Excerpt: ...ck Eisen in its responses to Special Interrogatory Nos. 2, 4, 6, 8 and 10. After Plaintiff filed this motion, Defendant agreed to produce Eisen for deposition and to accept a subpoena on his behalf. Defendant also provided Plaintiff with second supplemental responses to Special Interrogatory Nos. 2, 4, 24, 32 and 34 on March 7, 2018. Plaintiff did not address these issues or interrogatories in his reply. Accordingly, the court finds Plaintiff's m...

Excerpt: ...0(c), 2031.300(c), and 2025.450(h).) Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery, but continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Here, the evidence presented demon...

Excerpt: ...ts, which were filed without leave of court and violation of the California Rules of Court. A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue of any material fact and that the moving party is entitled to a judgment as a matter of law.” Cal. Civ. Proc. Code § 437c(c). For the following reasons, Defendant's motion for summary judgment is granted. In her third cause of action, Ogle a...

Excerpt: ...nsurance Company's summary judgment motion under seal. Defendant's summary judgment motion is scheduled for hearing on March 22, 2018. Defendant Scottsdale Insurance Company designated some of the documents Plaintiffs seek to file under seal “confidential” pursuant to the Protective Order in this case; Plaintiffs designated other of the documents they seek to file under seal “confidential” pursuant to the same order. Defendant did not fil...

Excerpt: ...ion as one for personal injury and property damage. Her proposed pleading included a single cause of action for injuries arising out of an automobile accident occurring on 06/19/15. There were three named defendants (Arredondo as driver, Rogue as driver, and Jones as owner). Plaintiff's petition was granted (see ROA 3). On 08/17/17, plaintiff filed a First Amended Complaint. Although she was technically entitled to do so without prior approval (s...

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

Excerpt: ...Civil Procedure §483.010(a). The plaintiff has established through the declaration of its vice president and custodian of records that as of June 2017, the principal amount owed to plaintiff is $41,954.66. Declaration of Parker. The Plaintiff met its initial burden of establishing a prima facie showing of prevailing on its claims against Defendants. In response, the defendants have presented no evidence which supports a finding that the plaintif...

Excerpt: ...any evidence supporting this assertion. Moreover, Defendants also state that “Defendants stand ready to produce the Person Most Qualified and service personnel from Premier Chrysler Jeep of Placentia at a mutually agreeable date and time for deposition so long as those depositions take place at the dealership.” Id. at 2:17-19. Thus, while Defendants appear to contend that these deponents are not party- affiliated witnesses, Defendants also st...

Excerpt: ...s personal property. Ultimately, the Appellate Court in Regent Alliance Ltd. cites elements of conversion in a dispute in which each side sought control over and possession of an alleged other party's personal property. “Conversion is generally described as the wrongful exercise of dominion over the personal property of another. The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the...

Excerpt: ...by the economic loss rule and that it is improperly duplicative of the second cause of action for breach of contract. Cross-defendant URS cites Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988, for the proposition that where a party seeks to recover economic loss allegedly caused by defective services, that party's remedy is in contract alone. Cross-defendant URS contends that construction service providers do not owe a duty...

Excerpt: .... Motion 1: The motion by defendants to stay civil case pending resolution of criminal cases is DENIED. Defendants Anthony Nguyen and Toan Thai are currently in default, and thus, they do not have the right “to take any further affirmative steps in the litigation until either [the] default is set aside or a default judgment is entered.” See Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc., 155 Cal.App.3d 381, 385 (1984). As for defendant Minh Ngu...

Excerpt: ...n on the merits of any disputed issue, a statement of the total hours spent and the total fees charged by the referee, and the referee's recommended allocation of payment. The referee shall serve the report on all parties. Any party may file an objection to the referee's report or recommendations within 10 days after the referee serves and files the report, or within another time as the court may direct. The objection shall be served on the refer...

Excerpt: ... verified, no verification is necessary where it contains only objections.) During their meet and confer meetings, counsel for the parties agreed that the deadline for filing a motion to compel a further response would be December 26, 2017 and then February 16, 2018. (See Exhibits F and G.) As such, the motion, which was filed on February 15, 2018, is timely. A party moving to compel a further response to interrogatories need only show that the a...

