Excerpt: ...ave a chest intubation and a catheter in her chest cavity to resolve the pneumothorax. Plaintiff was hospitalized for 4 days. Defendant is demurring to the 2 nd, 3 rd and 4 th causes of action on grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. As to C/A #2, the Court finds that the elements of CACI 530A are sufficiently pled and Plaintiff has failed to state how and where this C/A is uncertain. The de...

Excerpt: ...�new litigation” to PJ; b. PJ approves, then instructs clerk of the court to file the new lawsuit; c. If clerk accidentally files without PJ consent, lawsuit “shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation.” §391.7(c) Here, plaintiff timely submitted her proposed complaint for PJ approval...

Excerpt: ...gregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened ‘clear and convincing evidence' standard.” Id. The first cause of action is alleged in conclusory terms. It alleges that the plaintiff was an elder and admitted to defendants' 24-hour health facility (TAC, ¶ 11) and the defendants were to provide care or services to dependent adu...

Excerpt: ...ut the plaintiff has by “stipulation” agreed to vacate and set aside the defaults. The “stipulation” was filed as an attachment to a declaration by plaintiff's counsel on March 27, 2018. It contained various terms that required a court order. But as counsel's declaration recognized, the Court could not issue orders based on the stipulation because it was signed by an attorney claiming to represent defendants who had neither appeared nor p...

Excerpt: ...le an opposition. For the following reasons, Plaintiffs' demurrer is sustained in part and overruled in part. “Generally speaking, the determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732. Accordingly, a demurrer reaches only to the contents of the pleading and such matter...

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

Excerpt: ...alleges that Defendant misrepresented to him that he required root canals on healthy teeth that did not require root canals, Complaint ¶ 25, and that Defendant knew the representations were false when made or made them recklessly and without regard for their truth. Id. ¶ 26. Plaintiff alleges that Defendant intended to deceive Plaintiff, id. ¶ 27, and that Plaintiff relied to his detriment and was damaged. Id. ¶¶ 28, 33. Plaintiff meets the ...

Excerpt: ...h filed his first amended complaint on 01/31/18, further amendments (such as joining Mr. Brooks as a party Plaintiff) required court approval. Code Civ. Proc. § 472. On its own motion, the court takes judicial notice of the fact that it did not grant Plaintiff leave to amend his complaint to join Arthur Brooks, dba “Art Brooks Sea Company” as a party plaintiff. Thus, the court holds that Mr. Brooks was not a named party to this action as of ...

Excerpt: ... to two employees for business purposes. Moving Party states there was no “Easter” celebration and the information regarding the theft was not made by defendant to any family member. In opposition, plaintiff contends the allegations of the First Amended Complaint must be taken as true and defendants have alleged the misrepresentation was made with malice. Plaintiff contends the allegations show defendants “wrongfully terminated Gary based o...

Excerpt: ...of its elements.” (Norgart v Upjohn (1999) 21 Cal.4th 383, 397.) “[T]he statute of limitations begins to run when the plaintiff suspects or should suspect that [its] injury was caused by wrongdoing, that someone has done something wrong … the limitations period begins once the plaintiff “has notice or information of circumstances to put a reasonable person on inquiry …” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–1111.) Wh...

Excerpt: ...te facts sufficient to constitute a cause of action as to the 2nd, 3rd and 8th causes of action. SUSTAINED on grounds of failure to state facts sufficient to constitute a cause of action as to the 1st, 4th, 5th, 6th, and 7th cause of action as follows: As to the 1st cause of action for declaratory relief, plaintiffs fail to plead facts showing the existence of an actual controversy involving justiciable questions relating to plaintiffs' and defen...

Excerpt: ...an infringement action.” Ultrapure Systems, Inc. v. Ham-Let Group (N.D. Cal. 1996) 921 F.Supp. 659, 665. Lack of standing is grounds for a general demurrer. (Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224.) Plaintiff's Opposition concedes this omission and states that the complaint can be amended to address this; accordingly, leave to amend is granted. Moving parties' other arguments are rejecte...

Excerpt: ... Jennifer Magallanes' special motion to strike the second and third causes of action in the cross-complaint of Jenny Ramirez is GRANTED. Moving parties have met their initial burden to show the allegations of the complaint are protected under the anti-SLAPP statute. Therefore the burden now shifts to responding party Jenny Ramirez to show she has a probability of prevailing on her claims. Responding Party has not offered any competent, admissible...

