Excerpt: ...tson v. Osman (1986) 185 Cal.App.3d 308, 315 [disapproved on other grounds in Woods v. Young(1991) 53 Cal.3d 315].) Defendant to give notice. ...

Excerpt: ...out of the employment, the employee or the employee's dependents may receive compensation or death benefits from the employer even though the cause is the wrongful act of a third party. However, a right of action for damages also arises against the third-party tortfeasor. (Lab. Code, § 3852; Lamoreux v. San Diego & Arizona Eastern Railway Co. (1957) 48 Cal.2d 617, 625.) Here, the court has already determined on summary judgment that AAM committe...

Excerpt: ... Unpaid Overtime; (2) Unpaid Minimum Wages; (3) Non-Complaint Wage Statements; (4) Unpaid Business Expenses; (5) Wages not timely paid on termination; (6) Unlawful Wage Deductions; (7) Failure to Provide Seating; (8) PAGA claims; and (9) Violation of B&P Code § 17200. All of these claims stem from Plaintiff's allegations that she was not compensated for off-the-clock (“OTC”) time that she spent working at home and going through the bag-check...

Excerpt: ...irectly relevant to the issue of possession may be raised as a defense in an unlawful detainer action. See, Barela v. Superior Court (1981) 30 Cal.3d 244, 249. Second, Civil Code § 2924.11(a) authorizes a party to bring an action to seek an injunction to enjoin a violation of Section 2924.11, but such action must be brought before a Trustee's Deed Upon Sale has been entered. A Trustee's Deed Upon Sale has been entered against the subject propert...

Excerpt: ...d in an individual capacity is entitled to pursue remedies in both capacities.” (Denevi v. LGCC (2004) 121 Cal.App.4th 1211, 1221-1222; see Goles v. Sawhney(2016) 5 Cal.App.5th 1014, 1018.) “An action is deemed derivative if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation ...

Excerpt: ... which indicate that defendant might be prejudiced by nonjoinder . . .” Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 870. Motion to Strike Portion of First Amended Complaint: The Motion by Defendant Zaky to Strike Portion of First Amended Complaint is DENIED. Defendant moved to strike Paragraph 23, which stated, “Plaintiff is entitled to all reasonable costs of collection, as related to the unpaid balance due and owing by Defendants.” Cod...

Excerpt: ...sts to establish that they are excessive or not reasonable. See, Lunada Biomedical v. Nunez (2014) 230 Cal.App.4 th 459, 488. The court finds that the $4,527.50 in challenged legal services sufficiently related to the surety action and therefore recoverable. Finally, the claimed $3,588.75 in legal services to analyze the reply, conduct legal research, and draft the reply and supporting reply declaration are reasonable. Moving party to give notice...

Excerpt: ... suffering an involuntary loss of counsel at this time. It appears the Plaintiffs are adding counsel. (See Reply Brf.). This does not reflect the sort of exigent circumstances that case law illustrates as supporting a trial continuance in relation to the substitution of counsel. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 196 (where attorney abandoned the client shortly before trial, and plaintiffs sought to bring in new counsel, trial continu...

Excerpt: ...confer requirement for demurrers, was implemented to limit the involvement of the Court, and to encourage the parties to resolve the issues. (CCP §430.41(a); 2015 California Senate Bill No. 383, California 2015-2016 Regular Session). The Court is of the view that there is scope for resolution of some issues among these parties, and for amendment of the pleading. (See Reply Brief). This hearing is continued for the parties to meet and confer. Hea...

Excerpt: ...ion for Judgment on the Pleadings against Savage Enterprises, Inc.'s entire Cross-Complaint and in the alternative against each and every individual cause of action is Granted with 15 days leave to amend. The Cross Complainant Savage Enterprises, Inc.'s has indicated that it intends to amend the Cross-Complaint to remove the current four causes of action and replace them with a single cause of action for Declaratory Relief. This is the first amen...

Excerpt: ...d the Court that Mr. Meehan had passed away earlier that day. (11/20/2015 minute order.) But on a party's death, this estate is not automatically substituted in for that party. A judgment cannot be given for or against a decedent until the personal representative has been made a party by substation. (Johnson v. Simonelli (1991) 231 Cal.App.3d 105, 107 fn. 1.) An application to, and order by, the court is required. (See Code Civ. Proc., § 377.32;...

Excerpt: ... notice to the class. Service of the moving papers by mail on March 21, 2018 provided defense counsel with insufficient notice of this hearing (only 16 court days, without the five additional days per CCP §1005(b)). Notice also was less than 28 calendar days as required for a provisional certification request in conjunction with settlement under CRC Rule 3.764(c)(1). Plaintiff also must provide the LWDA, the real party in interest as to the PAGA...

