Excerpt: ...e plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Id.) Only a claim that satisfies both prongs of the statute - i.e., that arises from protected speech or petitioning and lacks even minimal merit - can be stricken. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) Here, Prong 1 is met. A claim arises from protected activity when that activity underlies or forms the basis for the claim. (Area 51 Product...

Excerpt: ...ns filed 3-9-17.) Rule 3.110(g) provides that: “If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default.” The ...

Excerpt: ...g on December 29, 2017; the court (Judge Robert Moss) requested supplemental briefing and continued the motion hearing to January 26, 2018. On January 26, 2018, the court issued a tentative ruling on Trustee Doan's motion and held argument; following argument, the court requested further supplemental briefing and continued the motion hearing to March 2, 2018. The case, including Trustee Doan's motion, was thereafter transferred to this court and ...

Excerpt: ...2nd cause of action, Civil Code 2923.7. The FAC states facts sufficient to constitute this cause of action. 3rd cause of action, Rosenthal Fair Debt Collection Practices Act violation. The FAC fails to state facts sufficient to constitute this cause of action. The statute is inapplicable to the foreclosure activity alleged in the FAC. (See Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1264; Fontenot v. Wells Fargo Bank, N.A...

Excerpt: ...fected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05. Questions of fact cannot be decided on demurrer. Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556. Furthermore, “[w]hen a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice a...

Excerpt: ...r these pleaded facts. The demurrer to the First Cause of Action for quiet title must be sustained because the owner of an equitable interest, as here, cannot maintain a quiet title action. (See Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 294-295.) The demurrer to the Second Cause of Action must be sustained because Velocity Support Services received a Certificate of Relief from the State. The Tax and Revenue Code sections cited are not appl...

Excerpt: ...Amended Complaint by these defendants, and granted plaintiff leave to amend. While plaintiff apparently served an amended pleading on Moving Parties, none was filed with the court. The motions were originally heard on 2-22-18, and continued in order for plaintiff to file the amended pleading with the court, but none was filed. The court notes that moving parties filed and served a notice of continuance, but proof of service of that notice was def...

Excerpt: ... 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.” Moving Party shall file and serve a declaration detailing compliant meet and confer efforts no later than five court days prior to the continued hearing date. ...

Excerpt: ...016, and continuing with monthly payments of $300 each, starting in May 2016 and continuing thereafter. A judgment can be entered reflecting the terms of the settlement as provided for in the transcript of the April 15, 2016 proceeding. But the court cannot add to the terms, by having the future payments that Defendants agreed to make, to be advanced and now declared due and owing. The Defendants did not agree to such a term in their settlement. ...

Excerpt: ... will promote resolution on the merits of all issues between the parties, and Plaintiffs will not suffer prejudice due to the opposition, as Plaintiffs were aware of Defendant's position no later than 01/08/2018. (Code Civ. Proc., §§ 473(a)(1), 576.) Defendant shall within ten (10) days file and serve the second amended verified answer, which is attached to the motion as Exhibit A. Defendant to give notice. ...

Excerpt: ...aracterization of her claimed damages and the evidence and arguments submitted in support of Defendant's motion do not otherwise demonstrate that the Walker standard is met here. Plaintiff to give notice. ...

Excerpt: ...counsels' emails is that defendant agreed to extend plaintiff's time to respond only to other written discovery. The parties agreed to “a reciprocal extension regarding Plaintiff's responses to Defendants' Third Set of Discovery.” (Stone Decl. Ex. 2, emphasis added.) They “agreed Plaintiff's deadline to respond to the subject discovery is continued from Aug. 15th to Aug. 23rd.” (Ibid., emphasis added.) On August 23, plaintiff's counsel so...

Excerpt: ...ount of $240,000, which represents damages from April 2017 through the date of this hearing. Plaintiff has met his initial burden on this motion. The evidence shows plaintiff and FEE entered into the subject settlement agreement, which required FEE to pay certain sums to plaintiff as set forth in paragraphs 2 and 3 therein. (Fakouri Decl. at ¶ 2, authenticating FAC at Exh. A [subject settlement agreement]; Maryam Ewalt Decl. at ¶ 4, Exh. A) The...

Excerpt: ...ntar's trade, business or profession (see Code Civ. Proc., § 483.010, subd. (c); see also Advance Transformer Co. v. Sup.Ct. (Shapiro) (1974) 44 Cal.App.3d 127, 143-144), and he has failed to provide any evidence of any kind in support of the application. (See Code Civ. Proc., §§ 484.090, 481.190, 482.040.) The Case Management Conference remains on calendar. Moving party to give notice. ...

