Excerpt: ... of plaintiff Cara Crouch. (See, Declaration of Charles Richardson in Support of Motion & Memorandum of Costs filed 6-27-17.) Rule 3.1700(a)(1) requires filing and service of a memorandum of costs. In addition, the stipulation to withdraw between attorney Keesling on behalf of plaintiff Cara Crouch and defendant TCCSA is not shown to cover the memorandum of costs attached to the declaration of attorney Charles Richardson. The stipulation in conte...

Excerpt: ...ficient to support a claim that this was despicable conduct under Civil Code section 3294. Defendant Parker Kirsten shall file an answer to the complaint within 10 days. The plaintiff shall give notice. ...

Excerpt: ...$100,000 by the end of trial. It is undisputed the plaintiff failed to obtain a more favorable verdict—it was a 12-0 defense verdict. The burden was on the plaintiffs to show that the offers were not made in good faith. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.) It failed to meet its burden. The court further finds the offers were reasonable. They were made nearly three years after commencement of the action in 2013;...

Excerpt: ......

Excerpt: ...ence is CONTINUED to July 11, 2018, at 8:30 am. It does not appear that all parties have appeared in the action. All parties are ORDERED to file new Case Management Conference Statements prior to the new hearing in accordance with the Local Rules. The defendant shall give notice. ...

Excerpt: ...writ proceeding. Pursuant to section 1094.5(b), the inquiry extends to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Cal. Civ. Proc. Code § 1094.5(b). Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or t...

Excerpt: ...as moot. DEMURRER Alter Ego Except for the claims for breach of oral contract, intentional misrepresentation and negligent misrepresentation, Gunnison's liability depends on the alter ego doctrine. However, Plaintiffs have not alleged sufficient facts to invoke the doctrine. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) Accordingly, the demurrer as to the claims for breach of written contract, breach of implied warranty...

Excerpt: ... of requested fees and costs. As a matter of due process the court will award the amounts noticed in the notice of motion. The court finds that the full amount of the cost and fees requested by Petitioners was reasonable in quantity and also reasonably necessary to the conduct of this litigation. In Opposition, Respondent argues that Petitioners are not entitled to recover fees for their elder abuse claims brought after the death of their mother ...

Excerpt: ...ment of Class Action, Settlement Hearing and Claims Procedure (Notice to Class). The estimated number of Class Members has increased from 35 to 55, an increase of over 50%, but there is no proposed increase in the settlement amount. Counsel should explain how that is fair and reasonable. Since the Class Period may well be further extended to April 13, 2018, the class size could increase further. No agreement by the class members (as opposed to th...

Excerpt: ...f financial elder abuse are: (i) defendant took/hid/ appropriated/obtained/retained plaintiff's property, or assisted in same; (ii) plaintiff was 65 years of age or older/a dependent adult at the time of the conduct; (iii) defendant took/hid/appropriated/obtained/ retained]/assisted in taking/hiding/appropriating/obtaining/retaining the property for a wrongful use/with the intent to defraud/by undue influence; (iv) plaintiff was harmed; and (v) d...

Excerpt: ...rrer as to the sixth cause of action for negligence. First and Fourth Causes of Action (Breach of Contact and Breach of Implied Covenant of Good Faith and Fair Dealing) The elements of a breach of contract claim are (1) plaintiff and defendant entered into a contract, (2) plaintiff performed its obligations under the contract, or it was excused from doing so, (3) all of the conditions for defendant's performance occurred or were excused, (4) defe...

Excerpt: ...ained on grounds of failure to state facts sufficient to constitute a cause of action. The opposition does not address the challenge to this cause of action. Plaintiff is granted 10 days leave to amend. Counsel for moving party to give notice. Motion (2): The motion by all defendants to strike portions of the complaint is moot in part, granted in part, and denied in part as follows: The motion is moot as to paragraph 68. The motion is granted as ...