Excerpt: ...'s demurrer is SUSTAINED without leave to amend as to the 6th cause of action and otherwise OVERRULED. Zwerling shall file and serve an answer, if at all, within 10 days. 1st cause of action, breach of contract. The FACC states facts sufficient to constitute this claim. (See Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830 [elements].) Zwerling has not shown the FACC fails to adequately allege his liability on the note as the alter ego of I...

Excerpt: ... on the basis that the Complaint fails to adequately allege facts as to (i) Inadequacy of legal remedy; (ii) that the underlying contract is both reasonable and supported by adequate consideration; and (iii) Contractual terms which are sufficiently definite to enable the court to know what it is to enforce. The Demurrer to The Fourth Cause of Action For Quia Timet is SUSTAINED with leave to amend on the basis that the facts pled in the Complaint ...

Excerpt: ..., only five months ago. There is no trial date, no showing of any unreasonable delay by plaintiff in seeking leave to amend, no showing plaintiff did not exhaust administrative remedies to bring a PAGA claim, and no showing of any prejudice to defendant should leave to amend be granted. Leave to amend is liberally granted in the absence of prejudice. Defendant's arguments in opposition to the motion go solely to the merits of the proposed PAGA cl...

Excerpt: ...ange County Superior Court, Providence Capital Funding, Inc. v. Patterson, OCSC Case No. 30-2017-00933427. Plaintiffs attached a copy of the Providence complaint to their complaint and the First Amended Complaint filed in this action, and it remains the operative complaint in the underlying action. Plaintiffs tendered the underlying action to defendant on August 1, 2017. By letter dated September 21, 2017, defendant notified plaintiffs it had det...

Excerpt: ...owever, that this may be the end result at a later stage of the proceedings. Plaintiff's request for judicial notice of the location of Plaintiffs' alleged incident as 33 o35'22.7N, 117 o46'13.6”W is DENIED because it is based on search results on Google Maps (Ex. C, D & E) which is not something that is “not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accur...

Excerpt: ...ve to amend; 3 rd cause of action [CC §2923 et seq and ¶2924 et seq]: Ruiz Fernandez is not a borrower on the loan or Deed of Trust; Pltfs do not allege materiality of any purported violation or damages resulting from a violation; Allegations are contradicted by judicially noticeable documents; Sustain without leave to amend; 4 th cause of action [discrimination under CC §51.5]: This cause of action was added without leave of Court; Pltfs fail...

Excerpt: ...ed brief under the Code of Civil Procedure or Rules of Court. Defendant demurs to all six causes of action in the second amended complaint, which are for fraud, breach of third party contract, conversion, financial elder abuse, deceit, and breach of fiduciary duties. Defendant contends that all six causes of action are time-barred under subdivision (a) of Code Civ. Proc. § 340.6, which provides in relevant part: An action against an attorney for...

Excerpt: ...court DENIES the motion. In Opposition, Defendant Van Cao Nguyen argues correctly that Manh has failed to carry his burden to show that there are any new or different facts, circumstances, or law which would justify revisiting its prior ruling. The court has carefully considered all of the briefs, evidence, and oral and written arguments submitted by the parties. Manh argues that under CCP 1008 (a), he is not required to present newly discovered ...

Excerpt: ...o compel and the Case Management Conference are CONTINUED to June 14, 2018, at 1:30 pm. Any supplemental documents must be filed at least 9 court days before the next hearing. The defendants shall give notice. ...

Excerpt: ...only question is whether the trial court should specifically enforce the arbitration agreement. When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. (Rosenthal (1996) 14 Cal.4th 394, 412-413 [error for trial court to merely f...

Excerpt: ...Defendant would enter into a licensing agreement with plaintiff to operate the restaurants in Anaheim, Santa Ana and Tustin, with certain restrictions on defendant's ability to license the trademark to others.  Plaintiff would transfer ownership of the Anaheim restaurant to defendant.  Plaintiff would transfer ownership of the Fullerton restaurant business to defendant.  The owner of the Fullerton Property would agree to transfer fee sim...

Excerpt: ......