Excerpt: ...this basis in a criminal case by a criminal defendant. This is not a criminal case and moving parties are plaintiffs, not defendants. Moving party also cites 28 USC 1404, which authorizes changes of venue in federal district courts. This authority is not applicable to this state court action either. Rather, the correct authority would be C.C.P. § 397(b): “The court may, on motion, change the place of trial … [w]hen there is reason to believe...

Excerpt: ...e following reasons, Defendants' motions are granted. Plaintiff failed to appear for a defense medical examination noticed for January 4, 2018. Plaintiff did not serve objections to the noticed date or otherwise communicate to Defendants that he would not appear. Defendants have rescheduled the medical examination for April 26, 2018. Plaintiff is ordered to appear on April 26, 2018 at 9:00 a.m. at the offices of Steven Nagelberg, M.D., 10800 Para...

Excerpt: ...likelihood that a fair and impartial trial cannot be had in the county. When a change of venue is ordered by the superior court, it shall be for the trial itself. All proceedings before trial shall occur in the county of original venue, except when it is evident that a particular proceeding must be heard by the judge who is to preside over the trial. (b) On its own motion or on motion of any party, to an adjoining county when it appears as a resu...

Excerpt: ...ed to a corporation's place of incorporation or its principal place of business absent exceptional circumstances. 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. The Neadeau authority simply based on percentage of business conduct by a non-resident corporation in a forum state has thereby been negated as a basis for general jurisdiction. As to specific jurisd...

Excerpt: ...ction 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." Declaration of Steven Fales Exhibits A and B. 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 ... , but a motion based on a forum selection clause ...

Excerpt: ...d motion to compel responses to plaintiff's form interrogatories and special interrogatories by defendant Babette Angelo, pursuant to C.C.P. § 2030.290(b), is GRANTED. Defendant Babette Angelo is ordered to provide responses, without objections, to plaintiff Hughes' form interrogatories and special interrogatories within 21 days of service of a notice of ruling by plaintiff. If defendant Babette Angelo remains incapacitated because of the claime...

Excerpt: ...ial notice is granted. (Ev. 452(d)(1); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) Moving parties to give notice. ...

Excerpt: ...at it is entitled to disgorgement of any profits Bridgemark may have earned due to its operation of the wells which it was required to abandon. It concedes it is not entitled to disgorgement of profits for its contract claims, but contends it is entitled to disgorgement pursuant to its trespass claim and cites Civil Code section 3334, subdivision (a). But that code section says nothing about “disgorgement,” and the moving party fails to provi...

Excerpt: ...zing or referring to any communications Royal Pacific had with Defendant Christopher A. Calderon since January 1, 2016 concerning Royal Pacific's hiring of Calderon. Request No. 7 seeks documents reflecting or referring to compensation and benefits Royal Pacific offered Calderon to become employed at Royal Pacific. Royal Pacific objected to both requests on various grounds and stated that it could not produce any responsive documents because “i...

Excerpt: ...trate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement. … Public policy favors enforcement of arbitration agreements under state law (Madden v. Kaiser Found. Hospitals, Inc. (1976) 17 Cal.3d 699, 706-707), and any doubts as to whether an arbitration clau...

Excerpt: ... offer and the signed written agreement providing for binding arbitration in reply by Ms. Andrea Mullens, defendants carried their burden of establishing a written agreement containing a provision for binding arbitration entered into with plaintiff Tara Johnson. Also, this written agreement evidences that plaintiff Johnson's FEHA claims for harassment, discrimination, retaliation, and related employment claims are within the scope of this agreeme...

Excerpt: ...e defendant Ford Motor Company filed a motion to compel a vehicle inspection. It appears that the vehicle was last in the possession of the defendant and it has since been sold at auction. Under those facts, it must be assumed the defendant knew, or should have known, at the time the vehicle inspection request was made and the motion to compel was filed that the plaintiff did not have the vehicle. The motion is DENIED. The motion appears to have ...

Excerpt: ...ngful termination under the Fair Employment and Housing Act (“FEHA”). The motion is DENIED as to paragraph 59. This paragraph simply states a required element of a cause of action for intentional infliction of emotional distress – namely, that the conduct complained of was either intentionally hurtful, or done with reckless disregard for probability of causing emotional distress. See, e.g., Hughes v. Pair, 46 Cal.4 th 1035, 1050-1051 (2009)...