Excerpt: ...econd and third causes of action in the Complaint pursuant to CCP § 425.16. Preliminary Issues Defendants' request for judicial notice is GRANTED. (ROA 10.) Plaintiff WRW Properties, LLC's request for judicial notice (ROA 54-58) is DENIED as to Exhs. 2-4, 6, 16, and 33-36, and GRANTED as to Exhs. 1, 5, 7-15, and 17-32. Defendants' objections (ROA 68) were considered in ruling on Plaintiff's request for judicial notice. With respect to the Meyer ...

Excerpt: ...ontribution. HKJ Gold asks for time to conduct discovery into Hernandez's wealth. But in light of his Declaration, discovery is not needed for the court to make a determination as HKJ Gold urges. City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, is inapposite. In that case, the moving party provided no evidence of his assets or even that the insurance denied coverage. Thus, the court denies HKJ Gold's request for a continuance t...

Excerpt: ...f critical evidence, or added costs of preparation.” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.) If, however, the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the court has discretion to deny leave to amend. (See Hirsa v. Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 490.) Ordinarily, the court does not consider the validity of the proposed amended pleading in deciding whether...

Excerpt: ...larity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the co...

Excerpt: ...ffered by a railroad company violated the FLSA where trainees received no compensation during the training. 330 U.S. at 150, 67 S.Ct. 639. Those who successfully completed the program and were listed as accepted and available for work were given a retroactive allowance, but those who were not accepted never received any compensation for their participation in the program. Id. In determining whether the trainees were employees for purposes of enti...

Excerpt: ... in on the motion to strike. On January 11, 2018, the court granted the motion to strike to the extent the third amended cross-complaint was brought by cross-complainant LL USA, because LL USA already had an active cross-complaint (i.e., the second amended cross-complaint filed on July 13, 2016) on file when it filed the third amended cross-complaint and did not seek leave of court before doing so. The court allowed the third amended cross-compla...

Excerpt: ...t appear as if the parties did so here, as there isn't a declaration found with the moving papers. However, the recommendation is to proceed with the hearing because the trial is not too far away and it will be efficient to proceed at this time. Per the statute, “A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion for judgment on the pleadings.” (CCP §439(a)(4)). Also, the...

Excerpt: ...is sustained in part and overruled in part. Plaintiff alleges four causes of action in the SAC: (i) breach of Governing Documents; (ii) declaratory relief; (iii) abatement of nuisance and nuisance per se; and (iv) intentional interference with contractual relations. Plaintiff alleges Defendants have harassed one of Plaintiff's employees and have violated Plaintiff's rules by constructing an unauthorized patio cover in violation of Covenants, Cond...

Excerpt: ...s bringing these claims or whether plaintiff L&K Technology, Inc. is also attempting to assert them directly. (See SAC at ¶¶ 35-38 [breach of fiduciary duty], 64-67 [conversion].) They are also uncertain as to whether Ngo is asserting the claim directly, derivatively, or in both capacities. (Ibid.) The rules of pleading and proof with respect to these claims differ substantially depending on who is alleging them and in what capacity. Defendant ...

Excerpt: ...on against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced with one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. Cal. Civ. Proc. Code § 340.6(a). Under secti...

Excerpt: ...y of the specific allegations in each cause of action refer only to a single “Defendant.” Plaintiff's explanation in her opposition that any given allegation “ultimately applies to one or both of the Defendants” illustrates the ambiguity. Defendants cannot be certain which causes of action are alleged against which Defendant, which prevents Defendants from reasonably responding to the Complaint. Plaintiff must file and serve an amended co...

Excerpt: ... Special Interrogatory Nos. 36 through 148. See Cal. Civ. Proc. Code § 2030.040(b); Plaintiff's Opposition at 6:10-9:20. Several of these interrogatories seek facts, witnesses and documents supporting Defendant's thirty-one affirmative defenses (Nos. 59 through 148) and the other interrogatories cover appropriate areas of discovery (e.g., Nos. 44 through 46, seeking information supporting Defendant's contention that the alleged public disseminat...