Excerpt: ...eet and confer process, by the filing of a demurrer, or by the filing of a motion for leave to amend. The court does find that the claims and theories of liability alleged in the FAC are substantially similar to the claims alleged in the Sanchez class action, because they arise from the same set of transactions and involve many of the same overlapping questions of law and fact. As a member of the class, Hopson is also a plaintiff in the Sanchez a...

Excerpt: ...n-suit. Also Plaintiff requests the dismissal of Plaintiff's past 36 years history to include but not limited to Plaintiff being incarcerated.” Plaintiff cites no legal authority for his Motion. As stated in the Opposition, even assuming arguendo that the Motion is made pursuant to Code of Civil Procedure sections 436, 437, 437c, 438, and/or 581, Plaintiff has failed to comply with the statutory requirements of these code sections or they do no...

Excerpt: ...na Rules of Court, rule 3.1350(b) and (d). Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden...

Excerpt: ...xtent Plaintiff asserts that she never signed the arbitration agreement, she may provide competent admissible evidence in the form of declarations or documentary evidence in support of this assertion. The court declines to award monetary sanctions at this time. Plaintiff Nicole Naghash's Motion to Compel the Deposition of Michael Martines is DENIED, without prejudice. The ruling is the same as that set forth above on Plaintiff's Motion to Compel ...

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

Excerpt: ... th 92, 98.) With respect to the privacy objection, the court finds Plaintiff has waived his right to privacy. Even assuming there is a valid privacy right, the court finds Defendant's need for the information sought outweighs Plaintiff's right to privacy. The court orders a further response without objections within 30-days. Prevailing Party is to give notice. ...

Excerpt: ...ies, 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 (Flick) (1998) 60 Cal.App.4 th 793, 810, states, “Although a judge hearing a section 664.6 motion may receive evidence, determine disputed facts, and enter the terms of a settlement agreement as a judgment, [citation] nothing in section 664.6 authorizes a court to cr...

Excerpt: ... Hose Kim, M.D.,” “West Star Physical Therapy,” Tower Orthopaedics,” “Shin MRI, LLC,” and “Healthcare Partners Medical Group.” The insurance providers receiving a deposition subpoenas is identified as “Anthem Blue Cross Life and Health Insurance Company.” “Healthcare Partners Medical Group” also received a deposition subpoena for its billing records. Code of Civil Procedure section 1987.1 states, “(a) If a subpoena requi...

Excerpt: ...ines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Code of Civil Procedure section 425.16, subdivision (e), explains, “As used in this section, ‘act in furtherance of a person's right of petition or ...

Excerpt: ......

Excerpt: ...ode section 3294. RP to give notice. ...

Excerpt: ...ioins], and the burden of showing that an itme is not properly chargeable or is unreasonable is upon the [objecting party].' [Citations.]” Gordon E. Runyon filed a Memorandum of Costs on Appeal on 12-29-17 requesting $5,964.29 in costs. Defendants assert the costs claimed by Mr. Runyon are inflated, unsupported and likely include costs incurred by his former wife, as to her unsuccessful appeal. (Defendants' Notice of Motion and Motion to Tax Co...

Excerpt: ...454, 459.) If plaintiff fails to establish either element, a preliminary injunction should be denied. (Id.) To establish a likelihood of prevailing on the merits, the moving party must present evidence demonstrating a probability of prevailing on the merits. This is customarily done by affidavits or declarations, although a verified complaint and other discovery can be considered. (See Continental Baking Co. v. Katz (1968) 68 Cal. 2d 512, 527, an...

Excerpt: ...o constitute this cause of action. Plaintiff has sufficiently identified the trade secrets. (See Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1453 [standard]; see also FAC ¶ 12; accord 11/28/16 order [granting preliminary injunction].) 2nd-6th causes of action. The California Uniform Trade Secrets Act preempts the causes of action as currently alleged for interference with prospective economic advantage, interference with contract, bre...

Excerpt: ... plaintiff consented to one procedure (tubal ligation) but defendants performed another (bilateral salpingectomy). (See Cobbs v. Grant (1972) 8 Cal.3d 229, 242; Conte v. Girard Orthopaedic Surgeons Medical Group (2003) 107 Cal.App.4th 1260, 1267; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324-325; see also FAC ¶¶ 11-12.) The FAC can be “liberally construed” (Code Civ. Proc. § 452) to allege plaintiff did not understand she was even bein...