Excerpt: ...are in Kansas, it has a facility in Sacramento, California, where it repairs and operates aircraft. When a defendant moves to quash service 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. Plaintiff contends that the Court has specific personal jurisdiction over the moving defendant. According to a rec...

Excerpt: ...capacity of the person who is signing the Verification on behalf of the responding party and fails to state where the Verification was executed and on what date. (See Exh. C to Saghera Decl.) An unverified response is the equivalent of no response at all. (Appleton v. Superior Court (Cook)(1988) 206 Cal.App.3d 632, 636.) To the extent Cross-Defendant PRELUDE has not already produced responsive documents, the Court ORDERS Cross-Defendant PRELUDE t...

Excerpt: ...9). The Complaint alleges Defendants “were negligent, reckless and careless in their business operations” and were negligent, reckless and careless “in their provision of mail box and mail related services to the plaintiffs.” (Complaint, ¶ 9). The above statements are mere conclusions which do not identify the underlying supportive facts. Plaintiff has failed to sufficiently plead or ordinary duty of care or breach of that duty. (Berkley...

Excerpt: ...irmative defense “fails to state facts sufficient to constitute a defense.” Code of Civil Procedure section 430.20 states, “(a) A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: [¶] (a) The answer does not state facts sufficient to constitute a defense. [¶] (b) The answer is uncertain. As used in this subdivision, ‘uncertain' ...

Excerpt: ......

Excerpt: ...AMS where the underlying controversy must be arbitrated.” (Motion pg. 7:5-8.) Plaintiffs' “Introduction” to its Opposition states, “because (i) this motion involves, inter alia, the question of whether Defendants waived any right to arbitrate by suing plaintiff Michael Baker in Tennessee without mentioning arbitration, and (ii) that very issue is already pending in Defendants' fully-briefed motion to compel arbitration before the Tennesse...

Excerpt: ...on.) This appears to be a result of Plaintiffs' assertion Defendant failed to serve verifications to the discovery and“[u]nsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Significantly, however, "there is no need to verify that portion of the response containing the objections." (See Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657.) Taking the...

Excerpt: ...me before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” “Courts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown. However, even if a good amendment is proposed in proper form, unwarranted delay in presenti...

Excerpt: ...tions have the same title, the court will identify them based on the date and time Plaintiff filed each of them with the court. Defendant's (Dan Fisher) Motion to Compel Responses to Specially Prepared Interrogatories (filed on 2-2-18 at 10:33 a.m.) is DENIED. The court notes that this motion applies to Defendant's request for a further response to Form Interrogatory 9.1(c). (Holzer Decl., ¶ 5.) Code of Civil Procedure section 2030.220, provides...

Excerpt: ...In addition, this motion is not timely pursuant to CRC 3.110(b) because it was filed after 60 days of the filing of the Complaint. The court schedules a Case Management Conference for 5-15-18, Dept. C11, at 8:45 am. Prevailing Party is to give notice. (2) Plaintiff's Motion for Leave to File a Second Amended Complaint is GRANTED. There does not appear to be any undue prejudice to Defendants in granting Plaintiff leave to file a Second Amended Com...

Excerpt: ...at a student has a privacy interest in these documents. Although the court will not remove Exhibit G—Tab 6 and Exhibit J from the Administrative Record (AR) conditionally filed under seal, the court orders Respondent to file copies Exhibit G—Tab 6 and Exhibit J unsealed. California Rules of Court, rule 2.550(d), states, The court may order that a record be filed under seal only if it expressly finds facts that establish: [¶] (1) There exists...

Excerpt: ...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 to pay reasonable compensatory legal fees and costs to opposing c...

Excerpt: ... record that she understood and agreed to the terms of the settlement. (See 11-20-17 Minute Order.) The court retained jurisdiction pursuant to Code of Civil Procedure section 664.6. Court clerk is to give notice. ...

Excerpt: ...ate under Code of Civil Procedure section 415.20. Accordingly, Mr. Abdo's suggestion that he is not linked to that address lacks credibility. RP to give notice. It appears Mr. Abdo must explain why, if the address the entity in which he was an officer was listed as 2213 Ringwood Ave, he claims he has no connection with that address. Because the Court cannot consider evidence with any reply documents, the Court will DENY WITHOUT PREJUDICE. ...