Excerpt: ...aintiff dated 04/04/16 transmitted to Defendant (Quang Nguyen Dec. Exh. 1), that Defendant counter offered by e-mail requesting a $10,000.00 discount from the price in the 04/04/16 bid (Id. Exh. 2), and that a revised estimate dated 05/04/16, incorporating the discounted price, was transmitted to Defendant by Plaintiff from Orange County (Id. Exh. 3), and that Plaintiff believed that it had a binding contract by that date. (Id. ¶ 7). On acceptan...

Excerpt: ...te, on a mutually agreed date. The turn-over may be scheduled to take place in Department C-18 of this courtroom in the presence of courtroom staff. Second, the parties are ordered to meet and confer for the purpose of agreeing to a stipulated order concerning keeping defendant away from Raffi Yakubian and from any bank where trust assets are located. The Order should be specific as to locations of both Mr. Yakubian and trust assets. A stipulated...

Excerpt: ...anted Mercury's summary judgment motion because Plaintiff filed her lawsuit after the one-year limitations period set forth in Plaintiff's policy with Mercury had expired. As discussed below, there is substantial evidence to support the decision. Plaintiff's policy with Mercury contains a one-year limitations period: "Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions and the action is started ...

Excerpt: ...nt of Undisputed Facts, Nos. 2, 4, 7, 11-12, 15, 16, 19, 28-30 & 33-34. Defendants showed a triable issue of material fact with respect to each of these causes of action – the amount owed. SeeDefendants' Opposing Separate Statement of Disputed Facts, Nos. 12, 13, 19, 20, 34 & 35. Plaintiff's motion is therefore denied as to Plaintiff's first, second and fifth causes of action. Plaintiff met its burden of demonstrating it is entitled to summary ...

Excerpt: ...mination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. … (e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial procee...

Excerpt: ...dication is denied. The court (Judge David T. McEachen) previously denied Defendant's motion for summary judgment on statute of limitations grounds, finding that “there is a disputed fact as to when Fantastic Path knew or should have known that the Second Deposit was released.” 07/28/17 Order. Plaintiff, in seeking summary judgment and summary adjudication in its favor on its first and second causes of action, implicitly (if not explicitly) a...

Excerpt: ...against only the (1) seller aka “retailer” or “retail seller,” (2) distributor, and/or (3) manufacturer of the subject vehicle, as those terms are defined in the Song-Beverly Act. (See Civ. Code, §§ 1791, subds. (e), (j), (l) [defining retailer, distributor, and manufacturer], 1791.2 [defining “express warranty”], 1791.1 [defining implied warranty of merchantability], 1792 [manufacturer's and retailer's implied warranty of merchanta...

Excerpt: ... the allegations of the complaint. See, Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4 th 96, 106 to 107. Here, Plaintiff's complaint was filed on 11-12-15 with Plaintiff's third amended complaint filed on 2-1-17. Defendant Jack's Surf & Sport has been a named defendant since Plaintiff filed her initial complaint. Defendant Jack's Surf & Sport carried its initial burden of establishing that Plaintiff lacks evidence, including any documents th...

Excerpt: ...40:14-44.18 & Pltf. Depo., Vol. 2, 73:4-74:8, 78:21-80:22, 81:1-25, 95:11-98:7]; Complaint at ¶ 8)—facts which Defendants do not dispute and have not negated in their motion. Indeed, Dr. Dubrow's declaration, particularly his recitation of the “pertinent medical chronology,” shows that instead, he selectively credited Dr. Nguyen's contradictory version of the events as set forth in Plaintiff's medical records, which state, inter alia, that...

Excerpt: ... See, Super 7 Motel Associates v. Wang (1993) 16 Cal.App.4 th 541, 542-547. Even if he had been, the Cross-Complaint against him was not based on the breach of any contract by him, but upon his alleged tortious conduct. Attorneys' fees are not recoverable on a cause of action asserting only tort claims. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4 th230, 240. Moving party to give notice. ...

Excerpt: ...ld be unable to fairly respond to important proceedings. CRPC 3-700(A)(2); Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1409. There is a motion for provisional relief aimed at counsel's client, set for hearing on 03/22/18. There is also an upcoming MSC and trial around the corner. The client is an entity, and thus cannot participate without counsel. Motion to withdraw continued to 03/22/18 at 1:30pm. Counsel is ordered to immediately serve up...

