendant answered the Complaint and before any discovery had commenced. "It is the general rule that where a party shows a prima facie ent...

Excerpt: ...proper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Furthermore, "[tlhe grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (Code Civ. Proc. S 437, subd. (a).) Plaintiff's Punitive Damages Allegations and P...

Excerpt: ...otice of ruling. Plaintiff Anthony J. Ortiz's Motion to Compel Further Responses and Responses Under Oath [Form Interrogatories] is GRANTED in part and DENIED in part. Defendant General Motors LLC is ORDERED to serve full, complete, and verified responses and Plaintiff Anthony J. Ortiz's Special Interrogatories, Set One, Numbers 1-6, 23-24, 30-31, 33, and 36 within 30 days of the notice of ruling. Plaintiff Anthony J. Ortiz moves to compel Defend...

Excerpt: ...), Set Two, filed by Mr. Gorla. 80th motons are GRANTED IN PART as discussed below. Motion 1 Pursuant to Code Civ. Proc. S 2025.290(a), the court shall allow additional time for deposition, beyond the seven-hour limit imposed by this section, "if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination." The Court finds Cross-Defendants have shown good cause for a furthe...

Excerpt: ...verified response within 15 days; Request #8: Defendant responded that no such document exists; This is sufficient response; Deny; Request #12, 17-19, 22, and 26: Request is impermissibly overbroad; Deny; Request #31: Plaintiff did not show good caused for this request; Deny; Request #32: Plaintiff showed good cause for this request; Defendant did not justify its objections to this request; Grant; Defendant to serve a supplemental verified respon...

Excerpt: ...s to Requests for Production Civil Procedure Code section 2031.210 requires that: The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to ...

Excerpt: ...e petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party "to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute." (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molinari (2005) 132 Cal.App.4t...

Excerpt: ...ourt will exercise its discretion to consider the opposition, but admonishes Plaintiff to abide by court rules for all future filings. Plaintiff does not dispute the Federal Arbitration Act (FAA, 9 U.S.C. S 1, et seq.) applies here. Under the FAA, the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Managemen...

Excerpt: ...onses without objections to Requests for Production, Form Interrogatories and Special Interrogatories, Sets One and to pay sanctions in the total amount of $1,800 to Defendant. Terminating Sanctions Defendant contends Plaintiff must be subject to terminating sanctions because she has "repeatedly and willfully abused the discovery process" by failing to respond to OCTA's discovery and failing to comply with the Court's 09-18-2023 order. 12 Disobey...

Excerpt: ...ern Mutual — Breach of Employment Contract Pursuant to California Labor Code section 2922, employment in California which has no specified term may be terminated at the will of either the employee or the employer. This means that "at any time without cause, for any or no reason, and subject to no procedure except the statutory requirement of notice" either party may terminate the employment relationship. (Guz v. Bechtel National, Inc. (2000) 24...

Excerpt: ...pear within the "four corners" of the pleading — which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer "admit[s] all the properly pleaded material facts" and "even the most improbable alleged facts" are accepted as true. (Nolte v. Cedars-Sinai Medical Center (2...

Excerpt: ...tached as Exhibit A to the FAC, executed by Plaintiff and other parties, with a blank signature line for Defendant. Exhibit 4 to Defendant's request for judicial notice includes the Tolling Agreement with Defendant's signature. Plaintiff's FAC alleges Defendant, acting on behalf of VBI, engaged in misconduct related to a construction project between September 2013 and September 2015, after which Plaintiff initiated a request for AAA mediation. (F...

Excerpt: ... from those terms contained in written and oral communications with Defendant Valencia on 10/15/2018. (SAC 26- 27.) The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) On 3/10/2023, the court sustained NAF's demurre...

Excerpt: ...rotective order that Defendant filed "to delay" the discovery, contending the motions were untimely and frivolous. (Mot. Memorandum of Points and Authorities ["MPA"], at pp. 11-16 [ROA 781.) The Law on Discovery Sanctions "A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought." (Code Civ. Proc., S 2023.040.) For issue or evid...

Excerpt: ... brought to trial pursuant to CCP section 583.310. (ROA 236). Concurrently, the Court entered a separate Joint Stipulation and Order to further continue the hearing on the Mohon for Preliminary Approval. (ROA 238). On June 2, 2023, the parties filed a Status Conference Statement wherein they stated that "the Parties do not have a fully executed amended agreement and are still waiting on certain information necessary to provide the high and low fi...

Excerpt: ...bd. (a)(l).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code of Civ. Proc., S 473, subd. Additionally, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may ...

