Excerpt: ...he 1999 License Agreement. Id. As to cross-complainant Optimum Power's second cross-claim for accounting, plaintiff has alleged sufficient facts as to a basis for an accounting in the context of the alleged breach of the NDA agreements. As to cross-complainant Optimum Power's third cross-claim for breach of contract, Optimum Power has alleged sufficient facts as to breach of the NDA agreements even if the 1999 License Agreement and amendments the...

Excerpt: ... or intentional acts or omissions of OC Farm Bureau. It also contends that it did not engage in any active negligence on the day of the incident. Here, as set forth in the separate statement submitted by Mariners Church, the relevant provision in the license agreement between Mariners Church and OC Farm Bureau states: Licensee shall indemnify, defend, and hold harmless Licensor, its officers, agents and employees, from and against any claims, dam...

Excerpt: ...ates that she is 1) 72-years old; 2) Plaintiff has a substantial interest in the action as the sole plaintiff; and 3) Plaintiff's health such that a preference is necessary to prevent prejudicing the party's interest in the litigation as noted in the Declaration of Shahab Attarchi, M.D. Defendants' evidentiary objections to the Declaration of Mark A. Schadrack are SUSTAINED. Defendants' evidentiary objections to the Declaration of Shahab Attarchi...

Excerpt: ...prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain.” Rule 3.1332(b) provides that the court may order a trial continuance upon an affirmative showing of good cause. See also, Rutter, Civil Procedure Before Trial, Section 12:453. Rule 3.1332(c) sets forth several specified grounds constituting good cause for a continuance. “Circumstances that may...

Excerpt: ...dian ad litem, Randy Pearcy is DENIED. The motion for summary adjudication of the Third Cause of Action, Count Three is DENIED. There is a triable issue of material fact as to whether there was a vertical elevation in the sidewalk on Camino Mira Costa that caused plaintiff's fall. In addition, plaintiff's expert, Peter Zande, opines that this condition must have existed since the time the concrete was poured. (Zande Decl., ¶10(A).) As a result, ...

Excerpt: ...n for open book account, fourth cause of action for unjust enrichment/constructive trust and fifth cause of action for accounting. Courts do not grant summary judgment on two causes of action with a plaintiff agreeing to dismiss other causes of action if “summary judgment” as to two other causes of action is granted. Second, as to summary adjudication, plaintiff Eco's motion for summary adjudication as to plaintiffs' first cause of action for...

Excerpt: ...establish a certain element to a claim for violation of the Fair Employment and Housing Act (FEHA). Plaintiff's causes of action, however, include, inter alia, a breach of contract claim, the success or failure of which does not necessarily depend on plaintiff's ability to demonstrate a violation of FEHA. Issue No. 3 –Defendants may properly challenge plaintiff's first cause of action to the extent it alleges “FEHA disability retaliation” a...

Excerpt: ...ast two respects. First, it does not clearly state the issue to be decided as required by CRC 3.1350 (d) and (h). Second, both the separate statement and the notice of motion are defective because they do not repeat, verbatim, the issues or claims to be decided. Finally, as to the merits, in its Separate Statement at Facts 1-4, Defendant So. Cal. Sandbags meets its initial burden of production by a preponderance of the evidence. Defendant makes a...

Excerpt: ...there is no frame of reference. Plaintiff also submits her own deposition testimony that the crack was in her guess, approximately 1-2” but Plaintiff admits that she is “not sure on the exact width of the crack.” Plaintiff also does not dispute that there were no other factors leading to the accident. As a result, the Court finds that, as a matter of law, the defect was trivial and Plaintiff did not raise a triable issue of fact. Defendants...

Excerpt: ...sufficient is not grounds to grant or deny the motion for judgment on the pleadings” (CCP 439(a)(4)), its requirements are otherwise mandatory. Here, the motion was filed on 1-3-18, and is thus subject to CCP 439. However, Moving Party did not file the required declaration. Responding Party's Opposition raises this defect [as well as arguing the merits of the motion]. Moving Party's Reply argues that the issue of meeting and conferring “was a...

Excerpt: ...ns are moot. If the motions are not moot, then they are GRANTED, except that No. 20 is limited to the year 2015. The request for monetary sanctions against the defendants is GRANTED in the total amount of $1,260, payable within 30 days. The plaintiffs shall give notice. ...