Excerpt: ...settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” Here, plaintiff and defendants Tri-Emerald Holdings, Jacques Poujade, GemTK Realty, Inc., and GemTK.com LLC, entered into a settlement agreement on June 10, 2017 in which Tri- Emerald Holdings agreed to make specified payments to plaintiff and Mr. Poujade agreed to personally guarantee the payments. The parties further a...

Excerpt: ...m in her bankruptcy petition, and therefore the claims are part of the debtor's bankruptcy estate and have not been discharged. (11 U.S.C. §541(a)(1); Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4 th 1602, 1609.) Second, the express terms of the written Deed of Trust submitted by Defendant in support of the Demurrer reflects different terms than those expressed in the FAC. The court treats the facts asserted in the FAC as mere s...

Excerpt: ... Cal. 1977) 441 F.Supp.792, 796.) Here, there has been no showing of prejudice to Californian creditors and, thus, Defendants' first basis for Demurrer fails. Additionally, pursuant to the Order appointing Plaintiff as Receiver: “Receiver, as an officer of this Court, shall immediately have and take possession and custody and control of all ‘Collateral' securing the obligations of Proove to Leavitt under the Note and Security Agreement, as bo...

Excerpt: ...Cal.App.4 th612, 616.) The court finds the facts pled as to these causes of action are not so uncertain that Defendant cannot reasonably respond. Second as to the fifth cause of action, Plaintiff pled sufficient facts showing that he relied on Defendant's misrepresentation (“experienced and knowledgable”) by entering into a contract based on this misrepresentation. (FAC, ¶¶ 10-13.) Third, as to the fifth cause of action, Defendant contends ...

Excerpt: ...r other decision, or the verdict or other decision is against law. [¶] A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision . . . unless after weighing the evidence the court is convince from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” “When a trial court rules on a motio...

Excerpt: ...t for Production “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” "Good cause” for production of documents may be established where it is shown the request is made in good faith and the documents sought are relevant to the subject matter and material to the issues in the litigation. (Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 588.) Request No. 21 seeks: “Al...

Excerpt: ... of the motion in order to decide if it should award attorney fees and costs to the defendants. [Citations.]” “ . . . [W]hen plaintiff dismissed its case at a time when defendants' anti-SLAPP motion was pending, the trial court continued to have jurisdiction over the case only for the limited purpose of ruling on the defendants' motion for attorney fees and costs.” [Citations.] (Ibid.) The Special Motion to Strike brought by Defendants Dana...

Excerpt: ......

Excerpt: ...an agreement can be reached that resolves the objections to be raised in the motion...” and file a declaration with their moving papers, pursuant to Code Civ. Proc. § 435.5(a)(3). The statute became effective on 1/1/2018 and therefore was in effect prior to the filing of Defendants' motion. On or before April 10, 2018, Defendants shall efile and serve a declaration that complies in full with Section 435.5(a)(3), confirming that they have met a...

Excerpt: ...that unless properly scheduled (Cusano v. Klein (9th Cir. 2001) 264 F.3d 936, 945- 946). A debtor who files bankruptcy is no longer the real party in interest, and lacks standing to proceed on claims belonging to the bankruptcy estate. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.) Finally, plaintiff failed to show the underlying judgment awarded contractual attorney fees. (See Code Civ. Proc., §§ 685.040, 1033.5(a)(10)(A); ...

Excerpt: ...f met his burden to show the arbitration agreement is too unconscionable to be enforced. (Code Civ. Proc., § 1281.2(b).) Plaintiff showed the arbitration agreement is procedurally unconscionable because it was obtained under duress. (See AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1746 [FAA preserves generally applicable state law contract defenses]; Civil Code, §§ 1567 [unconscionability], 1670.5(a) [duress].) Plaintiff credibly de...

Excerpt: ...e ambiguous. Its initial responses imposed unilateral limitations. Its supplemental responses do not fully clarify whether other documents responsive to the original, unqualified requests are in its possession, custody, or control. Defendant shall pay $1500 in discovery sanctions to plaintiffs within 30 days. The motion is otherwise DENIED. Requests #1-2, 5-9, 13, 16-20, 23-24, 34-36, 39, & 43. Defendant's supplemental responses fully clarify it ...

Excerpt: ...s are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made e...