Excerpt: ...evised Notice to Class to the “Claims Administrator” should be changed to the “Settlement Administrator” to avoid confusion to Class Members. The Notice to Class (on p. 4) must reflect that the court will resolve any disputes not otherwise resolved by the Settlement Administrator and the parties. The court needs a brief explanation of the reasons for the increase in plaintiffs' attorneys' cost ceiling from $21,000 to $24,000. A realistic ...

Excerpt: ...d have been set forth in the lawsuit, if amended” must be deleted from the second paragraph of the Release section on p. 3 of the Notice to Class. Because attorney Marcus S. Loo's new declaration reflects (at p. 2, para. 4) that the Administrator is accepting $5,000 as the maximum Administrator fee to be paid, p. 2 of the Notice to Class should also reflect that number, rather than the estimate of $7,788.41. The proposed Order Preliminarily App...

Excerpt: ...till finds, that a stay in these civil proceedings, while the Probate matters are resolved, is appropriate to avoid the risk of inconsistent trial court rulings on common issues. The instant Motion for Relief from Stay is therefore Denied. The Request for Judicial Notice is Granted, as to the existence of and legal effect of the documents presented therein. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundati...

Excerpt: ...te the 60–day deadline. (Id. at 682; see also Hewlett-Packard Company v. Oracle Corporation (2015) 239 Cal.App.4th 1174, 1189 [in the absence of some event which has reopened the 60–day period, the trial court cannot abuse its discretion by refusing to hear an untimely motion].) Here, no explanation has been offered to excuse the tardy filing, and Plaintiff claims to have incurred additional litigation costs in the interim. The Motion could t...

Excerpt: ...stitutes a failure to state a cause of action. 2. Libel Per Se: As pled, it appears the alleged defamatory statements were made after a default was entered but before any default judgment had been entered. Without any judicial findings of fraud, statements made in reliance solely on the entry of default are actionable. 3. Defamation: Same as Second Cause of Action. 4. Declaratory Relief: This claim is identical to the defamation count which provi...

Excerpt: ... I. Whether CHOC complied with the requisite standard of practice CHOC's staff of nurses and non-physicians met the standard of care in treating Plaintiff DENIED on this issue. CHOC carries its initial burden of production to make a prima facie showing, by a preponderance of the evidence, that CHOC's staff met the standard of care in Feb. 2015 and specifically during the surgery on 2/23/15. (SS at Facts 1-21, Exs. A-D.) In support, CHOC submits t...

Excerpt: ...range Coast Memorial Medical Center, Kaiser Permanente, Huntington Beach Hospital, and Sea Cliff Healthcare and opined that Defendant Arvind Nirula, M.D complied with the applicable standard of care at all times and no act or omission on the part of Arvind Nirula, M.D caused or contributed to Ms. Garcia's death. Brown Dec. ¶¶ 8-10. Dr. Brown further noted that although Arvind Nirula, M.D is associated with California Heart Associates, all of Ms...

Excerpt: ...on must demonstrate that it is entitled to summary judgment on both of Plaintiffs' causes of action. Flatiron has not done so. A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff's claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling...

Excerpt: ... “Emily Graves”, with whom MP's counsel has communicated, is an authorized agent for “Vape It Up.” (See Corp. Code § 17701.16, CCP §416.10 et seq.; CCP §2020.220(a)(2). See also CRC 3.1346.) The court notes, an entity called Vapeitup LLC or Vape It Up LLC has been named in certain pleadings in the case. Would it be the same entity as the deponent here? If so, in information that is publicly available on the website of the California Se...

Excerpt: ...determining whether to issue a preliminary injunction: (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or non-issuance of the injunction. The greater the showing on one, the less must be shown on the other to support an injunction. Ibid. Plaintiff contends that he “and his corporation,” i.e., nominal defendant Ital Pizza, Inc., have the...

Excerpt: ...ufficient evidence to meet its initial burden of showing that cross-complainant cannot prove an essential element of her claim(s) or that Hughes Cione has a complete defense to the claims. Triable issues remain as to material facts 5-9, 17-38, 39-45 and 48-70. Attorney Hughes' declaration in support of the motion purports to authenticate exhibits A through Z (e.g. “[A] true and correct copy of said Charge is being attached hereto and shall be r...