Excerpt: ...ecede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5 [not applicable here]. … If the decision of the court, or the verdict of the jury upon the issue of liability so tried shall be against any party on whom liability is sought to be imposed, or if the decision of the court or the verdict of the jury upon any other issue or part thereof so trie...

Excerpt: ...e deemed to constitute “new litigation” subject to that order. In the alternative, Defendant requests an order that it need not respond to future motions filed in this case until the court initially determines whether the court has jurisdiction to consider the motions. For the following reasons, Defendant's motion is denied. California Civil Procedure Code § 391.7 states that “the court may, on its own motion or the motion of any party, en...

Excerpt: ... case of SEC v. Hickey (9th Cir. 2003) 322 F.3d 1123. Roger Torriero The demurrer of defendant Roger Nello Torriero to the first, third, sixth, and seventh causes of action is OVERRULED with ten days to answer. The defendant attempts to defeat these causes of action with material that is neither in the complaint nor the proper subject of a request for judicial notice. The allegations in the complaint support the claims alleged in these causes of ...

Excerpt: ...dication set forth in ETA's notice of motion for summary adjudication while there are nine issues for summary adjudication set forth in ETA's separate statement. Further, none of the issues for summary adjudication set forth in ETA's separate statement for summary adjudication are set forth in ETA's notice of motion for summary adjudication. On the merits, summary adjudication on all issues in ETA's separate statement that rely on previous lack o...

Excerpt: ...es Corp. (1996) 14 Cal.4 th 394, 413. Defendant Alfredo Cervantes is covered by this agreement as he is being sued for conduct within the scope of his agency for defendant AG Seal Beach, LLC. See, Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4 th 1013, 1021. Alternatively, the doctrine of equitable estoppel is applicable as plaintiff Montoya's claims against defendant Alfredo Cervantes are intertwined with plaintiff's cla...

Excerpt: ... supporting evidence as to its execution. Plaintiff also needs to show that all conditions precedent to entry of the stipulated judgment have been met. Second, the Motion states that the defendants defaulted under the terms of that settlement agreement. (Motion p. 3.) But in a declaration filed on 4/21/17 (ROA 35), Plaintiff's counsel stated that the defendants had made some of the promised payments. It thus appears that some credit would be due ...

Excerpt: ... identified in response to Form Interrogatory Nos. 12.1(d), 12.2(d), 15.1(b) and 17.1(c). Defendant has agreed to produce each of the individuals who is still employed by Defendant and to accept deposition subpoenas on their behalf. Additionally, Defendant has provided Plaintiff's counsel with the last known contact information for the three individuals Plaintiff seeks to depose who are no longer employed by Defendant. Plaintiff did not address t...

Excerpt: ... provides: “Community property is subject to enforcement of a money judgment as provided in the Family Code.” Family Code section 910 provides: (a) Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a ...

Excerpt: ...lves in this action because they are not natural persons. Under Code Civ. Proc. § 436, the Court has discretion to strike 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...

Excerpt: ......

Excerpt: ...Bonnie's history of attacking her roommate was material, and Deft's agents were under a duty to disclose it if they knew of it; Pltf has submitted evidence of acknowledgment by Preisman of a prior incident, and therefore there is enough alleged by Pltf to support a claim for fraud by concealment; Deny; ...

Excerpt: ... requirements to obtain a writ of attachment; Deny. ...

Excerpt: ...e Code section 452, subdivisions (d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) “ ‘In determining the sufficiency of a complaint against a demurrer a court will consider matters that may be judicially noticed.' [Citation.] A court may take judicial notice of something that cannot reasonably be controverted, even if it...

Excerpt: ...tions of the Complaint into this cause of action (via Para. 11) and it alleges that Defendant GUINEY breached the implied covenant in the written agreements which include, inter alia, “trying to oust and squeeze PLAINTIFF out of his investments in GnG and the WEE CHIPPY GLOBAL” and thwarting the building of the Costa Mesa franchise location. (See Complaint, Para. 13.) The WEE CHIPPY GLOBAL Operating Agreement states that the “purpose” of ...