Excerpt: ...e First Cause of Action for Cancellation of Deed, as Mrs. Andersen's custody or possession of the instrument in question is not an essential element for this claim. See Civ. Code §3412. The motion is DENIED as to the Third Cause of Action for breach of common law fiduciary duty. Mrs. Andersen argues that the claim is barred by Family Code §1101(a) and Probate Code §16460(a). However, the First Amended Complaint does not clearly disclose that p...

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: ...) 20 Cal.4th 1103, 1113-1114; see also Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1506.) The court finds attorney Nathaniel Brown's reasonable hourly rate to be $250.00 and that he reasonably expended a total of 70.7 hours with respect to this matter, and that attorney Martin S. Kovalsky's reasonable hourly rate is $400.00, and that he reasonably expended a total of 2 hours with respect to this case. (See 569 East County Boulevard LLC v. Ba...

Excerpt: ... the parties costs of partition, including “reasonable attorneys' fees incurred or paid by a party for the common benefit.” The key, of course, is whether the services provided by plaintiff's counsel were incurred for the “common benefit” of plaintiff and defendant. Orien v. Lutz (2017) 16 Cal.App.5th 957, and Lin v. Jeng (2012) 203 Cal.App.4th 1008, make plain that this Court ought to consider the totality of the circumstances in decidin...

Excerpt: ...s attached as exhibits to the FAC, Plaintiff's conclusory allegation in paragraph 19 of the FAC that the Defendants “caused him” to execute the loan documents notwithstanding the fact that the property was Plaintiff's residence is not sufficient to allege that the loan is subject to the Dodd-Frank Act, as business loans are not subject to the Act. 15 USC § 1603(1). If the exhibits to the complaint contradict the language of the complaint, th...

Excerpt: ...ed to state a cause of action for fraud. The Complaint alleges the defendant promised to pay for the services rendered but did not; issued a check and then put a stop payment on it; and created disputes without justification as a pretext for not paying agreed upon fees even though the work was performed in accordance with industry standards. 2. Second Cause of Action for Passing Check with Insufficient Funds The defendant asserts this cause of ac...

Excerpt: ...ting (attached as Exhibit A). Since there is no statute of limitations concern, and consideration is obvious, it is unnecessary to engage further to determine how the gravamen of the agreement came to be (oral or written). Whether it is written, oral, or implied, the elements for breach of contract are: (1) parties capable of contracting, (2) mutual consent, (3) a lawful object, (4) sufficient cause or consideration, (5) plaintiff's performance o...

Excerpt: ......

Excerpt: ...re additional items identified in Attachment 1g that bring the total to $1,770.00. The items in 1.g do bring the total to $1,770.00. The items are filing fees for an ex parte hearing, the MSJ/MSA and two $10 entries for the electronic filing fees related to oppositions. Item 4 – deposition costs Defendant has explained he was the only defendant present at the deposition of plaintiff. Further, despite plaintiff's protestations to the contrary, d...

Excerpt: ...violation of statute does not destroy this negligence claim. Plaintiff has alleged the elements of a claim for negligence; duty, breach, causation and damages. With regard to the second cause of action for nuisance, whether or not there was a superseding criminal act which relieves the defendant of a duty to plaintiff is a question of fact for the jury. Further, there is no requirement the alleged nuisance be “continuing” or “permanent” t...

Excerpt: ...case law, only the association, or an owner of a separate interest in a common interest subdivision, has standing to enforce a declaration of covenants, conditions and restrictions. (Civil Code 5975(a); Martin v. Bridgeport Community Assoc., Inc. (2009) 173 Cal.App.4th 1024, 1033.) There are no facts alleged to show that defendant Stonekastle Property Management, Inc. is a party to the CC&Rs, nor is any other contract alleged which this defendant...

Excerpt: ...Plaintiffs move for entry of judgment based on the settlement agreement, which Plaintiffs allege Defendants have breached. Defendants did not file an opposition to Plaintiffs' motion. For the following reasons, Plaintiffs' motion is granted. In a September 6, 2016 order, the court (Judge Andrew P. Banks) granted issue sanctions against Defendants, establishing liability against Defendant Ocampo on Plaintiffs' first cause of action for financial e...

Excerpt: ... with Rule 2.112. Second, Petitioner Sutton's opposition appears to claim that he is seeking only equitable title and not legal title. But the prayer in Petitioner's first amended petition includes a request for an order that the trustees of the irrevocable trust in this case “…execute and record a deed and execute any other documents necessary in order to fully transfer such interest to Petitioner.” Petitioner thus appears to be seeking le...