Excerpt: ...cause of action for contractual indemnity. “This ruling finally adjudicates this case. The complaint was previously dismissed. (See 10/7/15 requests for dismissal.) Cross-complainant has now obtained judgment on the pleadings on the sole remaining cause of action. “Cross-complainant shall prepare, served, and submit a proposed judgment.” ...

Excerpt: ...ugh M is granted pursuant Evidence Code §§ 452(c), (d), and (h). 1st cause of action for violation of the HBOR Civil Code Section 2923.6, part of the Homeowners Bill of Rights (HBOR), helps restrict a practice commonly known as “dual tracking,” whereby financial institutions pursue foreclosure while evaluating a borrower's loan modification application at the same time. See Jolley v. Chase Home Finance, LLC (2013) Cal.App.4th 872, 904. Sect...

Excerpt: ... the loan transaction does not exceed the scope of its conventional role as a mere lender of money.'" (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 63.) Thus, a lender does not owe a borrower a common law duty to offer, consider or approve a loan modification, or to offer the borrower alternatives to foreclosure, or to handle the loan in such a way to prevent foreclosure and forfeiture of property. This Court recognizes tha...

Excerpt: ...t City of Westminster. Responding Party Plaintiff Tami Piscotty. Ruling Motion 1: Defendant City of Westminster's Demurrer to the First Amended Complaint is OVERRULED. (CCP § 430.10(e), (f).) Plaintiff here alleges that similar acts of retaliation and/or discrimination began in 2008, have occurred with reasonable frequency, and have not acquired a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798.) Read in the light most f...

Excerpt: ...) 242 Cal.App.4th 651, 660 (trial court erred by using contents of judicially noticeable complaints to resolve disputed issue on demurrer). The deposition testimony of Plaintiff and Mr. Lee is not the equivalent of the unequivocal written discovery responses that were subject to judicial notice in Bockrath v. Aldrich Chem. Co., Inc. (1999) 21 Cal.4th 71. Defendant generally demurred on several grounds. The Court rejected Defendant's arguments tha...

Excerpt: ...dant owed plaintiff a tort duty as no facts show a special relationship existed. (Walker v. County of Los Angeles (1987) 192 Cal.App.3d 1393, 1399.) And, the claim is barred by judicial immunity, which “bars civil actions against judges for acts performed in the exercise of their judicial functions and … applies to all judicial determinations, including those rendered in excess of the judge's jurisdiction, no matter how erroneous or even mali...

Excerpt: ...t as to the truth and legal interpretation of the document. Request for Judicial Notice: The initial issue is to what extent should the court take judicial notice of the prenuptial agreement? Since the agreement was recorded, the court will take judicial notice of its existence. However, the court cannot take judicial notice of the truth of the contents and the legal interpretation of the agreement. “Judicial notice may not be taken of any matt...

Excerpt: ...nts. There is no conflict of interest, because there is no attorney-client relationship. The In re Baird case is completely unrelated to the issues in this case. The case management order does not create an attorney-client relationship between Attorney O'Connor and the other attorneys in the In re Baird product liability case. There has been no confidential communication between Brenes or the Brenes' clients and Attorney. “Our courts recognize ...

Excerpt: ...iday, 2-16-18. This is not a reasonable meet and confer. There is no obligation to extend the deadline for filing motions to compel. Also, plaintiff's counsel has apparently provided defendant with financial information, but has not yet verified the supplemental answers. Defense counsel gave plaintiff's counsel six days to meet and confer before filing the discovery motions is no reasonable, considering that two of those days fell on Saturday and...

Excerpt: ...t in issue. (CCP § 431.30(b)(1); Adventec Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627.) The Second Affirmative Defense (Statute of Limitations) is also adequately pled, given the answer properly cites CCP Section 343. (CCP § 458.) Finally, the demurrer fails to specify the allegedly uncertain aspects of answer. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797 [disapproved on other grounds in ...

Excerpt: ...endant to drill along the side of plaintiff's #3 tooth broke loose and lodged in the portal between the maxilla and sinus cavity. Bijal immediately packed the area and referred plaintiff to an expert who could safely retrieve the broken bur head. The bur was removed the following day. Plaintiff alleges that as a result of the botched extraction, and subsequent remedial procedure, she suffers ongoing physical symptoms. On 01/05/18, this Court gran...