Excerpt: ...ably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) Any “ambiguities can be clarified under modern discovery procedures.” (Ibid.) 5th cause of action, fraudulent concealment. The FAC states facts sufficient to constitute this cause of action. (See Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131; see also FAC ¶¶ 58-66.) The claim is not incomprehensibly uncertai...

Excerpt: ...he merits: The court overrules the demurrer to the first cause of action for breach of contract. The cross-complaint, as well as the complaint, puts all parties on notice of the substantive and controverted terms of the alleged contracts. The court sustains the demurrer to the second cause of action for breach of the covenant of good faith and fair dealing. Breach of implied covenant allegations may be ignored as superfluous where they do not go ...

Excerpt: ...n to rule on the Demurrer, future demurrers that violate this rule may be disregarded or overruled. The demurrers to the 6 th (lack of proximate cause), 31st (failure of consideration), 32nd (want of consideration), 34 th (excuse), 36th (lack of mutual consent), 37th (lack of present intent to contract), and 38 th (lack of definite terms of contract) affirmative defenses are overruled. These purported “affirmative defenses” merely negate esse...

Excerpt: ...uty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence. Barris v. County of Los Angeles (1999) 20 Cal.4 th 101, 108; Tortorella v. Castro(2006) 140 Cal.App.4 th 1, 3. Only the phar...

Excerpt: ...ED. Even if Plaintiff is correct that there is no proper agreement to accept electronic service, Plaintiff received the opposition and responded to it on the merits; thus, any service defect is waived. Plaintiff has not been prejudiced by any defect. General Law “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or ...

Excerpt: ...t confidential and under seal. (Eyerly Decl., if 6.) As such, a contractual obligation not to disclose constitutes an overriding interest overriding the minimal public interest, which supports partially sealing the record with respect to the settlement amount. (See Universal City Studios, Inc. v. Sup. Ct. (2003) 110 Cal.App.4th 1273, 1283 ("We agree with defendant that its contractual obligation not to disclose can constitute an overriding intere...

Excerpt: ...equest to change the fire pits in 2008 and Plaintiff did not file this action until 2017. (Dem. at 7-8.) Generally, there is a two-year statute of limitations to file suit for “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” Code Civ. Proc. § 335.1. The statute of limitations begins to run when the cause of action accrues. Code Civ. Proc. § 312. Under the “delayed disco...

Excerpt: ...7-930107 – especially if the cases are consolidated. Denying the motion would not seem to prejudice plaintiffs, who are already identical claims in identical capacities against identical defendants in Case No. 30-2017-930107. Can we have just one civil action here? ...

Excerpt: ...f's counsel and defendant Sukeinah Kassir to conduct a meeting in the presence of a discovery referee (using one of the court's temporary judges) in order to meet and confer regarding the responses at issue in plaintiff's motions to compel further responses to the aforesaid discovery. Based on the correspondence submitted to the court, it does not appear that the parties have meaningfully discussed the substance of Ms. Kassir's responses, and suc...

Excerpt: ...on has no merit; i.e. that, as to each cause of action, one or more elements of the cause of action cannot be established or there is a complete defense. (Code Civ. Proc., § 437c (a), (p)(2).) Only after a defendant meets that burden, does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (Id.; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) ...

Excerpt: ...t or to the Court's conclusion. For the reasons set forth below, the Petition for Writ of Administrative Mandate, or alternatively, Writ of Mandate is DENIED. The parties do not appear to dispute the controlling legal authority. The standard of review on administrative mandamus is independent review. Strumsky v. San Diego County Employees' Retirement Association (1974) 11 Cal.3 rd 28, 32. Under the independent review standard, the trial court det...

Excerpt: ...meaningful forum for litigants.” Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105. The case at this point is approximately one year old, and there has been no prior continuance of trial. Plaintiff shows good cause to continue trial due to ongoing medical treatment, and Defendant will suffer little prejudice from granting the motion. Motion to continue is GRANTED Parties are to discuss at the hearing a mutually convenient date for the continued...

Excerpt: ...e or in person with plaintiff's counsel in a good-faith effort to resolve the issue. (Code Civ. Proc., § 4310.41, subd. (a).) Other motions Motion to strike complaint is taken off calendar. (See 11/16/17 FAC.) Demurrer and motion to strike FAC taken off calendar at parties' request ...