Excerpt: ...aintiff's memorandum and the supporting declaration of attorney Nedda Mehrou and the court did not consider attorney Mahrou an expert in the areas of attorney's fees and/or reasonableness. See, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4 th 1084, 1095. The lodestar calculation (respective hourly rates multiplied by hours worked) provides the total sum of $122,585.65 sought by TUSD. (Reply, 10:19.) The Court reduces that amount on two separate bas...

Excerpt: ...rence The court intends to continue the Case Management Conference 60 days. Notice The plaintiff shall give notice. ...

Excerpt: ...ge in the meet and confer process set forth in Code of Civil Procedure §430.41. That section mandates the “demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Cal. Civ. Proc. Code § 430.41 The declaration filed in connection with this...

Excerpt: ...ction by plaintiff Wyatt. Defendant's challenge to this cause of action is improperly based on extrinsic evidence. Defendant's request for judicial notice is denied. OVERRULED as to the 4th cause of action. Although false imprisonment is an intentional tort because it entails an intentional act resulting in confinement, it can arise through negligence. (Lyons v. Fire Ins. Exchange (2008) 161 Cal.App.4th 880, 888.) The facts pled sufficiently supp...

Excerpt: ...eading stage. Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D. Cal. 2010) 732 F.Supp.2d 952, 958. As to breach of contract, plaintiff Revel failed to attach the residential lease agreement as Exhibit 1 as alleged, but has alleged sufficient facts as to the legal effect of the contract and the nature of the breaches to state a cause of action for breach of contract. Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 126 Cal.4 th 1...

Excerpt: ...so fails to include a statement of the facts constituting the cause of action in ordinary and concise language (Code Civ. Proc., § 425.10), and fails to identify the particular causes of action and who each cause of action is against (Cal. Rules of Court, rule 2.112). Motion to Strike The motion to strike is MOOT. The defendants shall give notice. ...

Excerpt: ...dividual capacity, and then derivatively, and the latter complaint is not necessarily barred. (See Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 222-223 [later derivative complaint not barred].) Although there is a final judgment in the 2014 case, unlike Favila where there was no prior judgment, claim preclusion still does not apply because the claims may involve different primary rights, and some of the alleged bad acts occurr...

Excerpt: ...were in dispute. Plaintiff contends the wrongful conduct was the fact Responding Party instructed the insurance carrier to hold back all attorney fees from the settlement check, (including plaintiff's alleged fees of $83,333.34) despite the fact plaintiff had already agreed to keep defendant's claimed $5,000 lien in his trust account pending an agreement as to the amount of the lien. That act gave defendant an unwarranted advantage over plaintiff...

Excerpt: ...t ORDERS sanctions in the amount of $470.95 for each of the three motions (for a total sanctions award in the amount of $1,412.85) against both the attorney and the defendant. The sanctions shall be paid within 30 days. The plaintiff shall give notice. ...

Excerpt: ...lege that Defendant McMahon, Plaintiff S.P.'s “zero period” instructor at GFHS, “had a policy” of not marking students absent from zero period as long as the students attended on Fridays. TAC ¶¶ 15-16. Plaintiffs allege Defendant Landsiedel, the school principal, knew about McMahon's alleged policy. Id. ¶ 16. Plaintiffs allege that numerous times during the second semester of 2016, after Plaintiff M.D.A. dropped S.P. off at school, S.P...

Excerpt: ...te Statement, Fact Nos. 1-4, 25, 266, 267, 279.) As to the second cause of action for breach of contract, there are triable issues as to the terms of the alleged contract, plaintiff's performance, and breach. (Moving Party Separate Statement, Fact Nos. 23-30 [contract terms], 33-35 [performance and/or excuse for nonperformance, damages], 37, 38 [breach]; Responding Party Separate Statement, Fact Nos. 23, 24, 25 [terms], 31, 34, 303-305, 307, 308 ...

Excerpt: ......

Excerpt: ...opposition) and on 3-22-18 (Exhibit G to opposition). As a result, the motion is moot. The request for a monetary sanction of $3699 is denied. II. Motion to Compel – RFA Defendant moves to compel a further response to the first set of requests for admissions that contains supplemental answers to requests 9, 22, 28, 29, and 30. Plaintiff served a supplemental response on 3-2-18 (Exhibit F to the opposition) and provided supplemental answers to a...

Excerpt: ...endants presented evidence negating any substantial, continuous and systematic contacts with this forum. See, Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4 th 434, at 445. Also, general jurisdiction is now limited to a company's state of incorporation or principal place of business. See, Daimler AG v. Bauman (2014) 571 U.S. 117, 134 S.Ct. 746, 761 to 762 and Martinez v. Aero Caribbean (9 th Cir. 2014) 764 F.3d 1062, 1070. It is undis...