Excerpt: ...ns do have a right to privacy, it is not a constitutional right. The corporate right to privacy is a lesser right than that held by human beings and is not considered a fundamental right. (Internal citations omitted.)” SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal. App. 4th 741, 756. “Because the corporate privacy right is not constitutionally protected, the issue presented in determining whether [the Party's] requests for productio...

Excerpt: ...omplaint alleges a written contract existed, it failed to provide proof of the contract or to assert any of the terms of the contract, failed to state how Plaintiff performed under the contract or her excuse for nonperformance, or how Plaintiff's alleged damages are related to the contract. Further, the Complaint is uncertain as to defendants Hai N. Duong, Cuong Nguyen, and Phoung Thi Kim Dang, as it fails to plead facts showing that a contract e...

Excerpt: ...ine requires an appeal and the reviewing court stating in its opinion a principle or rule of law necessary to the decision. See Clemente v. State(1985) 40 Cal.3d 202, 211. These facts do not appear on the face of the FAC, and are not established by judicial notice. The doctrines of collateral estoppel and/or res judicata are each inapplicable because these doctrines both require the existence of a final judgment. The final judgment element for re...

Excerpt: ...Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“[f]ollowing an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order”].) For the sake of efficiency, however, the court will exercise its discretion to allow the amendment. (Weingarten v. Block (1980) 102 Cal.App.3d 129, 134 [trial court has broad discretion to allow...

Excerpt: ...le of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.”). The Second Amended Complaint alleges the following: that Defendant drove her vehicle to the Dana Point Harbor and then spent several hours willfully consuming alcohol at bars to the point of serious alcohol intoxicating, knowing that she would thereafter operate her vehicle at the Dana Point Harbor (SAC, ¶ 11); Dana Point is a well-...

Excerpt: ...own v. Williams (2000) 78 Cal.App.4th 182, 186 fn. 4; Ramos v. Homeward Residential Inc. (2014) 223 Cal.App.4th 1434, 1444.) Plaintiff's proof of service filed on 6/01/17, purports to show substituted service on Tavaris on 5/24/17 at 3:50 p.m. by leaving the papers with his father Albert Williams at 1726 Dees Dr., Ellenwood GA 30294 (the “Ellenwood Address”). The process server made two unsuccessful attempts at personal service before leaving...

Excerpt: ...tion is granted. Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Ellard v. Conway (2001) 94 Cal.App.4 th 540, 544. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Id.; see also OC Interior Servs., LLC v. Nationstar Mortg. (2017) 7 Cal.App.5 th 1318, 1330-31. Under section 473(d), the court may set as...

Excerpt: ...matter of law by the statute of limitations, the plaintiffs appear to concede that the construction was completed in and around 2012 and that they did not purchase the property until 2017. Without more, an allegation that they only discovered the construction defects within the past three years would be insufficient to allege a delayed discovery because it leaves open the distinct possibility that the cracks or other damage was observable and kno...

Excerpt: ...(d)(2) current “means that the address was confirmed within 30 days before the filing of the motion to be relieved.” An internet title search, by itself, is insufficient to demonstrate that the address is confirmed as current. If the client's current address is not known, service must be made on the clerk of the court pursuant to Code of Civil Procedure section 1011(b). See Cal. Rule of Court 3.162(d). Further, Counsel has submitted a proof o...

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: ... jurisdiction, the burden of proof is on the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. Kroopf v. Guffey(1986) 183 Cal.App.3d 1351. Plaintiff contends that the Court has specific personal jurisdiction over the moving defendant. According to a recent decision of the United States Supreme Court, for a state court to exercise specific jurisdiction, the suit must arise out of or relate to the defendant's cont...

Excerpt: ...elaware. On March 6, 2018, HCR ManorCare filed a notice of stay. At the time that the notice of stay was filed, plaintiffs had several pending motions to compel discovery on-calendar, including motions to compel further discovery responses against defendant Manor Care of Fountain Valley, CA LLC, that were set for hearing on March 14, 2018, and motions to compel further discovery responses against defendant Heartland Employment Services, LLC, that...

Excerpt: ......

Excerpt: ...t,” including claims for harassment. (Ibid.) Defendant also presents evidence that it made a demand upon plaintiff's counsel to arbitrate the dispute on 12/14/17, to which plaintiff did not respond. (Moss Decl., Ex. C.) Plaintiff raises two basic arguments as a defense to enforcement of the arbitration agreement. First, she argues that defendant waived its right to arbitrate by the delay in seeking arbitration. Second, she claims that the arbit...