Excerpt: ...fied that no amendments to the contract exist during that that 12/1/14 -12/1/15 treatment period. Defendant is ordered to produce any amendments during this time-frame. Additionally, contracts between 2012 and the present are relevant to GPA's handling of the claims for reimbursement that occurred after the one year contract period. The Hospital continued to send appeals to GPA through April 2016. Also, changes to the contract may show whether De...

Excerpt: ...se for the production of these documents. More importantly, the proof of service submitted by Defendant shows that nonparty GEICO Insurance Company was served with the moving papers via overnight mail and not by personal service as required by California Rules of Court, Rule 3.1346. The court is inclined to deny this motion. ...

Excerpt: ...eposition per the parties' stipulated agreement. Therefore, Plaintiff's Motion to compel Mr. Godsey's deposition is moot. Mr. Godsey is already under a court order to appear for deposition on April 30. Next, the parties dispute whether Defendant must produce documents at the time of his deposition appearance. In this regard, the Court notes that Defendant already represented to the Court that is has agreed or stipulated to produce certain, unspec...

Excerpt: ...erve responses to form interrogatories and requests for production, and imposing monetary sanctions. However, plaintiff gave insufficient notice of the motion, which was served by FedEx on 3- 29-18. This is only 16 Court days' notice, and notice of an additional 2 calendar days is required by Code Civ. Proc. § 1005(b). (“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at leas...

Excerpt: ...laintiff to show a triable issue of material fact exists as to either the particular cause of action or the proffered defense thereto. (Id. at 468.) County has met its burden here, as County has presented evidence demonstrating that it did not own or control the property at issue at the time of the alleged incident. (UF 1-4, 13 and 15.) Nor could County be liable on the common law negligence claim. (See Gov. Code §810 et seq.) The burden thus sh...

Excerpt: ...ge is the moving party. The motion also fails to comply with the requirements of CCP § 403 and CRC, Rule 3.500. Both § 403 and Rule 3.500 require that a motion for coordination be supported by a declaration stating certain facts. The motion before the Court is not supported by any declaration. Further, § 403 requires that the motion be served on each court in which an action is pending. The proof of service which accompanies the motion does no...

Excerpt: ...ons to the Navarro Declaration (ROA 152) are all OVERRULED. In the First Amended Complaint, Plaintiff alleges, among other things, various Labor Code violations, including that Defendant R.J. Noble Company failed to pay Plaintiff for all hours worked, including time spent loading materials, fueling the trucks, preparing tools and equipment, traveling to and from the job sites, waiting time, and driving for over 8 hours straight if such time was s...

Excerpt: ...s allegations, Plaintiff's motion to quash is GRANTED to the extent it the subpoena seeks production of Plaintiff's payroll records, and DENIED as to the remainder. Plaintiff's Motion for Protective Order is DENIED. The Complaint alleges that Plaintiff has suffered and continues to suffer financial losses. Her verified discovery responses, however, clarify that her “economic losses ceased accruing” when she began working for O'Reilly in Novem...

Excerpt: ...§ 685.040. Also, a contractual basis for recovery of attorney's fees against judgment debtor Tung Minh Nguyen as guarantor was established. Finally, plaintiff/ judgment creditor Mintaka Financial, Inc.'s post-judgment enforcement attorney's fees and costs are reasonable. See, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4 th 1084, 1094. Moving party to give notice. ...

Excerpt: ...ce presented supports the granting of the motion as to some, but not all, of the issues involved in the action, specifically, plaintiff's cause of action for wrongful termination. There is no substantial evidence to support the jury's verdict in plaintiff's favor as to plaintiff's cause of action for wrongful termination. In the verdict form the jury answered “yes” (9-3) to the following question: “Was Rogelio Arellano's refusal to engage i...

Excerpt: ...ith insufficient evidence as to Digitech's ability to experience emotional distress and/or its ability to receive an award on behalf of a non-party, and 3) were awarded due to an error of the law regarding Digitech's ability to experience emotional distress and/or its ability to receive an award on behalf of a non-party. C.C.P § 657(5)-(7). Digitech cannot obtain an award for emotional distress as a business is incapable of feeling emotions. Hun...

Excerpt: ...w evidence), finding that Plaintiff failed to establish the elements of commonality, superiority and ascertainability. Specifically, the Minute Order states: “Whether a putative class member may allege a violation of CC § 1940.1 or CC § 52.1 against Defendant is a threshold question that will require individualized scrutiny – i.e., on the day a putative class member was forced to check out, was the facility the primary residence for at leas...