Excerpt: ...move to augment their expert witness list to add Dr. Laura Audell as a retained defense expert pain management specialist. The court has read and considered the briefs, declarations and other evidence submitted in support of and in opposition to Defendants' motions. Defendants submitted with their reply various exhibits that had not yet existed at the time Defendants filed their motions (e.g., transcripts of depositions not taken until after Defe...

Excerpt: ...e of material fact regarding whether they caused plaintiff's alleged injury. Plaintiff's Complaint alleges that the dismissal of the underlying case was due to the fact that defendants withdrew expert designations in the case. (Compl., p. 4.) Defendants present evidence that they designated experts in the case on 02/22/16. (Def.'s Ex. 12.) Defendant Strongin further avers that he did not withdraw the expert designations, and that, to the best of ...

Excerpt: ...enting, allowing, assisting, conducting, permitting, or in any way granting authority to make any use of the Property, or any other location in the City of Huntington Beach, to dispense or distribute marijuana and/or any products containing marijuana;..” (Proposed Order, 2:14-17) It should read: The Court granted Plaintiffs preliminary injunction prohibiting “Leasing, renting, allowing, or in any way granting authority to make use of the prem...

Excerpt: ...ued Terrazas, its former employee, and others on August 22, 2016, alleging that Terrazas and others embezzled from Avenal and otherwise misused Avenal funds. Cross-Defendants Yuan Hong Taiwan Enterprises (Yuan Hong) and Neoteric Entertainment, Inc. (Neoteric) also sued Terrazas the same day based on similar allegations. Yuan Hong alleges in its complaint that Cross-Defendant Reggie King is Yuan Hong's principal. Cross-Defendants contend Terrazas'...

Excerpt: ...f to set aside this Court's order dismissing the action. Since defendant agreed to settle, and has now reneged on that agreement, the dismissal ought to be set aside. The question then remains what to do with the case. Plaintiff wants to re-open everything and go after the restaurant owner personally because he feels that earlier representations regarding the restaurant's solvency, liquidity and/or insurability were false. This plaintiff cannot d...

Excerpt: ...ive order has been withdrawn and taken off calendar, and thus, any alleged procedural defects with respect to it are moot. The court declines to consider any new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey(2013) 218 Cal.App.4th 1522, 1537-1538.) Moving party to give notice. ...

Excerpt: ...ice of summons for lack of 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. According to the recent case of Bristol-Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773, 1779-1780: Since our seminal decision in International Shoe, our decisions have recognized two types of personal jurisdiction: “general” (sometimes...

Excerpt: ... POS in the court's file. The Declaration of plaintiff's father, Harold Beverly, confirms that the address where the plaintiff was served by certified mail is the last known address for the plaintiff. The declaration also confirms that the declarant has not had verbal or physical contact with the plaintiff since January 2016. The plaintiff's father's declaration establishes that plaintiff cannot be located despite diligent efforts. Therefore, the...

Excerpt: ...me. There are two subpoenas at issue, one to defendant Michael Cannivet and the other to the custodian of records for non-party Silverlight Asset Management. Both request production of the same thing: “Documents sufficient to identify clients known to Silverlight Asset Management, LLC to have formerly been clients of Palo Capital, to which Silverlight Management, LLC provided investment advisory services, at any time after December 2, 2016.” ...

Excerpt: ...033.290(c).) The parties agreed to extend the statutory deadline to file the instant motions to 12-22- 17. (Ex. F to respective motions.) However, the motions were not filed until 12-28-17. A party seeking to compel further responses to discovery must file the motion within the statutory deadline, or its right to do so is waived; a court is without jurisdiction to do anything but deny the motion if filed after that time, even in the absence of wr...

Excerpt: ...rgues correctly that the attorney-client privilege does not apply to physical evidence collected by counsel, because it is not a communication from client to counsel or vice versa, but a physical object transmitted to the attorney. (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176-177.) Under Suezaki the court must determine whether the work product privilege applies. And even if it were to apply, the work product privilege is not absolute, so...

Excerpt: ...ust 2014 that are in the possession, custody or control of these defendants. As to RFPD Nos. 1 and 2, the court exercises its discretion and sets an evidentiary hearing for 5-7-18, at 9:30 a.m., in Department C-33.Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. The court will hear evidence, including live witnesses, on the following issues: (1) whether an implied attorney-client relationship arose between plaintiff Andrew Oshay as Tru...