Excerpt: ...claim that is not asserted in the Complaint. The facts giving rise to the claim, i.e., the payments totaling $255,000, occurred after Plaintiff filed the initial Complaint. The Complaint frames the issues. Plaintiff did not file an amended or supplemental pleading before bringing this Application. Defendant is ordered to give notice. ...

Excerpt: ...� 2924(a)(6) Plaintiff alleges that Defendant violated Civ. Code § 2924(a)(b) because it really did not have standing to foreclose due to the late assignment of the deed of trust to a trust that allegedly closed in 2006. The doctrine of res judicata, whether it applies as a total bar to further litigation or as collateral estoppel, rests upon the sound policy of limiting litigation by preventing a party who has had one fair adversary hearing on ...

Excerpt: ......

Excerpt: ... ruling, or his Complaint will be dismissed.” Plaintiff did not appear at the hearing on 1/29/18. Therefore, the Court ordered Defendants to give Notice of the Ruling. There is no evidence, however, that either Defendant gave notice to Plaintiff as they were ordered to do. Defendants must file a Proof of Service prior to the hearing on 3/26/18 showing that they properly served notice of the Court's 1/29/18 Minute Order on Plaintiff. If Defendan...

Excerpt: ...f Joanne H. Tagami. Ruling Motion 1: The unopposed demurrer by Defendants Deutsche Bank National Trust Company Americas, as Trustee for Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QO1 (erroneously sued as “Deutsche Bank National Trust Company, as trustee) and Nationstar Mortgage LLC (erroneously sued as “Nationstar Mortgage, LLC, as loan servicer) to the Second Amended Complaint (“SAC”) is SUSTAINED without leave to amend...

Excerpt: ..., Writ of Attachment, and Temporary Restraining Order. Moving Party Plaintiff Jessica M. Costa. Responding Party Defendant Holden Johnston. Motion 4: Application for Right to Attach Order, Writ of Attachment, and Temporary Restraining Order. Moving Party Plaintiff Jessica M. Costa. Responding Party Defendants Luis Ibarra and Karina Carrillo Ibarra. Ruling Motion 1: Defendants' demurrer to the first cause of action for fraud is SUSTAINED as to Def...

Excerpt: ... economic advantage in the Fourth Amended Complaint filed by Plaintiffs Michael P. Schaefer and MPSCHAEFER, LLC. The Court notes that although Mater Dei High School is a moving party on the Demurrer, it is not a Defendant named in the sixth cause of action. Tortious Interference with Prospective Economic Advantage Defendants correctly argue that, to state a claim for intentional interference with prospective economic relations, Plaintiff must all...

Excerpt: ... to amend. The demurrer to the sixth cause of action for civil conspiracy is overruled. 4th, 5th COA – Fraud and Negligent Misrepresentation To state a claim for fraud or negligent misrepresentation, a plaintiff must allege, among other things, that the defendant represented to plaintiff that a fact was true and defendant's representation was false. CACI no. 1900; Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166 (in...

Excerpt: ... but not the truth of statements of fact recited within the documents. Evid. Code § 452(h); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1116-1118, as modified (July 24, 2007). By her First Amended Complaint, Plaintiff asserts a single cause of action for rescission based on alleged violations of the federal Truth in Lending Act and Regulation Z. Although Plaintiff alleges “DiTech did not supply the fol...

Excerpt: ...d [they] ultimately will prevail on the merits and the relative interim harm to the parties from the issuance or nonissuance of the injunction.'” (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1449.) Plaintiffs may have shown some likelihood of prevailing to some extent on their claims. But their alleged losses could be “adequately compensated by a judgment for money damages.” (Abrahms v. St. Johns Hosp. & Health Ctr. (1994) 25 Cal...

Excerpt: ...008) 167 Cal.App.4th 567, 625; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1192-1193; Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160. Plaintiff has not shown additur would be appropriate. Defendant shall give notice. ...

Excerpt: ... in California and Nevada that permit out of state depositions. There is no authority for the relief requested in this Motion. Plaintiff to give notice. ...

Excerpt: ...able injury. See Jessen v. Keystone Savings and Loan Assoc. (1983) 142 Cal. App. 3d 454, 459. If plaintiff fails to establish either element, a preliminary injunction should be denied. Id. Even if the Court were to assume, for purposes of argument, that Plaintiff had demonstrated a likelihood of prevailing on the merits, Plaintiff here has made no showing that it will be harmed – much less that it will suffer irreparable injury – if the chall...