Excerpt: ...or Court (1981) 30 Cal.3d 244, 249. Next, a complaint for unlawful detainer can be verified on information and belief by a corporate officer or managing member of a limited liability company. See, C.C.P. § 446. Civil Code § 1812.10(a) provides that it is applicable to: “An action on a contract or installment account under this chapter shall be tried in the superior court in the county where the contract was in fact signed by the buyer, where ...

Excerpt: ...ith the other parts of the case. The Court recognizes that other defendants on the interpleader complaint either do not claim a right to the funds per their answers, or that the Plaintiff and the Le cross-defendants are in default for the interpleader portion of the case. However, the Court will defer a final ruling on the bifurcation issues until the trial and to ascertain how events unfold ahead. (See Civ. Trials and Evidence ¶ 4:396, 4:399, 4...

Excerpt: ...follows: 1. Defendants misappropriated AGA's trade secrets, and were unjustly enriched in the amount of $1,028,431.00; 2. Defendants negligently interfered with AGA's prospective economic advantage – but caused no economic harm; 3. Johnson breached his duty of loyalty – but caused no economic harm. Judgment was entered thereon, ordering all three defendants to be jointly and severally liable for the whole of the enrichment obtained by defenda...

Excerpt: ... for Breach of Insurance Contract Defendant argues that Plaintiff's breach of contract claim fails because Plaintiff has “failed to plead the essential terms of a binding agreement providing coverage for disputes sued upon.” To establish a cause of action for breach of contract, a plaintiff must plead and prove: (1) a contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damages ...

Excerpt: ...aintiffs' ability to bring a noticed motion for leave to amend to introduce alternative theories in the future. In essence, Plaintiffs allege they were not properly considered for HAMP loan modification, to which they were entitled, and thus have lost the benefit of the loan modification which has caused them damages in the form of losing the reduced monthly payments on the loan, and saving money that they could have applied towards the principal...

Excerpt: ...ovide a supporting declaration which specifies: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. The original declaration filed in support of the motion fails to satisfy the second, third or fourth requirement. The declaration centers on Christi Torres' September 2014 tra...

Excerpt: ...onmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, [the court] believe[s] that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial. ” New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431. In footnote 15, the New Albertson court referenced CACI Jury Instruction 204, w...

Excerpt: ... on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.'” Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746. “'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it ...

Excerpt: ...8; Davenport v. Stratton (1944) 24 Cal. 2d 232. Additionally, the language “including but not limited to,” is also too vague to comply with the requirements of C.C.P. § 458. The Demurrer is GRANTED with leave to file a Second Amended Answer within 7 calendar days. ...

Excerpt: ...nd. It is a rare case in which a court will be justified in refusing a party leave to amend his pleading so that he may properly present his case. (Board of Trustees of Leland Stanford Jr. University v. Superior Court (2007) 149 Cal.App.4th 1154, 1163.) It is premature to attempt to decide the merits of the proposed amendment. “[T]he preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demu...

Excerpt: ... that provision applies only where SAI is sought on “a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty.” (C.C.P. § 437c(t).) Here, every “Issue” presented seeks to dispose of an entire cause of action (“COA”). Plaintiff is thus in error in claiming that §437c(t) applies here. Issues 1 and 2 are directed to COA 2. However, COAs...

Excerpt: ... to arbitrate the controversy exists. . .” C.C.P. § 1281.2. Although a written agreement to arbitration has been alleged by Defendant, no evidence of a contract was submitted with Defendant's Motion, and indeed no exhibits at all were attached to the Declaration of Traci Park in support of Defendant's Motion, despite multiple references to various exhibits throughout the Motion and Declaration. At this time the Court is unable to determine whe...

Excerpt: ...serve a proposed order pursuant to Cal. Rules of Court, Rule 3.1362(e). On or before April 30, 2018, counsel is ordered to file an amended notice of motion and motion, a proposed order, and proof of service showing that all of the documents were served on the client and other parties in this matter. ...

Excerpt: .... Superior Court (2016) 244 Cal.App.4th 259, 263.) The cited decisions also question to some extent the continuing application of the substantial compliance doctrine in the Biddle case. It is noted that the lis pendens was recorded on or about August 22, 2017 while it was filed in this court case, earlier, on or about August 21 st. The timing seems to be in the reverse order under the statute. (CCP §405.22 (“Immediately following recordation, ...