Excerpt: ...ust 2014 that are in the possession, custody or control of these defendants. As to RFPD Nos. 1 and 2, the court exercises its discretion and sets an evidentiary hearing for 5-7-18, at 9:30 a.m., in Department C-33.Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. The court will hear evidence, including live witnesses, on the following issues: (1) whether an implied attorney-client relationship arose between plaintiff Andrew Oshay as Tru...

Excerpt: ...ss and overbreadth. For the following reasons, Plaintiff's motion is granted in part and denied in part. Defendant hired attorney Michael Robbins and his firm EXTTI, Inc. “to provide limited legal services in the form of a workplace investigation” related to Plaintiff's allegations. Robbins Decl. ¶¶ 2, 5-8 & Ex. A. Defendant contends that the attorney-client privilege shields all of the information and documents sought by Requests for Produ...

Excerpt: ...dant Nu Flow America, Inc., for installation of cured in-place pipe (“CIPP”) restoration process for repair of potable water copper piping via epoxy relining on plaintiffs' property. As noted, plaintiffs are both self represented, however plaintiff Erin Chwialkowski did not sign the complaint. Additionally, she did not sign the 02/08/18 Amendment to Complaint (Doe 1) identifying Nu Flow America, Inc., as a DOE defendant. Pursuant to CCP § 12...

Excerpt: ...the mediation on March 6, 2018, but that the mediation is not concluded as Defendants are to provide Plaintiff with certain financial information and the parties are to meet telephonically with the mediator on 3/19/18. (Id., ¶11.) Accordingly, the Court ORDERS the parties to agree on mutually agreeable dates for the property inspection and depositions as they previously agreed to do in their 2/9/18 email exchanges to occur within the next 30-cal...

Excerpt: ...985) 38 Cal.3d 18, 30; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288-1289.) Directions to Self-Represented Party (Ms. Galian) The Court orders Ms. Galian to include a proof of service with future papers that are filed with the court. A form of Proof of Service-Civil is available at the website of the California Courts (see http://www.courts.ca.gov/forms.htm). Further, Ms. Galian is directed to...

Excerpt: ......

Excerpt: ...ts' alleged misconduct, both as to the Onda and Plata properties. Defendants insist that Plaintiff must plead more detailed evidentiary facts, however Plaintiff is only required to plead ultimate facts. B. 2 nd COA: Fraud and Deceit -- Intentional OVERRULED on this ground. The court finds that Plaintiff has sufficiently pled actual and justifiable reliance on Defendants' fraudulent misrepresentations. As a practical matter not much is required to...

Excerpt: ...es 5 causes of action for violations of: 1. CC 2923.55 2. CC 2923.6 3. CC 2923.7 4. CC 2924.12 5. Bus. & Prof. Code 17200 (Unfair Business Practices) A. 2 nd COA: CC 2923.6 OVERRULED on this ground. Under CC 2923.6 (c), once a borrower has submitted a complete application for a first lien loan modification, the defendant may not record a notice of default or notice of sale, or conduct a trustee's sale, while the application is still pending. Doin...

Excerpt: ...ting of summary judgment and awarding of attorneys' fees to the defendant. Thus, the defendant was the responding party on appeal, and the Court of Appeal affirmed both aspects of the appeal. As the party moving for an award of fees, the prevailing defendant seeking fees and costs bears the burden of establishing entitled to an award and documenting the appropriate hours expended and hourly rates. Christian Research Institute v. Alnor (2008) 165 ...

Excerpt: ... and its counsel, payable within 30 days. Plaintiff served the set of form interrogatories on August 18, 2017 and defendant served the response on September 19, 2017. The parties agreed to put the proceedings, including discovery, on hold while they explored mediation, and plaintiff's counsel obtained several extensions to bring motions to compel, the last one being through March 12, 2018. Although the moving papers indicate that both interrogato...

Excerpt: ...has been traveling for a month and has not had time to prepare a formal report. Defendant's counsel asks for more time to allow Dr. Roth to prepare his report and to allow counsel to prepare a declaration to support Plaintiff's Opposition to the motion. In Reply, Defendants make a compelling argument that Defendant's counsel waited too long to hire an expert, has been dilatory in responding to discovery, and hasn't made an adequate showing of due...

Excerpt: ...in. Securities Corp., 14 Cal.4 th 394, 410 (394). Under Code of Civil Procedure §1281.2, the court is required to order the parties to arbitration only “if it determines that an agreement to arbitrate the controversy exists,” and there are no defenses to enforcement as provided in subdivisions (a) through (d) of that Code section. Here, the court concludes that no valid agreement existed between the parties to arbitrate the present controver...