Excerpt: ... the merits of the case.'” (Factor Health Management, LLC v. Superior Court (2005) 132 Cal.App.4th 246, 251.) Defendants filed written opposition and appeared at the hearing without stating they were making only a special appearance. Nor did they otherwise contest personal jurisdiction. And they did not file this motion to quash until 21 days after the 10/30/17 hearing. The clerk shall give notice. ...

Excerpt: ...riefing and continued the hearing. The Court incorporates its 1/29/18 Minute Order by reference. The sole remaining issue is whether the Court can consider extrinsic evidence to interpret the location of easements set forth in the parties' Settlement Agreement (the “Agreement”). Shortly after the parties signed the Agreement, Plaintiff filed a “Notice of Settlement of Entire Case.” Now, however, obviously suffering from a case of buyer's ...

Excerpt: ...e protected or permissive phase at the time of the accident. If the traffic signal was in the protected phase, then the City's use of a “protected-permissive” signal instead of a “protected-only” signal may not be a substantial factor in causing the accident. Moreover, defendant failed to show no triable issue exists as to all pleaded dangerous conditions. Its motion does not address the contribution of the “roadways” to the accident....

Excerpt: ...ns are OVERRULED. Good Cause The court finds that the 9/22/17 letter attached as Exhibit 8 to declaration of Mary Tanagho Ross provides a sufficient a good cause showing for RFP Nos. 26-43. Duplicative Requests Plaintiff argues that the requests in Defendant's second request for production are duplicative of Defendant's previous requests. Defendant's prior requests broadly sought all documents relating to Sullivan's billing records, payments made...

Excerpt: ...s that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413.) In fact, the parties seem prepared to stipulate to binding arbitration on these terms:  the arbitrator shall be Judge Russell Bostrom (ret.) with Judicate West  the arbitration will be “conducted in the same manner as a bench trial and the California Code of Civil Procedure shall apply ...

Excerpt: ...acie showing is one that is sufficient to support the position of the party in question.” Id. at p. 851. A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. Code Civ. Proc., § 437c, subd. (p)(2). The scope of this burden is determined by the allegations of the plaintiff's complain...

Excerpt: ...he court is inclined to continue this hearing, and stay all other discovery in this matter, until the defendants are properly accounted for. On the merits, the court would be inclined to grant plaintiff's Motion to Compel Deposition of David Wetzel and Production of Documents. The deposition subpoena and this motion were personally served on the third party deponent. The third party deponent made no objections to the subpoena, failed to appear fo...

Excerpt: ... an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”) Accordingly, the trial court must “review and approve” a PAGA settlement. Cal. Lab. Code § 2699(l)(2). There is little direction in either the statute or the cases as to the court's responsibility in connection with the required approval. However, § 2699(e)(2), auth...

Excerpt: ... court within 60 days after the filing of the complaint”).) Plaintiff shall do so within the next two days. Per the moving papers, a settlement was reached between Plaintiff and the Defendant in March of 2017, pursuant to a written Settlement and Mutual Release Agreement which the movant seeks to enforce. While a copy of a detached stipulation page regarding entry of judgment is provided, a copy of the settlement agreement is not provided to th...

Excerpt: ...e Defendant has waived service of the summons and Complaint and has consented to this Court's exercise of jurisdiction. Defendant consented to jurisdiction because he made several general appearances by attending multiple CMC's, in person, by telephone, and through counsel. Defendant invoked the jurisdiction of the Court by requesting continuances of the CMC -- to allow him to negotiate settlement, to retain counsel, and to file an answer or demu...

Excerpt: .... Cross-Defendants /Cross-Complainants AAPER Holdings Inc. Motion requesting a finding that the settlement by and between Plaintiffs Andrea R. Moni & Fabian E. Moni and Cross- Complainant/Cross-Defendant Christopher Moore, MD is not in good faith is Denied. In determining the issue of the good faith of a settlement, the question is “whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional sha...

Excerpt: ... range of their proportional share of liability for plaintiff's alleged damages. The settlement is not so far out of the ballpark as to be inconsistent with the equitable goals of CCP §877.6. Plaintiff has agreed to allocate $181,885 of the $1,875,000 WRAP policy limits settlement to window defects, which will offset any judgment plaintiff obtains against Milgard. That figure was reached based on 10% of a vinyl window replacement cost estimate o...

Excerpt: ... for pure questions of law” and thus improper. (Opp. p. 3.) But the RFAs are as to coverage issues, and as to whether Exir was an insured. (Lehavi Decl. Exs. 3 & 5.) RFAs which require application of facts to law are permissible. (C.C.P. § 2033.010; Cembrook v. Superior Court In and For City and County of San Francisco (1961) 56 Cal.2d 423, 429 [that a request is “for the admission of a controversial matter, or one involving complex facts, o...