Excerpt: ...d an appropriate amount as required by statute; (iii) there is an overriding need for prejudgment possession; (iv) Plaintiff will suffer a substantial hardship if the application for possession is denied or limited; and (v) the hardship that the Plaintiff will suffer if possession is denied or limited outweighs any hardship on the occupants that would be caused by the granting of the order of possession. MOTION TO STRIKE Plaintiff's Motion to Str...

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: ...erior Court Local Rule 316, which establishes their duty to attend. Plaintiff The Irvine Co. moves to strike Defendant's answer under Local Rule 381. The Court finds that the motion is premature and Denies it without prejudice. Local Rule 316 (E) provides that, absent good cause shown, a failure to appear at an MSC is an unlawful interference with court proceedings, such that the Court may “order the person at fault to pay the opposing party's ...

Excerpt: ... of this date, this task will apparently be completed soon. The court orders Defendants to respond without objection to all discovery orders within ten (10) days. At this time, terminating sanctions would be an excessive penalty. Sanctions must be in proposition to the dereliction. Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604–605. Defendants have paid the previous sanctions, and are ordered to pa...

Excerpt: ... are unopposed. Plaintiff has not presented a triable issue of material fact. (Code Civ. Proc., § 437c, subds. (a), (p)(2); see also, Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412-414.) Plaintiff Nick Guillermo's loss of consortium claim rises or falls, as in this case, with his wife's medical malpractice claim. (Tucker v. CBS Radio Stations, Inc. (2011) 194 Cal.App.4th 1246, 1256.) Defendants Bull and Wong shall give notice of rulings. ...

Excerpt: ...ation, “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (CRC 3.1350(b).) Here, the notice does not state specifically the issues to be adjudicated. Thus, the court will consider only the motion for summary judgment. A plaintiff moving for summary judgment must show tha...

Excerpt: ...efective. Although the motion raises 5 distinct sub-issues, the separate statement does not provide 5 separate headings or 5 sets of facts narrowly and specifically tailored to each of those sub-issues. The separate statement is procedurally defective because it recites the same material facts in the same order for each of the 5 sub-issues. But the sub-issues are sufficiently different from one another that it is difficult for the court to discer...

Excerpt: ...receipt of the notice or surrender possession of the Property; and (iv) that defendant is still occupying the property. First, the plaintiff's evidence fails to affirmatively establish that plaintiff is the successor in interest to the property owner identified in the Lease, or that such property owner's rights under the lease had been transferred or assigned to plaintiff. Second, the terms of the commercial lease between the parties provides tha...

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: ...he motion was not placed back on the November 3, 2017 law and motion calendar. In contrast to the notice, the ex parte application to place the motion back on calendar for January 19, 2018, indicated that Defendants sought sanctions consisting of: (1) terminating sanctions of $100,000 against Plaintiff; (2) dismissal of Plaintiff's First Amended Complaint; and (3) monetary sanctions against Plaintiff and its counsel. The court construes the motio...

Excerpt: ...predominate, resolution in a class context will be more efficient.” (Third sentence of the first full paragraph of page 3 of the order; emphasis added.) Plaintiff also argues that Defendant is required to make a heightened showing before proceeding with depositions of absent class members. Pursuant to CRC, Rule 3.768, Defendant was entitled to notice the depositions without a court order. Because Plaintiff responded with a motion for protective...

Excerpt: ... Contents or a Table of Authorities in violation of the statutory requirements. 2. The notice of motion states that Plaintiff is moving for “Approval of the proposed Class Notice.” However, no proposed Class Notice was submitted to the Court in connection with the motion. 3. The agreement is unclear on the nature of the settlement as it requires both submission of a claim for payment and submission of an exclusion to be excluded from payment....

Excerpt: ...a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. No appearance is necessary today. Issues/Questions to Be Addressed 1. The parties must identify any pending actions of which they are aware that potentially overlap with the claims in this action or which might be impacted by the release included in the Joint Stipulation. If neither party is aware of any such action, they should pr...

Excerpt: ...ment and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues/Questions to Be Addressed 1. The parties must identify any pending actions of which they are aware that potentially overlap with the claims in this action or which might be impacted by the release included in the Joint Stipulation. If neither party is aware of any such action,...