Excerpt: ...6.) 1. Aggrieved Employees Definition: "All employees who worked for Toshiba in California during the PAGA Period and who received one or more wage statements during the PAGA Period." [Settlement, 1.4.] 2. PAGA Period: "The period from June 24, 2020 through July 28, 2021." [ld., '1 1.19.] 3. Number of Aggrieved Employees: 419 employees who worked a total of 11,893 PAGA Pay Periods. [ld., '1 4.1.] 4. Gross Settlement Amount: $100,000.00 [ld., 3.1....

Excerpt: ... Counsel also should provide a red-lined version of any revised papers, including the class notice. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the class notice, rather than with just a supplemental declaration or brief that simply asserts the issues have been resolved. The allocation of only 20% of the settlement payments for...

Excerpt: ...ndment to the settlement agreement rather than any amended settlement agreement. Counsel also should provide a redlined version of any revised papers, including the class notice. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any correctons to the settlement agreement and the class notice, rather than with just a supplemental declaration or brief that simply asserts the issues...

Excerpt: ... fully executed "Class and Representative Acton Settlement Agreement and Release of Claims" is attached as Exhibit 1 to the Declaration of Brian J. St. John. (ROA 170, Declaration of Brian J. St. John ("Counsel Decl.").) Class Definition: All current and former non-exempt employees of Defendant who performed work for Defendant in the State of California during the Settlement Period who have not signed an arbitration agreement with class waiver. [...

Excerpt: ...im STAYED pending completion of the arbitration. An arbitration review conference will take place on September 30, 2024 at 8:30 a.m. in Department CX-IOI. Plaintiff's objections to the Declaration of Salah Ali are OVERRULED except for objection no. 1 which is SUSTAINED. Defendants' initial request for judicial notice is DENIED as these rulings are not relevant. Defendants' supplemental request for judicial notice is GRANTED. 1. BACKGROUND Plainti...

Excerpt: ...: This is a putative wage-and-hour class action. On July 7, 2023, Plaintiff Madison Vollmar, individually and on behalf of others similarly situated ("Plaintiff"), filed a Complaint against Defendants Partners Capital Group, Inc. ("PCG") and Mark Davin ("Davin") (collectively, "Defendants"). (ROA 2.) The Complaint alleges the following eight causes of action: 1. Violation of Labor Code SS 510 and 1198 (Unpaid Overtime); 2. Violation of Labor Code...

Excerpt: ..., and CHOC through its joinder, technically have brought the wrong motion. It is undisputed Plaintiff previously appeared for deposition in this action in February 2022, and at that time Western Pump and CHOC asked all questions they had of Plaintiff before stating they have no further questions. As such, the deposition was completed. "Once any party has taken the deposition of any natural person, including that of a party to the action, neither ...

Excerpt: ... may move to compel further responses to interrogatories on the grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under Code of Civil Procedure secton 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., S 2030.300, subd. (a).) A motion to compel further responses to interroga...

Excerpt: ...ts a pleading, motion, or similar paper to the court, the person filing the paper makes an implied "certification" that: (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (2) The claims . . and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of exist...

Excerpt: ...riminal remedies for the alleged contempt. To the extent, Plaintiff is requesting criminal remedies, the request is denied pursuant to Section 1385 of the Penal Code. It makes little sense to proceed with what was traditionally considered a "quasi-criminal" proceeding in order to recover discovery sanctions of $1,500, which were ordered to be jointly and severally paid by Defendant Niguel Pointe Homeowners Association and its counsel of record (S...

Excerpt: ...ers. 2. Plaintiff moves for monetary and terminating sanctions against Defendants Elena Medo and Adrianne Weir for the spoliation and intentional destruction of evidence by Medo in violation of the Court's TRO and Preliminary Injunction Orders. UPCOMING EVENTS: 1. Motion for Summary Judgment and/or Adjudication — January 19, 2024 2. Pretrial Conference — February 6, 2024 3. Jury Trial - February 26, 2024 FACTS/OVERVIEW: This is a trade secret...

Excerpt: ...1 st C/A (breach of contract): "[Tlhe elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) Here, Plaintiff established the existence of the contract (UMF 1), Plaintiffs performance (UMF 10-11), Defendant Cyprus Point'...

Excerpt: ...laintiff Sean Finnell; Defendant Control Air Enterprises, LLC seeks an order granting summary adjudication against Plaintiff Sean Finnell This Motion was continued from 10/13/23 to allow Counsel to submit Supplemental Points and Authorities re: (1) Why both Defendant Entities are applicable to the MS] and MSA as to the PAGA Claim; and (2) whether the operative Collective Bargaining Agreement references CAE's Member Operating Agreement. For ease o...

Excerpt: ...t admonishes counsel that all applicable statutes and court rules should be complied with in the future and the failure to do so may result in the Court taking a motion off calendar or sanctions, where appropriate. Fourth and Fifth Causes of Action for Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing Defendant's Demurrer argues that the breach of contract claim fails because Plaintiff has not set forth any terms or...