Excerpt: ...ssal, or within 180 days after entry of judgment, whichever is first.” The service of notice of entry by the clerk is only effected when the service is made pursuant to court order. (See Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc.(1997) 15 Cal.4th 51, 64.) Here, service of the notice of entry of judgment by the Clerk was not under Code of Civil Procedure section 664.5. Accordingly, the Clerk's mailing of th...

Excerpt: ...) added two court days to the Monday, March 5, 2018 due date. Thus, defendants' response was originally due on March 7, 2018. The one- week extension made the due date March 14, 2018, which was the date on which defendants filed this motion. The reply declaration includes a February 27, 2018 email from plaintiff's counsel confirming the one-week extension, without any disagreement as to the original response date. Plaintiff thus is estopped from ...

Excerpt: ...collectively provide that money judgments for statutory costs can only be effectively stayed with the filing of an undertaking. Otherwise, trial courts can only give brief (10 day) stays. See Sharifpour v. Le (2014) 223 Cal.App.4 th 730, 733- 734. Since the entirely of the defense award was triggered by a CCP §998 cost-shift (see Minute Order dtd 10/27/17), the entire award should be immediately collectible absent an undertaking. However, there ...

Excerpt: ...ny notice of change of mailing and electronic service addresses. Plaintiff cites the wrong ground for relief, Code of Civil Procedure section 116.725, which applies to actions under the Small Claims Act. Nevertheless, the court construes this motion as one for relief under Code of Civil Procedure section 473. The dismissal was entered as a result of Plaintiff's attorney's mistake and neglect. The clerk is ordered to vacate the dismissal entered o...

Excerpt: ...a Code of Civil Procedure section 473 “must be resolved in favor of the party seeking relief from default.” Id. In addition, plaintiff's counsel should have, as a matter of professional courtesy, given notice of the impending default to defendants' counsel. Id. at 701-702. Defendants are ordered to pay Plaintiff $1,000 within ten (10) days of this order. Code Civ. Proc., § 473(c). Defendants shall serve and file the proposed answer attached ...

Excerpt: ... jurisdiction to hear the CLRA matter. Section (d) of CCP § 1782 states as follows: (d) An action for injunctive relief brought under the specific provisions of Section 1770 may be commenced without compliance with subdivision (a). Not less than 30 days after the commencement of an action for injunctive relief, and after compliance with subdivision (a), the consumer may amend his or her complaint without leave of court to include a request for d...

Excerpt: ...s not end the inquiry. Is Dibatech asking this Court to send both 2016-893630 and 2017-938142 to arbitration? Motion continued to 05/11/18 at 9:30am. Absent a stipulation from all parties, plaintiff is ordered to file/serve at least 10 days prior to the new hearing date a clarified Notice and Memorandum as to just what is being sought. ...

Excerpt: ...(2) ASC's Petition to Vacate Arbitration Award (“Motion 2”); and (3) Plaintiff's Petition to Correct, or in the Alternative, Confirm Arbitration Award. (“Motion 3”). I. The Petitions to Vacate Both Petitions to Vacate (Motions 1 and 2) are DENIED. In Motion 1, Nguyen argues that she never agreed to arbitration, so the award is invalid as to her. But she failed to make that argument in opposing the motion to compel arbitration, and then pa...

Excerpt: ...one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” (Code Civ. Proc., § 2031.300, subd. (a).) Here, Plaintiff propounded Requests for Production of Documents, Set One, on Defendant on January 4, 2018 by mail. Despite promises to send a response, Defendant never served any response or responsive documents. Thus, the court grants this Motion. Defendant Steven Coe is ordered to provide...

Excerpt: ... of sanctions. Monetary sanctions of $735 are awarded in favor of Moving Defendant, and against Plaintiff and her counsel, AlderLaw PC, and payable to Selman Breitman, LLP, within 30 days of the notice of ruling. The parties should be prepared to discuss Plaintiff's objection to an instruction that she try on the vest at her deposition. MOTION TO COMPEL FURTHER DEPOSITION TESTIMONY Moving Defendant's motion to compel further deposition testimony ...