Excerpt: ..., many of the Park's Rules, each of which constitutes a breach of the Agreement. MP's first argument is that Cross-Complainants fail to allege the specific terms that existed and were breached. However, the actual Lease Agreement is attached to the XC as Exhibit A. One of the terms is that “Homeowner agrees to abide and conform with all applicable laws and ordinances, all terms and conditions of this Agreement, the Rules and Regulations, all ru...

Excerpt: ...e more expensive or difficult.” (CACI No. 2201). ¶ 32 of the FAC states, “By engaging in the misconduct alleged herein, Defendants intended to, and did substantially disrupt and interfere with the performance of the APA by soliciting loan officers at BHL to take their books of business to Fairway instead of Caliber, which disrupted Caliber's contractual ability to acquire that business.” ¶ 28 of the FAC explains, , “Because of Defendant...

Excerpt: ... 7:1-6.) ¶ 17 of the XC indicates a loss of “equity.” ¶ 18 of the XC alleges, “personal injury to cross complainants, including intense worry and concern, loss of sleep, inability to eat, headaches, and other conditions.” As to the Cross-Defendants' argument that the Statute of Frauds bars the XC, Cross- Complainants have pled claims for negligence, negligent infliction of emotional distress, intentional infliction of emotional distress...

Excerpt: ...of the recorded documents and their legal consequence. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264.) The court may not take judicial notice of the truth of matters stated in the recorded documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th 1106, 1117-18.) Further, these documents are not reasonably subject to dispute and are capable of immediate and accurate determination by resor...

Excerpt: ...on 1-22-18) is DENIED. Code of Civil Procedure section 2025.450, subdivision (a), states, “If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . the party giving the notice may move for an order compelloing the deponent's attendance and testimony . . . .” “A motion under subdivision (a) shall comply with both of the followin...

Excerpt: ...bmitted in the case or the jury instructions given in this case.” (Motion: 2:14-16). Thereafter, Plaintiff repeats many of the arguments put forth in connection with its prior Motion for Entry of Judgment. To the extent this Motion is intended to challenge this denial (which occurred on October 10, 2017), there has been no showing of compliance with Code of Civil Procedure section 1008. Although Plaintiff asserts the court neglected to consider...

Excerpt: ...It appears the “bad acts” of defendants includes (a) allowing unlicensed salespersons to demonstrate devices and (b) a design defect in the device. As to (a), there really are no facts that by allowing unlicensed salespersons to demonstrate the devices, said conduct was malicious, oppressive, or fraudulent (or a conscious disregard of the safety of Plaintiff). If Plaintiff pled more facts that Defendant knew the lack of training would cause t...

Excerpt: ...ion (a), provides, “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 malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” First, the court GRANTS the Motion to Strike ¶ 75 of the SAC without leave to amend. Although Plain...

Excerpt: ...r her mistake, inadvertence, surprise, or neglect vacate any (1) resulting default entered by the clerk against his or her client . . . or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall whenever relief is granted based on an attorney's affidavit of fault, direct the attorney ...

Excerpt: ... section may only be made on one of the following grounds: . . . [¶] (B) If the moving party is a defendant, that either of the following conditions exist: . . . [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Kapsimallis v. Allstate Insurance Company (2002) 104 Cal.App.4 th 667, 672, explains, “A judgment on the pleadings in favor of the defendant is appropriate when the compl...

Excerpt: ...ence that Defendant Allan recklessly hit his shot without making sure the course ahead was clear of other golfers (Opposition, Pace Decl., ¶¶ 2-10, Exh. A; Morgan Decl., ¶¶ 2-10; Graff Decl. ¶¶ 2-10; Blower Decl., ¶¶ 2-10; Gimino Decl., ¶¶ 2-7); Defendant Allan's group had hit up on Plaintiff's group two times prior to the incident, causing Plaintiff's group to complain to the Marshall (Opposition, Pace Decl., ¶¶ 3- 4; Morgan Decl., �...