Excerpt: .... SHARON JAMIE, JILL CAPUTO and ANITA CHILVERS), it is unclear to which causes of action each Defendants demurs. MP does not indicate the demurrer is brought joint and severally. Notably, if counsel representing several defendants demurs on their behalf jointly (instead of jointly and severally), the demurrer may be overruled if the complaint is sufficient against any one of them, at least where only a special demurrer as to form is involved (the...

Excerpt: ...section 452, subdivisions (c) and (d). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 (disapproved on other grounds in Yvanova v. New Century Mortgage Corporation (2015) 52 Cal.4th 919, 939 at footnote 13.) "A demurrer tests the pleading alone, and not the evidence or the facts alleged.... To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but ...

Excerpt: ...motion is a renewed motion for summary judgment that was denied on 08/03/23. A renewed motion must be based upon" new or different facts, circumstances, or law..." (See Code Civ. Proc. 1008, subd. (b).) Dr. Perlman's moton is not based upon new or different facts, circumstances, or law, and therefore is denied on that basis. Where a party seeking summary judgment has not addressed all of the relevant allegations of the complaint and/or all theori...

Excerpt: ...ther, he was not timely advised of his Fifth Amendment rights during the deposition. Now that Pineda has pled guilty in the criminal matter, there do not appear to be any criminal matter impediments to the taking of a properly noticed deposition. Motion to Compel Examination of Plaintiff The motion of defendant Santa Ana Unified School District to compel plaintiff minor to submit to a psychological examination is GRANTED as modified. The plaintif...

Excerpt: ...production of records (set three) within 20 days. No monetary sanctions were imposed. (ROA 175.) Sunglao served responses, which arrived at Plaintiffs' counsel's offce on 8-19-23, but failed to verify those responses. (Declaration of Garrett Skelly, 4-5.) Code of Civil Procedure section 2023.010(g) defines the misuse of discovery process to include "[d]isobeying a court order to provide discovery." Code of Civil Procedure section 2023.030(d) gran...

Excerpt: ...tration Agreement, before arbitration can be compelled. (See 9 U.S.C. 52 and C.C.P. 51281.2). "If a party to a civil action asks the court to compel arbitration of the pending claim, the court must determine in a summary proceeding whether an 'agreement to arbitrate the controversy exist" (Ivere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 754.) "Because the existence of the agreement is a statutory prerequisite to granting the petition, the pet...

Excerpt: ....1346 [must serve motion on deponent].) The court is initially inclined to continue the motion to permit Bottorff to be properly served. The parties should be prepared to discuss whether Bottorff has or needs to be personally served. The main issue is this: Whether communicatons between Bottorff and representatives of The Regents are protected by the attorney-client and/or work product privilege. This is a thorny question under the facts. General...

Excerpt: ...yled as an "Amended Memorandum of Points and Authorities in Support of its Motion to Consolidate." (ROA No. 82.) Even if Plaintiff's Motion met the requirements of Cal. Rules of Court, Rule 3.350, Plaintiff has failed to establish good cause for consolidation of these matters. In assessing a motion to consolidate, courts will typically consider the following factors: (1) timeliness of the motion: i.e., whether granting consolidation would delay t...

Excerpt: ...0 status conference; and, [2] that there was “court error” by Judge Crandall for dismissing the case (without prejudice) when Pe
Ÿ
Ÿoner was not present at the 10/26/20 hearing and for (erroneously) sta
Ÿng in his minute order that the “Mo
Ÿon to ConÞrm the Arbitra
Ÿon Award was previously granted.” Pe
Ÿ
Ÿoner further contends that, “once the case is revised and an appealable judgment is signed by this court,” he “has an ade...

Excerpt: ...iff on March 28, 2023. The defendant sent a letter to plaintiff's counsel October 2, 2023, demand-ng that the plaintiff serve responses. Plaintiff did not serve any responses, she did not respond to counsel's letter, and she did not file opposition to the motions. The motions are GRANTED. Plaintiff is ORDERED to serve answers, without objections, in 15 days. Sanctions of $1,500 are awarded jointly and severally against plaintiff and plaintiff's c...

Excerpt: ...uted them to plaintiffs. The complaint seeks damages of over $253,000. The complaint raises six causes of action: 1. Breach of contract; 2. Negligence; 3. Intentional misrepresentation; 4. Negligent misrepresentation; 5. Unjust enrichment; and, 5. Money had and received. The complaint seeks monetary damages and exemplary damages for the alleged misrepresentations as to the status of the ERCs. The answer alleges the following affrmative defenses: ...