Excerpt: ...ing on the Newport Beach property during the pendency of this litigation. The plaintiff is required to post a bond in the amount of as determined by the Court. The Court needs to know the status of the foreclosure. Probability of Prevailing - CCP § 726 : Where a creditor elects to obtain a personal money judgment rather than enforce his mortgage, the effect of the election is to waive the right to foreclose on his security. James v. P. C. S. Gin...

Excerpt: ...ation regarding the beneficiary dealerships. Defendants are former employees and a direct competitor. Before the Court this day are four discovery motions seeking further responses. In two months there is a motion for an injunction prohibiting defendants from using information obtained from plaintiff (before or within this litigation) which might qualify as a trade secret. Collectively, it is fair to say that the parties are having information is...

Excerpt: ...n.” P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345. Cross-Defendant has not identified any specific prejudice caused by this amendment. The court may entertain short continuance to avoid any potential prejudice, if that becomes necessary. “[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer...

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: ...that the stipulation and protective order that Defendants asked Plaintiff to enter into is the Los Angeles County Superior Court's model protective order. This model protective order is commonly used by parties in civil litigation. The model protective order requires only good faith designation of confidential documents. Designation of confidential documents in bad faith could subject a party to sanctions, as a discovery abuse. It also sets forth...

Excerpt: ...ding in particular, the parties against whom the settlement agreement is sought to be enforced. (See Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 305.) The written agreement at issue here has been signed by all of the parties to this action, which is referenced in the agreement as the “OC COMPLAINT.” And although she is a party to the settlement agreement, Lucy Garcia is only a party defendant in a different action referenced i...

Excerpt: ...the following issue. On 1/22/18 and 1/29/18, in connection with a petition for writ of mandate filed by the Agent defendants against plaintiffs (i.e. defendants Best 4U et al.), the Court of Appeal issued an order that directed that: “On its own motion, this court issues a temporary stay of respondent court proceedings. All trial court proceedings are STAYED pending further order of this Court.” (1/22/18 Order filed herein; see also 1/29/18 O...

Excerpt: ... submitted, a redline version showing all changes, deletions and additions shall be submitted as well. 1. Please provide proof of service of the Settlement Agreement to the LWDA. (Labor Code § 2699(l).) 2. Defendant is to declare whether or not there are any pending PAGA actions or putative or certified class actions with a PAGA claim that overlaps with the claims in this action. 3. Please provide estimates and calculations for Defendant's total...

Excerpt: ...mplaint, that defendant IABA is not vicariously liable for defendant McKay's tortious conduct. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4 th 291, 296-299.) To the extent this cause of action is based on direct liability and duplicative of the 4 th cause of action for negligent hiring/supervision and failure to warn, defendant should have brought a motion to strike. A general demurrer does not lie to only part of a cause ...

Excerpt: ...sts for Admissions (Set One) and Request for Monetary Sanctions Defendant's Demurrer to the First Amended Complaint Defendant American Financial Network, Inc.'s Demurrer to the First Amended Complaint is OVERRULED. Defendant's request for judicial notice is GRANTED. (ROA 49.) Defendant contends that Plaintiff Alejandro Pichardo (“Plaintiff”) has impermissibly split causes of action by virtue of filing two separate actions against Defendant. T...

Excerpt: ... Defendant's objections (ROA 596) are SUSTAINED. Defendant argues that Plaintiffs' claims are barred by the doctrine of res judicata. It argues that there was a court-approved settlement in a separate PAGA action - Thanh Le v. CashCall, Inc., Case No. 2014-00724582 (the “Le Action”), the Le Action was dismissed with prejudice, and both the settlement and dismissal covers the same PAGA penalties and same aggrieved employees over the same alleg...

Excerpt: ...1) are without merit, as the defendant is the party against whom the lease is being asserted, and is therefore the party to be charged in this matter, and defendant does not dispute that it executed the written Lease. Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village Square Venture Partners (1997) 52 Cal.App.4th 867, 877 is distinguishable both factually, and legally, as the tenant in Bed, Bath & Beyond, who had signed the shopping center ...

Excerpt: ... Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789. The parties here do not stand in the same relationship in this, and OCSC Case No. 30-2017-00944517. Additionally, the identical cause of action must be involved in both suits, so that a judgment in the first action would be res judicata on the claim in the present lawsuit (claim preclusion). See Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384. While there are some overlapping factua...