Excerpt: ...in another round of mediation ; or 4) To the extent the depositions go forward in Mexico, Order trial testimony to be obtained the next day. Here, it would seem from the outset that Code of Civil Procedure section 2025.260 is somewhat inapplicable because it is for “a party desiring to take the deposition of a natural person who is a party to the action…” Defendants did not attempt to set the depositions of Plaintiffs here. Rather, doing al...

Excerpt: ...gatory by any of the following: [¶] (1) An answer containing the information sought to be discovered. [¶] (2) An exercise of the party's option 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. [¶] (...

Excerpt: ...es that “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.” On 6/28/17, Plaintiffs filed their Memorandum of Costs, which was served by mail. The Motion was timely filed on 7/18/17, which was twenty (20) days later. Prevailing Party: Pursuant to Code Civ. Pro...

Excerpt: ... See Award Metals, Inc. v. Superior Court(1991) 228 Cal.App.3d 1128, 1134-1135 (claims for negligence and intentional tort were merely a “duplication” of the claim for violation of Labor Code section 4558 and should have been sustained); Palm Springs Villas II Homeowners Ass'n, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 (trial court properly sustained cause of action for breach of governing documents which appeared to be duplicative of bre...

Excerpt: ...§§ 1792, 1791.1, 1791(a); Mega RV Corp. v. HWH Corp. (2014) 225 Cal.App.4th 1318, 1335-1337 [implied warranty generally inapplicable to components that are not “‘stand-alone product[s]'”]; see also Def. SSUF #4-5, 19-26, 28; Pl. Opp. at 12:23 [slide out and steps], 14:4 [same].) The complaint states the 1st cause of action is asserted only against another defendant, Evergreen Recreational Vehicles. But even if the complaint is construed a...

Excerpt: ...f her deposition. Moreover, the court finds that the plaintiff's agreement to stipulate to not use the videotape for purposes other than this litigation is sufficient restriction to address any concerns expressed by the defendant regarding the potential improper use of the videotape. Authorities: The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, man...

Excerpt: ...July 2017. ...

Excerpt: ... section may only be made on one of the following grounds: . . . [¶] (B) If the moving party is a defendant, that either of the following conditions exist: . . . [¶] (ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.” Kapsimallis v. Allstate Insurance Company (2002) 104 Cal.App.4 th 667, 672, explains, “A judgment on the pleadings in favor of the defendant is appropriate when the compl...

Excerpt: ...apter, the maximum amount of disposable earnings of an individual judgment debtor for any workweek that is subject to levy under an earnings withholding order shall not exceed the lesser of the following: (1) Twenty-five percent of the individual's disposable earnings for that week. (2) Fifty percent of the amount by which the individual's disposable earnings for that week exceed 40 times the state minimum hourly wage in effect at the time the ea...

Excerpt: ...is inclined to deny the motion as to punitive damages, as fraud has been alleged. 2. Plaintiff/Cross-Defendant's Demurrer to Cross-Complaint This pleading is mooted by the amended cross-complaint filed February 20, 2018. ...

Excerpt: ... other remedy demanded in a cause of action. But here, no cause of action is stated at all: the Second Cause of Action instead attempts to assert a punitive damages claim based on the First Cause of Action. (See Complaint ¶¶ 13-15.) The Opposition effectively concedes that this is so. (See Opp. at p. 1.) As the Second Cause of Action fails to state any cognizable cause of action, Defendants' demurrer is sustained. However, as this Demurrer is a...

Excerpt: ...anation.” Womack v. Lovell (2015) 237 Cal.App.4th 772, 787. In the original complaint, Plaintiff Erwin sued his client Ed Gabrin. Plaintiff was a party to the two oral contracts. In the First Amended Complaint, Plaintiff alleged that he was a third party beneficiary instead. Plaintiff failed to explain the reason for this substantial change. Rules of Professional Conduct, Rule 3-300: California Rules of Professional Conduct, rule 3–300 subjec...

Excerpt: ......

Excerpt: ...ice. ...