Excerpt: ...breach of any term of the lease or frustrated Pltfs' ability to receive a benefit legitimately expected from the lease agreement;Sustain with 10 days leave to amend; 2 nd, 3 rd causes of action [intentional and negligent misrepresentation]: No promise is specifically alleged; Pltfs allege a ‘scheme' to make Pltfs pay for removal of underground storage containers but this ‘scheme' did not work; It is unclear what action Pltfs took in reliance ...

Excerpt: ...uption'; CD has failed to allege any facts demonstrating ‘interference' – no interruption shown in its relationship with its third-party data provider; Sustain with 10 days leave to amend; 7 th cause of action [fraud]: CD has adequately alleged this cause of action; The allegations in the Complaint are sufficient to show circumstantial evidence of fraudulent intent; Overrule; 8 th cause of action [B&P 17200]: CD is seeking ‘non-restitutiona...

Excerpt: ...es on the ground that motion is procedurally defective in at least 5 related ways. 1. Defective Notice of Motion and Separate Statement First, Plaintiff's notice of motion is defective because it fails to properly identify the specific causes of action, defenses, issues, or claims being addressed. (CRC 3.1350 (b).) Second, Plaintiff's separate statement is defective because it fails to repeat verbatim the causes of action, defenses, issues and cl...

Excerpt: ...ndant inadvertently failed to attach the signature page to the Declaration filed with the Court.] 2. Overruled 3. Overruled Motion for Summary Adjudication/Judgment: Defendant moves for summary adjudication of the first, second and third causes of action on the ground that Plaintiff cannot establish she was a qualified individual that could perform the essential functions of the position with accommodation. Plaintiff, in opposition submits eviden...

Excerpt: ... a personal representative, the plaintiff shall join the personal representative as a defendant. [¶] (b) If a person required to be named as a defendant is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative: [¶] (1) The plaintiff shall state these facts in an affidavit filed with the complaint. [¶] (2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as de...

Excerpt: ...s uncertain, because ambiguities can be clarified under modern discovery procedures. [Citation.]” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4 th 612, 616.) The court finds the facts pled as to these causes of action are not so uncertain that Defendant cannot reasonably respond. Third Cause of Action (Breach of Warranty Against Westcoat): “ ‘ “It is a settled rule of the law of agency that a principal is responsible to third ...

Excerpt: ...Opposition to Plaintiff Risi Companies LLC Motion for Attorney Fees and Costs (Opposition 2-21-18), 8:15-9:18.) Initially, the Opposition contends that Plaintiff did not comply with ¶ 26(A) of the contract that conditions the recovery of attorney fees on engaging in mediation before commencing an action. ¶ 26(A) of the contract states, in part, “If for any dispute, or claim to which this paragraph applies, any party (i) commences an action wi...

Excerpt: .../or (h). (See also Mendoza v. Regents of the University of California (1978) 78 Cal.App.3d 168, 176, FN3.) (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal. App. 4th 1475, 1482.) Defendant contends Plaintiff's claims in this action are barred by res judicata because his claims in the administrative hearing arise out of the same issue – his termination – and the factual allegations are the substantially the same. Defendant se...

Excerpt: ...ction. The court, after notice to the adverse party shall grant upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint to assert such cause if the party who failed to plead the causer acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” It appears that the Cross-Defendants' claims in the proposed Cross-Complaint arise out of same set of c...

Excerpt: ...es on the ground that motion is procedurally defective in at least 5 related ways. 1. Defective Notice of Motion and Separate Statement First, Plaintiff's notice of motion is defective because it fails to properly identify the specific causes of action, defenses, issues, or claims being addressed. (CRC 3.1350 (b).) Second, Plaintiff's separate statement is defective because it fails to repeat verbatim the causes of action, defenses, issues and cl...

Excerpt: ... expert witness designation after he substituted in as Defendant's counsel of record; (3) information was served on all other parties; (4) Ms. Pearson will be available for deposition; (5) since the trial date has now been vacated, it appears Plaintiff will not be prejudiced; and (6) Defendant attempted to resolve the issues before seeking relief. Defendant to give notice. ...

Excerpt: ...led 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. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the pet...

Excerpt: ...ion of resources, preventing the trial court from being cast as a tacit advocate for the moving party's theories by freeing it from any obligation to comb the record and the law for factual and legal support that a party has failed to identify or provide.” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4 th 927, 934.) Plaintiff's Memorandum of Points and Authorities refers to Code of Civil Procedure sections 2020.010,...