Excerpt: ... confer requirements of CCP 430.41. Defendant must first make reasonable attempts to comply in good faith with the requirements of CCP 430.41. Once Defendant has completed those efforts, it may refile its demurrer. Defendant's counsel may not charge his client for the new filing fee or for any additional fees incurred in redrafting and refiling the demurrer papers. First, Ramos states that tried to initiate contact with Plaintiff on 2/6/18, by te...

Excerpt: ...all be submitted as well. As to the Settlement: 1. Please provide estimates and calculations for the total potential value of all claims. Also, the class size of 1,983 was as of 07/31/17. (Settlement ¶¶ 1.39, 3.1.) Please provide an update on the class size and provide calculations based on the revised class size. 2. As to the requested enhancement payment, at final approval Plaintiff is to submit a declaration that addresses the factors set fo...

Excerpt: ...to the Court in the moving declaration of B. Hughes, it appears that counsel for Plaintiff, counsel C. Park, simply responded to Defendants' electronic correspondence by “respectfully disagree[ing]”. (Hughes Decl. ¶ 3). From this, the Court will conclude that Mr. Park did not satisfy the meet and confer requirement. Further, Plaintiff failed to present a timely written opposition to the demurrer and motion to strike, which are directed to al...

Excerpt: ...s supposed to plead facts. The Court can generally disregard contentions, or conclusions of law or fact at the demurrer stage. (WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151; Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-20). A complaint should allege with reasonable particularity the facts supporting the statutory elements of a...

Excerpt: ...appears that no final judgment on the merits was entered in the prior action. (Opp RJN Exs. 1-5; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) The Demurrer on res judicata grounds is therefore Overruled. The Demurrer also asserts that the entire action is time-barred, but that has not been established for purposes of demurrer. The Complaint alleges that Patel, through “Mortgage Corp.”, entered into a Mortgage Broker Business ...

Excerpt: ...support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development v. Nakashima(1991)...

Excerpt: ... 196 Cal.App.4th 1366, 1375 [internal citations omitted].) A party is indispensable where the plaintiff seeks a type of affirmative relief that, if granted would affect the interest of a third person not joined. (Sierra Club, Inc. v. California Coastal Comm. (1979) 95 Cal.App.3d 495, 501; Code Civ. Proc., § 398, subd. (a).) In other words, Plaintiff is required to join as parties to the action any person whose interest is such that any judgment ...

Excerpt: ...ith 15 days leave to amend. The demurrer as to the seventh and ninth causes of action, is sustained without leave to amend. The Kimbark Defendants' request for judicial notice is granted. Third Cause of Action for Intentional Interference With Prospective Economic Advantage The elements of intentional interference with prospective economic advantage are “(1) the existence, between the plaintiff and some third party, of an economic relationship ...

Excerpt: ...nternal citations omitted].) Defendant contends the five causes of action in the Complaint asserted against him (i.e., the first, second, third, seventh, and eighth) are subject to a general demurrer because they are time-barred, and Plaintiff fails to allege the debtors transferred property to Defendant. Under the first, second, and third causes of action, Plaintiff seeks to void certain transfers of cash from debtors to Defendants under the Uni...

Excerpt: ...vidual settlement. Paragraph 34 of Neil Pedersen's declaration says that counsel is getting 40% and plaintiff is getting the other 60% minus costs. But paragraph 1 of the Settlement Agreement and General Release reflects that counsel is getting 50% for fees, 40% is going toward liens, and plaintiff is getting 10% herself. Plaintiff must clarify, since this information could be relevant to the PAGA settlement. Section 6(d) of the PAGA Settlement A...

Excerpt: ...elevant evidence is admissible by judicial notice.” (Golden Gate Land Holdings LLC v. East Bay Regional Park District (2013) 215 Cal.App.4th 353, 366.) The Court did not consider the federal district court cases against Holding Corp. in ruling on this motion, so specific orders and documents in those cases are not relevant. The threshold issue of whether Plaintiffs are employees of Imperial Girls and/or IEC is not at issue here. (ROA 122, Motio...

Excerpt: ...Compant; defendant Equity Funding is the deficiency judgment assignee. This is a motion to quash by MSMC, and a motion to strike by Equity. MSMC's Motion to Quash The motion is Granted. MSMC's motion to quash is based on this Court's putative lack of personal jurisdiction over the entity. As the undisputed evidence shows (per Daste Declaration):  MSMC is a Delaware Limited Liability Company, with its principal place of business in Louisiana; �...