Excerpt: ...ee Agreement with her former attorneys is contradictory and ambiguous and has an unmet contingency that requires dismissal of cause of action. The Court disagrees. Paragraph 6 of the Agreement provides that if there is no recovery (i.e. if Plaintiff gets no money) then she is still responsible for costs incurred by B&B. There is no unmet contingency. Further, paragraph 4 addresses legal fees in the event of a recovery of some kind. The two paragr...

Excerpt: ...s lengthy preamble to the argument, which purports to set forth a number of facts that are extrinsic to the Cross-Complaint. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A. Third Cause of Action for IIED In his Motion, Eladio argues that the third cause of action parrots the eleme...

Excerpt: ...rty shall pay its own attorneys' fees and costs. Since the tenancy was not forfeited, Section Thirty-Seven for Litigation applies. Under the facts of this case, each side is responsible for its own attorney fees. Pursuant to Civ. Code, § 1717 (b) (1), the court shall determine who is the party prevailing on the contract. The party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The cour...

Excerpt: ... that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees. [¶] (b) The court shall make this order unless it finds any of the following: [¶] (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [...

Excerpt: ...Quick Bridge alleges that it is owed the principal sum of $60,997.20, plus $10,650.00 in attorneys' fees and costs, as per the attorneys' fee provision in the Loan Agreement, and $6,784.26 in prejudgment interest, for a total judgment amount of $78,431.46. Authorities: Summary judgment may be granted where it is shown that "there is no defense to the action or proceeding." See Civ. Proc. Code§ 437c(a). a moving plaintiff has met his burden of sh...

Excerpt: ...onship.” The declaration submitted in support of this Motion supports withdrawal under Rules of Professional Conduct, rule 3-700, subdivision (C)(1)(d). Moving Counsel will remain the attorney of record for Mr. Contreras until Moving Counsel files proof of service of the signed order upon the Mr. Contreras. The order will become effective upon the filing of the proof of service upon Mr. Contreras. The court schedules this case for a Case Manage...

Excerpt: ...ws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Code Civ. Proc. § 431.10(b). Plaintiff's Complaint fails to state sufficient facts to support a claim for punitive damag...

Excerpt: ...se” for the production, Code Civ. Proc. § 2031.310(b), and Defendants did not object to any of the demands. Defendants are ordered to provide further responses and production within 15 days. Defendants are ordered to pay $1,120 in sanctions to the Law Office of Dean P. Sperling within 30 days of the notice of ruling. Code Civ. Proc. §§ 2023.010, 2031.320. Motion to Deem Requests for Admissions and Genuineness of Documents Admitted Plaintiffs...

Excerpt: ...ion (a), provides, “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 malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” First, the court GRANTS the Motion to Strike ¶ 75 of the SAC without leave to amend. Although Plain...

Excerpt: ...t alleging two causes of action for (1) wrongful death (CCP 377.60) and (2) negligence. Defendant Daniel Scott DePalma argues that the court should strike Plaintiff's for punitive damages because punitive damages are not recoverable in a wrongful death action. (Georgie Boy Manufacturing Inc. v. Superior Court (1981) 115 Cal.App.3d 217, 222.) Defendant argues that decedent “died instantly,” but this appears to be a mischaracterization of Plain...

Excerpt: ... the burden is on the moving party to show both: • Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and • Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). Glenfed Develop. Corp. v. Sup.Ct. (National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 CA4th 1113, 1117; see also ...

Excerpt: ...ied, it will be necessary to file a new action to enforce the terms of the settlement agreement.” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 12(II)-F at ¶ 12:982 (inner citations omitted). A court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Co...

Excerpt: ...87.2.) At the outset, defendant failed to show it properly served the subpoena on Orange Coast Women's Medical Group. (See Code Civ. Proc., §§ 1985.3, subd. (b)(1), (3), 1013, subd. (a).) More basically, both subpoenas are woefully overbroad and unjustifiably seek protected private information. (See Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; see also Vinson v. Superior Court (1987) 43 Cal.3d 833, 841.) Defendant failed to show the...