Excerpt: ...bjection to a particular request is without merit. [¶] (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party...

Excerpt: ... to produce writings. [¶] (3) An objection to the particular interrogatory.” Code of Civil Procedure section 2030.220, provides, “(a) Each answer in a response to interrogatories shall be as complete and straight forward as the information reasonably available to the responding party permits. [¶] (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. [¶] (c) If the responding party does not have...

Excerpt: ...fendant contends that the Family Law Court resolved the ownership dispute of the subject real property (i.e., determined that Plaintiff has no ownership interest in the same), and therefore seeks to dissolve the stay order. Defendant Bryant provides evidence showing that the Family Law Court issued a Notice of Entry of Order on 1-2-18 finding that Plaintiff has no ownership interest in the subject real property (9 Beachcrest, Newport Coast, CA 92...

Excerpt: ...ave prevailed on its motion to strike is an essential prerequisite to an award of attorney fees and costs pursuant to section 425.16, subdivision (c)(1).” (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4 th 1447, 1457.) The Court finds that the 2 nd COA (breach of fiduciary duty) does arise from protected activity. Here, the 2 ndCOA for breach of fiduciary duty arises out of litigation-related conduct because it is based on Moving Defendant'...

Excerpt: ... Set One 3. Form Interrogatories, Set Two 4. Requests for Production of Documents, Set One The Court also grants Defendant's unopposed motion to deem Requests for Admissions, Set One, admitted. The Court orders Plaintiff to provide verified responses to (a) Form Interrogatories, Set One; (b) Special Interrogatories, Set One; (c) Form Interrogatories, Set Two; and (d) Requests for Production of Documents, Set One, all within 20 days of notice of t...

Excerpt: ... title to the property in dispute. . . .' The plaintiff may recover only upon the strength of his or her own title ... and not upon the weakness of the defendant's title.'” Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195. Although Plaintiff Weinada obtained a constructive trust over the title of the Trotter property, that Judgment was not binding on Defendant Tianwu.Therefore, the prior Judgment does not have res judicata or collateral estop...

Excerpt: ..., subd. (b).) In addition, tort damages are not recoverable for economic losses unaccompanied by physical damage. (Aas v. Super. Ct. (2000) 24 Cal.4th 627; Erlich v. Menezes (1999) 21 Cal.4th 543, 550–554.) Defendants to give notice. ...

Excerpt: ...ntion raised.”'” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1251 [declining to apportion plaintiff's attorney fees claim-by- claim].) “‘“[E]mployment discrimination cases, by their very nature, involve several causes of action arising from the same set of facts.”'” (Ibid.) Here, plaintiff presented related workplace discrimination claims and recovered $176,000. He should recover all of his reasonably necessary f...

Excerpt: ... admissions by Defendant as to the amounts owed by it under each invoice. Defendant denied the amounts owed. At trial, the jury found for Plaintiff and awarded it the amounts sought under each invoice. If a party “fails to admit” the genuineness of any document or the truth of any matter when requested to do so, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party...

Excerpt: ...llage Association (“WVA”) to Plaintiff John Sanderson's Second Amended Complaint (“SAC”) is overruled. 1st COA - Negligence WVA contends Plaintiff's negligence claim is barred by the two-year statute of limitations because Plaintiff's claim accrued when the board denied his request 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...

Excerpt: ...ed to judgment as a matter of law.” Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at p. 851. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine I...

Excerpt: ...omplaint within 14 days. 2nd-3rd causes of action, negligence per se. This is an evidentiary presumption, not a cause of action. (See Quiroz v. Seventh Ave. Center(2006) 140 Cal.App.4th 1256, 1286.) 4th-5th causes of action, gross negligence. “California does not recognize a distinct common law cause of action for gross negligence apart from negligence.” (Jiminez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn. 3.) 6th cause ...

Excerpt: ...not proper in the regular conduct of the proceeding. (Barquis v. Merchants Collection Association (1972) 7 Cal.3d 94, 103-104; Cross-Compl. ¶¶ 54-57, 59.) Sixth Cause of Action (Malicious Prosecution). The Cross-Complaint does not adequately plead facts showing any action was commenced against the senior Cross- Complainant Michael Webster. (Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782.) Ruling Motion 2: Cross-Defendant Cate's motion to strik...