Excerpt: ...el. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4 th 39, 46-47; Harrison v. County of Del Norte (1985) 168 Cal.App.3d 1, 7.) Furthermore, counsel's alleged inability to obtain all documentation, and alleged failure to identify the correct entity, do not constitute excusable neglect. (Munoz, supra at 1785; Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1295.) In the reply, moving party argues that he was...

Excerpt: ... potential claimants. However, the Notice of Intent to Deposit Surplus Funds was only given to three of the potential claimants; Real Time Solutions, James Robertson as Executor for Trustor, and RHFD Pebble, Inc. (Pet. Attachment 13). Under Civ. Code § 2924j(d), this notice must be provided not only to those entities /individuals who made claims with the foreclosure trustee, but also all parties with a recorded interest in the property as of the...

Excerpt: ...26-27; Tenzera, Inc. v. Osterman (2012) 205 Cal.App.4th 16, 21. Plaintiff shall present the Court with the interest calculation at this hearing. (See CCP §1287.6; Civil Code §3289.) In addition, Plaintiff shall give notice. ...

Excerpt: ...dow. Judgment creditor has also established that he filed a copy of the application with the levying officer within the 20 day window on 1/8/18 in compliance with CCP § 704.705. However, moving party has not sufficiently addressed the admittedly questionable liens on the property. Even an apparently fraudulent lien must be provided for in the order of sale if it is superior to the judgment creditor's lien. The creditor's only recourse is to file...

Excerpt: ...ses of action: Violation of Cal. Civil Code § § 2923.55 and 2923.7, Negligence and Unfair Business Practices. However, the second and fourth causes are not pled against the moving defendant. The only causes pled against Trustee Corps are the First Cause of Action for Violation of CC §§ 2923.55 and the Third Cause of Action for Negligence. First Cause of Action - Civil Code §§ 2923.55: The moving party Trustee Corps. has presented evidence t...

Excerpt: ...m a cause of action for wrongful death under Code of Civil Procedure section 377.” (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 831.) Where, as here, Plaintiffs have joined a wrongful death claim with survivor causes of action, Plaintiffs can recover punitive damages in connection with the survivor claims. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 616, fn. 14.) The court declines to consider Defendant's argument that the allegations...

Excerpt: ...bers” 3. Para. 18, p. 4, l. 26: “and the Class Members” 4. Para. 18, p. 4, l. 27: “and the Class Members” 5. Para. 18, p. 5, l. 2: “and the Class Members” 6. Para. 19, p. 5, l. 5: “and the Class Members” 7. Para. 20, p. 5, l. 9: “and the Class Members” 8. Para. 21, p. 5, l. 11: “and the Class Members” [nos. 1-8 have already been deleted and are not found in the Corrected 6AC] 9. Para. 25, p. 5, ll. 25-26: “and is in a ...

Excerpt: ...erlin, M.D., Thomas Nass, M.D., and Lawrence B. Werlin, M.D., Inc dba Coastal Fertility Medical Clinic are Denied. Plaintiffs have not at this time established the required “good cause” under CCP 2031.310(b)(1). The information requested is private, highly sensitive medical information of non-parties. To establish the required good cause, it must be demonstrated that the information sought it “directly relevant” and “essential to the fa...

Excerpt: ...nd if she wishes to assert an individual claim for any alleged violations of Labor Code §§201 and 202, since her pleadings do not allege any such violation as to her personally. However, any such claim would be subject to arbitration pursuant to the parties' written agreement to arbitrate. The court in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 381, drew a distinction between civil penalties recovered on behalf of t...

Excerpt: ... class claims set forth in first through seventh causes of action, to allow him to proceed in court with his eighth cause of action for PAGA violations, and to deny the motion to arbitrate as moot. (ROA 271.) Although it is not expressly stated, the Court construes Petersson's request to dismiss the first through seventh causes of action as a request to dismiss the claims in their entirety—both class and individual claims. Petersson is to confi...

Excerpt: ...treated as a procedural statute that does not conflict with the FAA. The parties can agree that the CAA and California law applies. (Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 470; Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 386.) Here, ¶ 22 B seems to show that the parties intended for the California Arbitration Act (CAA) and its procedures to have som...