Excerpt: ... 38, 46-49, 57 and 61, and Request for Production of Documents nos. 5-79) and requested sanctions of $4,785 against Defendant and its counsel in connection with each of the two motions. The hearing has been continued twice as the parties have been meeting and conferring and providing further responses. As a result, as far as the Court can determine, the issues are narrowed to the following requests for production of documents (Nos. 1-3) and speci...

Excerpt: ...raph 5 of his opposition declaration filed on March 5, 2018 regarding his diligent search and inability to locate any additional documents. The court also wants to make it clear that “see all trial documents” and “see trial exhibit list” are not legally proper responses to a document request. Bonnier Corporation and World Publications, LLC's Motion to Compel Further Responses to Request for Production of Documents from Bare Sports Canada,...

Excerpt: ...ht to compel further responses to Form Interrogatories-Employment (Set 1) nos. 210.2, 210.3, 212.4 – 212.7, 213.1, 213.2, 215.1, and 215.2. On April 9, 2018, Plaintiff served further responses (labeled supplemental responses) to these disputed interrogatories. (See Opp., Exh. 1.) In its Reply, Defendant argues that Plaintiff did not provide further responses to interrogatory nos. 210.3, 215.1, 215.2. Plaintiff, however, did provide a further re...

Excerpt: ...tive order under Sections 2025.420 and 2025.470, the deposition shall proceed subject to the objection.” Here, Plaintiff's counsel terminated the deposition and stated: “You can go to court and ask to reset it if you like.” (Pelliconi Decl., Exh. F.) Defendants promptly filed an ex parte application seeking to compel Plaintiff's deposition or alternatively an order shortening time on a motion to compel the deposition or alternatively a 90-d...

Excerpt: ...6 Cal.App.4th 1047, 1060 (the party seeking to compel arbitration “may meet [its] initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.”) Plaintiff does not dispute the fact that she signed the agreement and does not make any claim of fraud, duress or unconscionability. Thus, the arbitration agreement is enforceable. The agreement includes a delega...

Excerpt: ...state (part of the 12th cause of action), which claims are stayed. The unpaid wage part of the 12th cause of action asserting representative PAGA claims is dismissed without prejudice. This case is ordered stayed pending the conclusion of the arbitration. A Post-Arbitration Review Hearing is set for October 25, 2018 at 9:00 a.m. Defendants' Request for Judicial Notice is granted. The court concludes that there exists an agreement to arbitrate the...

Excerpt: ...m in the Complaint and, in response to representations by Plaintiff' counsel that it could allege additional facts to cure the defect, the Court granted leave to amend. Plaintiff has added only conclusory language that the retention of the $1,070 commercial security deposit was “intentional” and “unlawful” etc. First, damages for failure to return a commercial security deposit are governed by CC § 1950.7. For the “bad faith” retentio...

Excerpt: ...pany suffered no prejudice due to the one day delay of Plaintiff's filing and serving its Opposition to the Motion; 4) The Demurrer and Motion to Strike attached to Sprint United Management Company's Motion shall be separately filed as its responsive pleadings to plaintiff's Complaint within 3 days. The hearing on these pleadings will be at the Case Management Conference on 05-14-18, along with the hearing on the Demurrers from co-defendants Sams...

Excerpt: ...erriding interest in enforcing the confidentiality clause at paragraph 5 in the settlement agreement. (NBC Subsidiary Inc. v. Superior Court (20 Cal.4 th 1178, 1222, fn. 46, dictum citing Publicker Industries Inc.v. Cohen (3 rd Cir. 1984) 733 F.2d 1059, 1073 [“where there is a binding contractual obligation not to disclose certain information . . . unbridled disclosure of the nature of the controversy would deprive the litigant of his right to ...

Excerpt: ...geable about (1) where and how the responsive electronic documents are stored; (2) how much time, effort, and cost would be required to produce the documents in their native format; (3) whether or not a third-party vendor is required to comply with Defendants' demand. Similarly, Defendants are ordered to appear with a computer expert who can speak authoritatively on the issues set forth above. Defendants shall make best efforts to have a represen...

Excerpt: ...s order. On November 15, 2017, plaintiff propounded the subject discovery discovery requests on Defendants Dual Diagnosis. Defendant obtained an extension of time until January 10, 2018. The Defendant requested another extension but the plaintiff denied the request. On January 17, 2018, Plaintiffs received Defendant's response to Plaintiff's discovery requests which indicated they were served on January 10, 2018. In response to every single disco...