Excerpt: ...ions Code Sections 309, 7231 and 5047.5. At the outset, it should be noted that the Members have cited to the wrong Corporations Code sections. WVA is an unincorporated association, not a corporation. (Compl. at ¶ 7.) The provisions affecting unincorporated associations, such as WVA, are found under Title 3 of the Corporations Code, beginning with section 18000. As under common law, a member, director, officer, or agent of an association is not ...

Excerpt: ...nce that extrinsic fraud exists in the form of a falsified proof of service of summons. Defendant Henry was not evading service, was never served, and did not learn about the suit until 07/2017 when a levy was placed on his personal bank account. He then retained an attorney and moved to set aside default within a reasonable time. Plaintiffs are not entitled to the presumption of facts stated in the proof of service. (Evid. Code, § 647.) Further...

Excerpt: ...Group 2018) § 5:420.) Obtaining relief under that statute does not require plaintiff to re-serve. It merely allows defendant “to defend the action” (Code Civ. Proc., § 473.5, subd. (c)) by way of an answer or other response that must accompany the motion. (Code Civ. Proc., § 473.5, subd. (b).) Defendant shall give notice. ...

Excerpt: ...already incurred. On March 17, 2017, the court granted Defendant Briggs' motion for appointment of a discovery referee and ordered that the costs of the Discovery Referee to be shared equally by the parties. Since then, Plaintiff has conducted significant third party discovery, which resulted in at least three third party discovery motions, motions for protective orders, and hearings with the Discovery Referee which did not involve and were not o...

Excerpt: ...s that some discussions had occurred in February 2018, and there had evidently been some progress toward reaching an agreement at that time. (Ettinghoff Decl. ¶ 14, and Ex. B.) Why those efforts did not result in resolution of the discovery dispute is not addressed, and it does not appear that renewed efforts were made prior to or after the filing of this motion. Counsel for the parties are thus ordered to further meet and confer as to the subpo...

Excerpt: ...rer rather than a motion to strike under Code of Civil Procedure section 436: “[M]atter that is essential to a cause of action should not be struck and it is error to do so.” (Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) A demurrer should have been brought. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [failure to state facts sufficient to state a cause of action is ground for general demurrer, but not for a Code ...

Excerpt: ...t prior to the May 21, 2018 trial date, even with a reduced-notice schedule, or be prepared for expert discovery and trial. There have been no prior continuances and it has been less than a year since the first Defendant appeared in this case in June 2017. The court finds that the interests of justice in continuing trial outweigh any purported prejudice in scheduling expert testimony. Finally, Plaintiffs acknowledge that Moving Defendant should b...

Excerpt: ...#123], to provide verified responses to each of the defendant's (1) Special Interrogatories (Set One), and each of the defendant's (2) Demand for Production of Documents (Set One). In addition, this is the hearing of the three Defendants' Motion to deem their jointly-propounded (3) Requests for Admissions (Set One) admitted against the Plaintiff. The Defendant(s) previously withdrew a fourth Motion to Compel, regarding Form Interrogatories. The m...

Excerpt: ...after assumed his new role as a senior executive. Plaintiff now no longer wants to honor his agreement to submit disputes to arbitration claiming that he did not understand what he was doing, and that the arbitration agreement is unconscionable. On a motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent t...

Excerpt: ...17; as of August 2, 2017, 4 putative Class Members had opted out. (The current total number of opt- outs is 5, per Ex. A to the Martinez Decl.) Thereafter, Defendant turned over a class list with names and addresses only, refusing to provide phone numbers. At the 1/10/18 Status Conference, the Court ordered Defendant “to provide the putative class member phone numbers to plaintiff no later than 1/31/18.” (ROA 86) Alternatively, Defendant was ...

Excerpt: ... that agreement. As one authority has stated, there are six theories by which a nonsignatory may be bound to arbitrate: ‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.'” Young Seok Suh v. Superior Court(2010) 181 Cal.App.4th 1504, 1513. “It is well established that a non-signatory beneficiary of an arbitration clause is entitled to require arbitratio...

Excerpt: ...ment. (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 844.) “It is essential to the existence of a contract that there should be: [¶] 1. Parties capable of contracting; [¶] 2. Their consent; [¶] 3. A lawful object; and [¶] 4. A sufficient cause or consideration.” (Civ. Code, § 1550.) “Agency ‘can be established either by agreement between the agent and the principal, that is a true agency [citation], or ...