Excerpt: ...ith the Laws of Belize. The parties hereto consent to the jurisdiction and venue of such court in Belize as the sole and exclusive forum for the resolution of claims by the parties arising under or relating to this real estate purchase contract." (See PL-0121 to Complaint). The law in this area is well-established. “In California, the procedure for enforcing a forum selection clause is a motion to stay or dismiss for forum non conveniens ... , ...

Excerpt: ...h below. Plaintiff to give notice. 1. Combined Discovery Motions This is a combined motion to compel production of documents (and to compel further responses to RFPDs) as well as a motion to compel further responses to interrogatories. These are independent discovery devices, however, pursuant to independent statutes. (See CCP §2031.310 vs. §2030.300). Plaintiff is ordered to tender the filing fee for the hearing of the second motion to compel,...

Excerpt: ...gatory by any of the following: [¶] (1) An answer containing the information sought to be discovered. [¶] (2) An exercise of the party's option 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. [¶] (...

Excerpt: ...ed orders with corrections to section 8 regarding future hearings. The Court notes that the proposed order does not mention the pending motion to consolidate or motion to strike, and the dates for the CMC and pending demurrer are incorrect. The Court further notes that any order that might be entered relieving counsel would not become effective until counsel filed with the Court proof that it had serve the order relieving it on the clients. ...

Excerpt: ...subpoena, noticed, but never actually served.) On 11/14/17, plaintiff caused to be filed herein motions to quash the subject subpoenas. Pursuant to CCP §1985.6(f)(1), plaintiff was entitled to bring such a motion “prior to the date for production.” CCP §1987.1 further provides that the motion must be “reasonably made.” The motions are timely, but procedurally defective in that each motion omits the required meet and confer declaration. ...

Excerpt: ...ortunity to order the deposition in a timely manner, the court declines to exclude the expert's testimony at trial. ...

Excerpt: ...he procedural element focuses on the existence of oppression or surprise and the substantive element focuses on overly harsh or one-sided results. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114. To be unenforceable, a contract must be both procedurally and substantively unconscionable, but the elements need not be present in the same degree. The analysis employs a sliding scale: “…the more substantively opp...

Excerpt: ...ldn't hurt if it were set out from the rest of the verbiage. The court would like to hear argument. ...

Excerpt: ... SETS a status conference re binding arbitration for 9/10/18 at 10 am in Dept. C- 12. Defendant Roth Staffing met its burden to show a written arbitration agreement exists that covers plaintiff's claims against it and provides for arbitration pursuant to the FAA. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Shepard v. Edward MacKay Enterprises, Inc. (2007) 148 C...

Excerpt: ...l capacity (see ROA 15). As plaintiffs make plain in their stipulation regarding the First Amended Complaint (see ROA 55), the brother “has been omitted as a defendant” from the action. True to their word, brother is not a named party in the action now (only his estate). An amended pleading which omits a previously named defendant operates as a dismissal of that defendant. Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.Ap...

Excerpt: ...; Bostanian v. Liberty Savings Bank (1997) 52 Cal.App.4th 1075, 1083; M & M Foods, Inc. v. Pacific American Fish Co., Inc. (2011) 196 Cal.App.4th 554, 562.) But that is not addressed in the venue motion, and is not jurisdictional. The Court has thus addressed the merits of the venue motion. A defendant is entitled to have an action tried in the county of his residence unless the action falls within some exception to the general venue rule. (C.C.P...

Excerpt: ...o be no later than 2-2-18, making service on 2-8-18 untimely. In addition, the efforts made by the moving law firm to confirm the current address of its client are not sufficient. When the client's address cannot be confirmed, the attorney must make “reasonable efforts” to confirm the address (or locate a more current address). (CRC 3.1362(d)(1)(B)) Simply mailing the motion to the last known address, return receipt requested, and calling the...

Excerpt: .... (b).) If full information is not yet available, plaintiff must “reveal all information then available to” him. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782.) He may not simply “assert[] [his] inability to respond.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 406.) And plaintiff has not met his burden to justify his objections. (Coy v. Superior Court (1961) 58 Cal.2d 210, 220-221...