Excerpt: ...rike out all or any part of a pleading not filed in conformity with the laws of the State. Plaintiffs are currently without counsel in this action. Under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before the courts of record in propria persona, nor can it represent itself through a corporate officer, director, or other employee who is not an attorney. CLD Construction, Inc. v. Cit...

Excerpt: ...us subject to an “inherent” conflict of interest which has not been waived by Mr. Del Valle. Second, they claim that Mr. Hapeman is a witness in this case because he was involved in seeking investors for the project in question. For his part, Mr. Hapeman denies that he provided legal advice to Mr. Del Valle, or that the two had an attorney-client relationship. Leaving that issue aside momentarily, the timing of cross-defendants' motion is ver...

Excerpt: ...t for entry of default. Given Defendant's testimony that his default was entered through his mistake, inadvertence, surprise, or excusable neglect, and given that the Complaint seeks to quiet title to real property which has been recorded in Defendant's name, but not in Plaintiff's name, the court finds that justice requires the granting of relief from default and the trial of this quiet title dispute on the merits. Defendant also testifies that ...

Excerpt: ...must be brought “within 90 days after the legislative body's decision.” Similarly any action which seeks to “attack, review, set aside, void, or annul the decision of a legislative body to adopt or amend a zoning ordinance” or which seeks to “determine the reasonableness, legality, or validity of any decision to adopt or amend any regulation attached to a specific plan,” must be filed within 90-days. (See Govt. Code, §65009(c)(1)(B)....

Excerpt: ...rt Case No. 30-2012-00563435, on the ground that it is not relevant for the purposes of the demurrer. (1) Demurrer: Demurrer based on Uncertainty: The Cross-Complaint herein is not so uncertain that Cross-Defendant cannot reasonably respond. Uncertainties, if any, can be resolved through discovery. Thus, the demurrer based on uncertainty is overruled. First COA (Professional Malpractice): The Cross-Complaint adequately alleges facts to support a ...

Excerpt: ...800 Battery (“1-800”), Richard Keller et al seeking, among other things, quiet title to the property. In this lawsuit, Plaintiffs contend that Defendant Lazo was authorized on behalf of 1-800 to sell the property to Plaintiffs, and that “Plaintiffs purchased the Property in good faith and for value, without actual or constructive notice of any adverse claim to the Property.”(FAC ¶¶ 17, 20) A subsequent action, 16-879920 (the “2016 Act...

Excerpt: ... is directed. (Code Civ. Proc., § 437c (f)(1).) Thus, it appears that summary adjudication of Issues 1-3 is not proper. Further, summary adjudication of Issue 4 is essentially a motion for summary judgment. Moreover, Defendant's separate statement does not tie each “undisputed material fact” to the particular claim, defense or issue sought to be adjudicated: “[T]he specific cause of action, affirmative defense, claims for damages, or issue...

Excerpt: ... that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” “A party may move for summary adjudication as to one or more causes of actio...

Excerpt: ...ged their agreement to be bound by those terms (including the Civil Code section 1542 waiver). Thus, the elements pursuant to Code of Civil Procedure section 664.6 have been met. Moving parties are to give notice. ...

Excerpt: ...tiff did not timely file an amended pleading, defendant has not yet sought a dismissal. Thus, there will be no tentative ruling on the motion at this time. A Status Conference is also set for today and will go forward. Moving counsel is ordered to give notice of the ruling. ...

Excerpt: ...ation of the non-pass through claims, Defendant Liberty has not initiated any proceedings against Plaintiff which would have required Liberty to initiate mediation. Further, while Plaintiff asserts mediation would be futile, there is no provision in the contract which indicates futility is an exception to enforcement of this provision. Finally, the Court notes Plaintiff has nonetheless indicated it is willing to attend mediation. (¶ 8 of Sposeto...

Excerpt: ...d Cause of Action for Defamation (filed on 1-5-18) is GRANTED. Code of Civil Procedure section 425.16, subdivision (b), states, in part, “(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court dete...

Excerpt: ...onstrating fraud, malice or oppression. Here, paragraphs 45 through 51 of the First Amended Complaint insufficiently plead facts that justify the imposition of punitive damages under a malice, oppression, or fraud theory. (Civ. Code, § 3294.) For example, a conclusory allegation that Defendant (a corporation) was on notice that its trees were causing damage without alleging how Defendant gained this knowledge insufficient to warrant punitive dam...

Excerpt: ...wording of this Judgment, Defendant Patrick Grabowski seeks an order transferring ownership of the Edna Property to him. This request is DENIED as: (1) The request is contrary to the instruction in the Judgment and ignores the order to pay Rutan & Tucker from the proceeds of the Edna Sale; and (2) Defendant failed to offer any evidence which demonstrates the value of the property is less than the amount currently owed to Defendant. Thus, even ass...