Excerpt: ...ve order to enforce automatic stay is deemed a motion for stay under the implicit power of the court. Defendants' motion satisfactorily seeks relief to stay any discovery proceedings pursuant to CCP§1281.4. The court finds that all legal proceedings, including discovery propounded by Plaintiffs were stayed while the motion to compel arbitration was pending. Twentieth Century Fox Film Corp. v. Sup.Ct. (2000) 79 Cal.App.4th 188, 192; Seidman & Sei...

Excerpt: ...� 2031.310, subd. (b)(1).) “[A]bsent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing good cause simply by a fact-specific showing of relevance.” (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.) Here, Defendant has shown good cause to seek the accounting records of Professional Home Cinema (“PHC”). The Second Amended Cross-Complaint (“SAX-C”) includes alleg...

Excerpt: ... Bank Regarding Wellpoint Management Company is granted. Production must take place within 30 days after notice. The documents sought are relevant to the subject matter of the action or are reasonably calculated to lead to the discovery of admissible evidence. Good cause exists to compel production. Plaintiff's request for monetary sanctions against Wellpoint Management Company is granted in the amount of $1,200, payable within 30 days. The Motio...

Excerpt: ...the MPAs refer intermittently to FROGS, the attached Teague Decl. states that relief is sought only as to the SROGs and RFPs, and that FROG responses were provided on 3/2/18. The Court has thus treated this motion as one to compel responses only to the SROGs and RFPs. The evidence presented demonstrates that the SROGs and RFPs were served on 1/11/18, and that despite two extensions, responses were never served. (Teague Decl. ¶¶ 3-9; MPAs pp. 3-...

Excerpt: ...he defendant, and make a prima facie showing of the elements of that cause of action, based on evidence that would support a ruling in the plaintiff's favor if no controverting evidence is presented. (ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 613; see also Yelp Inc. v. Superior Court of Orange County (2017) 17 Cal.App.5 th 1, at *13-14.) The statements at issue must also be identified with specificity. (ZL Technologies, supra, ...

Excerpt: ... c/o Radnet Management, Inc. (Billing); (5) UCI Medical Center; (6) UCI Medical Center Billing Office; (7) UCI Medical Center (X-Ray); (8) Beverly Radiology Medical Group c/o Radnet Management, Inc.; (9) Beverly Radiology Medical Group c/o Radnet Management, Inc. (Billing) Counsel to advise the Court regarding a protective order to keep all information confidential and limited for use in this litigation only, with Defendant's private and privileg...

Excerpt: ...pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” State Farm failed to meet its burden of proof to show that Plaintiff cannot prove any of the causes of action. Plaintiff has s...

Excerpt: ...the car wash bond periods involved here. The tentative ruling is to continue the hearing on Cross-Complainant American Contractors Indemnity Company's Motion for Leave to File an Amended Cross-Complaint to May 4, 2018 at 10:00 a.m. The moving papers failed to fully comply with CRC Rule 3.1324, the opposition noted the failure, the reply papers have purported to cure the failure, but plaintiffs have not had an opportunity to respond to the attempt...

Excerpt: ...udge hearing all of the actions for all purposes in a selected site or sites will not promote the ends of justice, taking into account whether the common question of fact or law is predominating and significant to the litigation, the convenience of parties, witnesses and counsel, the relative development of the actions and the work product of counsel, the efficient utilization of judicial facilities and manpower, the calendar of the courts, the d...

Excerpt: ...rbitration. The Court GRANTS Defendants' motion, noting that Defendants have agreed to waive the Limitations Period in Section 2 of Article VII of the Collective Bargaining Agreement. Defendant's request (ROA 117) for judicial notice is GRANTED. Plaintiff's request (ROA 129) for judicial notice is GRANTED. Plaintiff's objection (ROA 143) to the evidence Defendants submitted on reply, consisting of the prior February 1, 2012 to January 31, 2015 CB...

Excerpt: ...a College Faculty Assoc. v. Santa Monica Community College District (2015) 243 Cal.App.4th 538, 544-45.) Even if the court were to consider Plaintiff's illegality defense, this case is distinguishable from South Bay Radiology Medical Associates v. Asher (1990) 220, Cal.App.3d 1074. In that case, the court found the entire transaction to be illegal. In this case, on the other hand, there is no contention that the bylaws requiring arbitration are i...

Excerpt: ...CCP Section 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” The law favors a trial on the merits, and doubts in applying Code of Civil Procedure Section 473 are resolved in favor of the party seeking relief from default. (Au–Yang v. Barton (1999) 21 Cal.4th 958, 963; Iott v. Franklin (1988) 206 Cal.App...