Excerpt: ...f calendar. The court concludes that a valid arbitration agreement exists, that plaintiff's claims of unconscionability are unsupported by the language of the arbitration agreement and the law, and that defendant did not waive its right to arbitrate. Plaintiff has failed to meet her burden of proving the facts of any defense to enforceability. Chin v. Advanced Fresh Concepts Franchise Corp. (2011) 194 Cal. App. 4th 704, 708. The arbitration agree...

Excerpt: ...”) objected to the subpoena at issue - although Daichi did so without stating any grounds. (See 2/15 Russo Decl., Exs. B-F.) MPs attempted to meet and confer to resolve those objections, without success. (Id. at Exs. G-L.) For Motion 2, Mr. Sivongsay objected to the subpoena at issue (See 2/22 Russo Decl., Exs. A-C.) MPs attempted to meet and confer to resolve that objection, without success. (Id. at Exs. E-K.) Potential relevance is clearly sh...

Excerpt: ...ill be effective on the filing of the proof of service of the Order upon the client. Motion for Entry of Judgment The Court's current thinking is to GRANT the motion for entry of judgment and ACCEPT Gray1's proposed judgment because it better protects Gray1's right to be paid on its judgment lien before Gulfstream can obtain title and possession to the foreclosed properties. That being said, the Court is considering delaying entry of judgment in ...

Excerpt: ...Co., Inc. v. Harrison(1981) 125 Cal.App.3d 436, 442. Here, the TAC seeks, inter alia, damages of $2,085,488.22, including $267,800.00 in attorneys' fees. TAC at 64-66 (Prayer for Relief). This is a material change from the Second Amended Complaint (SAC), which sought various types of alleged damages “according to proof at trial,” injunctions, and costs and attorneys' fees. SAC at 64-66 (Prayer for Relief). Defendant is therefore entitled to r...

Excerpt: ...y stayed during appeal. However, under C.C.P. § 917.1(a)(2), a cost award for expert witness fees claimed under C.C.P. § 998 is an exception to that rule. (See Quiles v. Parent (2017) 10 Cal.App.5th 130, 143 [expert witness fee award under § 998 is not, on its own, a money judgment under §917.1(a)(1): instead, it resides in a separate category that requires a bond for a stay on appeal under §917.1(a)(2).].) The Amended Judgment includes an a...

Excerpt: ...rise, mistake or excusable neglect. Defendants argue that the court should set aside the defaults and default judgments entered against them. See Cal. Civ. Proc. Code § 473.5. Defendants submitted a proposed answer to Plaintiff's First Amended Complaint with their motion. See Stopani/Laguna Decl. Ex. A. For the following reasons, Defendants' motion is granted. The court finds Defendants made their motion within the time period specified in secti...

Excerpt: ...f Proof As the moving party, Handler LLC has the burden of proof on two interrelated factors: (1) the likelihood that the moving party will prevail on the merits, and (2) whether the harm Handler LLC will likely suffer if injunctive relief is denied outweighs the harm Defendant BOFI Holding Inc. is likely to suffer if injunctive relief is granted. (O'Connell v. Superior Court (2006) 141 Cal. App. 4th 1452, 1481; Ketchens v. Reiner(1987) 194 Cal.A...

Excerpt: ...��FTAs”). A party seeking to defeat a forum selection clause bears the “substantial burden” of demonstrating that enforcement of the clause would be unreasonable. (CQL Original Products, Inc. v. National Hockey League Players' Association (1995) 39 Cal.App.4th 1347, 1353-1354; Miller-Leigh LLC v. Henson(2007) 152 Cal.App.4th 1143, 1149.) Plaintiffs have not done so here. Nor is there any apparent basis for the claim that FTAs were not part ...

Excerpt: ...owing in the Court records as having been actually filed, at the time of receipt. The Court did not review the submission and will return the submission to Ms. Galian unless the fact of service, and filing, are established by Ms. Galian, at the time of this hearing. Further, the Court would like to provide the cross-defendants adequate time to receive and respond to the documents, as well as the same for the Court. The hearing will likely be cont...

Excerpt: ...intiff to give notice. Plaintiff SP Star Enterprises, LLC's Motion to Compel Further Responses to Special Interrogatories Plaintiff SP Star Enterprises, LLC, moves to compel further responses to Special Interrogatories (Set Two). Plaintiff's motion is granted. Defendant Madain must provide further, complete responses to Special Interrogatory Nos. 71, 83, 85, 86, 90, 91 and 97. These interrogatories are within the scope of discovery. Defendant Mad...