Excerpt: ...roduced. Nor has Plaintiff shown that the motion is untimely, as under C.C.P. § 2031.300, there is no stated time limit for a motion to compel where no responses were provided. The Motion is thus GRANTED. Plaintiff is to provide verified responses, without objection, and copies of all responsive documents, within 10 days. Defendant's request for sanctions is GRANTED IN PART. Sanctions are warranted here under C.C.P. § 2031.300(c). But the sum s...

Excerpt: ...any evidence to establish that Palm Royal Limited Partnership was the alter ego of judgment debtor Royal Bar, or that Palm Royal Limited Partnership was the successor of Royal Bar. Third, the Plaintiff failed to present evidence to establish that Palm Royal Limited Partnership in its capacity as alter ego of Royal Bar in fact “…had control of the previous litigation, and thus was virtually represented in the lawsuit.” NEC Electronics v. Hur...

Excerpt: ...ipulation for the court to sign. If plaintiff still wants the court to sign such an Amended Judgment, plaintiff must submit not only the proposed Amended Judgment, but also a copy of the version of the Stipulation signed by defense counsel, which the court will require pursuant to CRC Rule 2.257(c)(2) for this significant matter. Plaintiff is ordered to give notice of the ruling. ...

Excerpt: ...eved (Form MC O53) was not filed or served with the moving papers. (See Cal. R. Ct. 3.1362(d), (e)). Attorney must file and serve the correctly-completed form within the next two business days. The document should be served on the client by an expedited method, and proofs of service filed forthwith. 2. The papers leave some confusion about who is withdrawing. Is Attorney Mariam, individually withdrawing from the representation, and thus leaving t...

Excerpt: ...intiff fails to show how bifurcation would promote judicial efficiency. Plaintiff to give notice. ...

Excerpt: ...ANTED as to Exh. 1 and DENIED as to Exhs. 2-3. (ROA 32.) Defendant's request for judicial notice is DENIED (ROA 36), and Plaintiff's objection is SUSTAINED (ROA 40). Furthermore, as to the exhibits denied, “[o]nly relevant evidence is admissible by judicial notice.” (Golden Gate Land Holdings LLC v. East Bay Regional Park District (2013) 215 Cal.App.4th 353, 366.) As an initial matter, Defendant correctly contends that the FAA applies to the ...

Excerpt: ...sted of three lines. Plaintiffs' Motion to Compel Further Responses to Requests for Production of Documents, Set Two, is granted, except as to No. 116, since the moving papers do not address that request (but rather No. 115, which is not in the notice of motion). Defendants Hyder M. Mukadam and Mukadam Medical Center, Inc. must serve full and complete responses, without objections, to Request Nos. 83-86, 88, 98 and 101-103 within 30 days. Plainti...

Excerpt: ...plemental response was served 2/22/18. The statutes for each of the interrogatories, RFPS, and RFAs provide for 45 days to move to compel further responses. Similarly, that 45 days starts anew when a supplemental response is served. (Code Civ. Proc., §§ 2030.300, subd. (c), 2031.310, subd. (c), 2033.290, subd. (c) [“within 45 days of the service of the verified response, or any supplemental verified response”].) There is no reading of this ...

Excerpt: ...intiff and his counsel, jointly and severally. The requests in dispute essentially ask Plaintiff to produce all documents in support of the allegations in the operative complaint. There is good cause to seek documents related to Plaintiff's contentions. Once the moving party shows good cause to justify discovery of the requested materials, the burden shifts to the responding party to justify the objection. (Kirkland v. Superior Court (2002) 95 Ca...

Excerpt: ...ing to Code of Civil Procedure section 1987, subdivision (c), a notice to appear and produce documents at trial “shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control.” (Code Civ. Proc., § 1987, subd. (c); compare, Code Civ. Proc., § 2031.030 [for discovery, only requires that a request describe a category of documents to be produced].) Plaintiff's reques...

Excerpt: ... copy of the video. Defendants contend they have fully complied by producing a video – 32 minutes in length – showing the meat of the altercation. However, defendants concede there may be other footage – “for instance, Plaintiff speaking with a teller prior to meeting with Ouyang” – which has not been produced. On a motion to compel production of a writing, such as a video, the first step is to determine whether the demanding party ha...