Excerpt: ...e record reflects -- and it is not disputed -- that both Defendant and Plaintiff have their principal place of business in Los Angeles, they are both headquartered in Los Angeles, and the contract that is the subject of this action was executed in Los Angeles. Additionally, that contract contains a dispute resolution provision stating that “if the mediation is unsuccessful, the matter will be resolved in the appropriate California State Court i...

Excerpt: .../Newport Care Medical Group; Medical records of Newport Beach Surgery Center; Medical records of Menaka DeSilva, M.D.; Medical records of Ryan S. Labovitch, M.D.; and Medical records of David A. Gehret, M.D. relating to Plaintiff Liana Lytal and opined that Defendant Newport Care Medical Group, Inc. complied with the applicable standard of care at all times and no act or omission on the part of Defendant Newport Care Medical Group, Inc. caused or...

Excerpt: ...llegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (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 n...

Excerpt: ...Yessenia's”) and Jaime Silva. Responding Party Plaintiff David Arrighi dba Black Diamond Concrete. Ruling Motion 1: Defendant Wesco's Motion to Determine Good Faith Settlement is CONTINUED to 5/14/18 at 10:30 a.m. in Department C26for the parties to address the effect of the First Amended Complaint on the negotiated settlement. Moving party to give notice. Ruling Motion 2: Defendant Wesco's Motion for Summary Judgment is denied. Defendant Wesco...

Excerpt: ... monetary sanctions at hearing on the Defendant's Motion for Protective Order is also GRANTED. The defendants are ordered to pay the plaintiffs $1,732.00 in monetary sanctions within 15 days of this order. Plaintiffs' Motion to Compel/Contempt: As indicated in the 3/5/18 Minute Order, Plaintiffs' Deposition Notices included the intent to videotape the depositions but the defendants did not timely object to the videotaping of their depositions. Th...

Excerpt: ...a proper subject for judicial notice. California Public Policy In California, an employee's covenant not to compete with his or her employer is unenforceable. B&P Code § 16600 (“every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”); Edwards v. Arthur Andersen (2008) 44 Cal.4 th 937, 945. “California has a strong interest in protecting its employees from no...

Excerpt: ... causes of action, with 30 days' leave to amend. First-Third Causes of Action (Breach of Fiduciary Duty, Breach of Contract, Breach of Implied Covenant). The Court previously overruled Defendant's demurrer to these causes of action. The new allegations in the TAC do not affect the court's prior ruling or analysis. Fourth Cause of Action (Intentional Interference with Contractual Relations). This claim is not preempted by CUTSA to the extent it pl...

Excerpt: ...e plaintiff or excuse for nonperformance, breach by the defendant and damages.” First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745. Plaintiff alleged sufficient facts to state a cause of action in the first amended complaint. FAC, page 5. The FAC does not show that a breach could not occur in 2017. The agreements attached as Exhibit A to the FAC include automatic renewal provisions. FAC, Exhibit A, page 2, section 10, page 3,...

Excerpt: ... of limitations here is probably CCP §340.5. This statute applies to all claims – regardless of labels – which relate in any way to the delivery of patient health care. Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4 th 75, 88-89; Nava v. Saddleback Memorial Medical Center (2016) 4 Cal.App.5th 285, 287. Plaintiffs contend that defendant hospital had an “extra duty” to watch over decedent given his weakened condition, which...

Excerpt: ... a letter to the CA State Bar with a copy of the $50 application fee made out to the State Bar of California. 2) Attorney Carolyn R. Raines' application for admission pro hac vice is CONDITIONALLY GRANTED if attorney Raines files evidence of proof of service of the Application upon both Broker Solutions, Inc. dba New American Funding and the State Bar of California in compliance with Rule 9.40(c)(1) and Code of Civil Procedure 1013(a), either bef...

Excerpt: ... Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at p. 851. Where a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. Code Civ. Proc. § 437c (p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal. App. 4th 383, 388. If p...

Excerpt: ...itne to produce all records in his possession or control regarding plaintiff Jesse Castillo Ruiz at the same time and place as his deposition.” But the Subpoena, attached as Exhibit A to the Declaration of Kevin R. Jolly, Esq., is not a business records subpoena. It requests no documents; it is for appearance only. There are no categories of documents identified in the Subpoena. In addition, there are no categories of documents identified in th...