Excerpt: ...od regulations, which require payment of a premium wage for each improper meal., give rise to claims under sections 203 and 225 of the California Labor Code where the employer does not include the premium wage in the employee's pay or pay statements during the course of the violations?”. Stewart v. San Luis Ambulance, Inc., California Supreme Court No. S246255; C.D. No. 2:13-cv-09458-BRO-SS. This question, therefore, has yet to be settled and m...

Excerpt: ...templates an entry of a judgment upon the settlement terms first. The parties do not raise the issue but the Court noted it. Case law provides that “Section 664.6 was enacted to provide a summary procedure for specifically enforcing a settlement contract without the need for a new lawsuit.” Hernandez v. Board of Educ. of Stockton Unified School Dist. (2004) 126 Cal.App.4th 1161, 1176. “[S]ection 664.6, an expedited procedure for enforcing a...

Excerpt: ...it obtains at the Phase III trial should be offset against the amount it owes AWPA due to AWPA's judgment against KDF. However, KDF's cross- complaint which is going to trial is against Paul Harper, not AWPA. Although KDF named AWPA as a cross-defendant, the court sustained AWPA's demurrer to KDF's cross-complaint without leave to amend on December 10, 2014, and KDF did not appeal from the ensuing September 9, 2015 Judgment. Thus, AWPA is not res...

Excerpt: ...are equitable. Accordingly, Defendants' jury demand is stricken. The October 22, 2018 trial will be a court trial, not a jury trial. Plaintiff shall give notice of the ruling. ...

Excerpt: ...tinued hearing date of 3-9-18 on its motion to terminate its jurisdiction as ordered as well as notice of the continued status conference to this same date. The court also inquires whether petitioner State Bar has a last residence address for attorney Amy Lynn Spencer and whether the State Bar can give notice to this address as the State Bar is requesting that this court authorize the destruction of a laptop computer and all electronic equipment ...

Excerpt: ...st that opportunity. GAIC must make any and all arguments it wants to make in opposition to having the class certification order modified to apply to GAIC, now that GAIC has had a chance to submit its pleading challenges, conduct discovery, and file its Answer and Cross-Complaint for indemnity. Any supplemental opposition is due nine court days before the continued hearing date, and any reply is due five court days before the continued hearing da...

Excerpt: ...for 4-11- 18 at 8:30 a.m. in Dept. C-20. ...

Excerpt: ...osition on the merits, the recommendation is to grant this motion. (Elston v. City of Turlock(1985) 38 Cal.3d 227, 233.) Defendant shall file a responsive pleading to Plaintiff's Complaint within 15 days. Default Prove Up Hearing. Off calendar. Defendant is ordered to give notice ...

Excerpt: ...hile the court determined it had no jurisdiction to vacate the arbitration award, it did have jurisdiction to award contractual attorney fees based on the unsuccessful motion to vacate that was opposed by respondent. Brown v Desert Christian Center (2011) 193 Cal. App. 4 th733. A court always has jurisdiction to determine its own jurisdiction and, when appropriate, award attorney fees in connection with that determination. Attorney fees are award...

Excerpt: ... scheduled on 2/22/18 was that Plaintiff's counsel forgot that he had a conflict with an MCLE training and elected to cancel the deposition on 2/15/18, over a month after he had set it. In his moving papers, Plaintiff's counsel admits that he had a conflict and cancelled the deposition. Plaintiff's counsel states that the parties agreed to set Johnson' deposition for 2/28/18. But Johnson's counsel testifies that although he had tentatively agreed...

Excerpt: ...hn Michael Waller, payable to counsel for Claimant US Immigration Bonds. The court declines to order the monetary sanctions paid from the remaining balance of surplus sale proceeds on the grounds that Claimant US Immigration Bonds failed to cite any statutory or other authority for the distribution of Code Civ. Proc. § 128.5 sanctions from surplus sales proceeds held by the court under authority of Civ. Code §§ 2924j, & 2924k. c) The court spe...

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Excerpt: ...P 1013b(b)(1)) or (b)(4) in that they do not include the electronic service addresses of person making service or the person served. There are no additional responsive documents filed by respondent which would waive this defect. The hearing is also continued in order for respondent to have an opportunity to respond to the additional evidence provided by petitioner. Petitioner is ordered to serve the following to respondent by 3/14/18: (1) the ame...

Excerpt: ...350 (b), which requires the issues to be stated verbatim in the separate statement. The failure to comply with this requirement limits the court only determining if the entire summary judgment should be granted. Stating each issue separately is important to determining the motion properly. Burden of Proof: Code Civ. Proc., § 437c (p) (2) provides that “A defendant or cross- defendant has met his or her burden of showing that a cause of action ...