Excerpt: ...ntially the same claim as the second cause of action for equitable subrogation. The Court agrees and the demurrer is SUSTAINED without leave to amend. Furthermore, it appears that the dispute in the Underlying Action is no longer pending and Mercury made its last payment to KB Home in 2015, and that Mercury is simply seeking a declaration that it is entitled to recover some or all of the money it has already paid to KB Home with respect to the Un...

Excerpt: ...le pleadings.] The demurrer is Overruled in part and Sustained with 20 days leave to amend in part, for the reasons set forth below. The Court notes that at pp. 12-13 the FAC contains two paragraphs which are both numbered as paragraph 54. The Plaintiff should correct this clerical error in its SAC. Justifiable Reliance Failure to State a Claim Overruled on this ground. Defendant argues that Plaintiff has failed to adequately plead justifiable re...

Excerpt: ...nd nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. (Code Civ. Proc., § 2032.220.) The plaintiff must respond to the demand within 20 days stating that she will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination. ...

Excerpt: ...tions moving forward on an agreed-upon date is that it is burdensome under Code of Civil Procedure section 2019.030, subdivision (a)(1) for its employees to have to attend a deposition 10 miles from their place of employment as it disrupts business and the employees “rarely produce any useful information”. This statute does not support Defendants' argument. Defendants' five employees [(1) Huntington Beach Chrysler Dodge Jeep Ram's person most...

Excerpt: ...int is verified, the answer shall be verified.”].) Defendants failed to do so. Defendants concede the error, and have attempted to state a Verified Answer in the Opposition. But an opposition brief is not an Answer – a separate Verified Answer must be filed. Defendants are therefore granted 15 days leave to amend, to file an amended verified answer. Plaintiff is to give notice. ...

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: ...l address for the Defendant Tran, the clerk therefore served a copy of the 2/23/18 minute order, upon the Plaintiff's counsel electronically on 2/23. The Court also ordered, “Plaintiff shall give notice”; “Clerk gave telephonic notice to the moving party in regards to the tentative ruling and the continued date. Clerk to give written notice to moving party and moving party to notice other party.” (Mins. filed 2/23/18, Clerk's Certificate ...

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: ...n (1952) 39 Cal.2d 458.) In the case of payment, performance is due at the place where the payment is to be sent. (Hale v. Bohannan, supra, at 39 Cal.2d at pp. 466-68.) The burden is on the moving party to establish the facts to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds. (Fontaine v. Super. Ct. (2009) 175 Cal.App.4th 830, 836.) Here, Defendants fail to meet their burden to show Orange County...

Excerpt: ...tion Costs Petitioner seeks to tax $3,776.23 of the requested $13,240.37 in deposition costs, as excessive and not reasonable or necessary. He takes issue with two items: (1) the charge of $1,876.23 for Respondent's counsel's travel costs for his deposition; and (2) the $2,500 appearance fee for his expert, Dr. Wolfe at deposition. As to the travel costs for Petitioner's deposition, the Court GRANTS Petitioner's request, but in the reduced amount...

Excerpt: ...al.App.3d 1450, 1453-1455; Code Civ. Proc., § 1032, subd. (a)(4).) The per diem cost for having a court reporter present at the trial is recoverable. (See Code Civ. Proc., § 1033.5, subd. (a)(11); Govt. Code, § 68086, subd. (a); Cal. Rules of Court, rule 2.956(c).) The costs for models, blowups, and photocopies of exhibits, and electronic filing fees are also recoverable. (See Code Civ. Proc., § 1033.5, subds. (a)(13) & (a) (14). While Natash...

Excerpt: ...k v. Children's Hosp. L.A., 237 Cal. App. 4th 1454, 1469 (2015); Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) (hereinafter “Murphy”). Except as specifically granted, Defendant's motion is denied. Although the wage and hour claims may be governed by a three-year statute of limitations, the UCL claim is governed by a four-year statute of limitations. The logical result of granting Defendant's motion would be to require requ...

Excerpt: ...y (2010) 187 Cal.App.4th 175, 180.) Palmer has also failed to demonstrate he is entitled to relief under Code of Civil Procedure section 473 on the ground the judgment is void. (See Code Civ. Proc., § 473, subd. (d).) Palmer baldly contends that since the service of process via publication “did not provide [him with] actual notice” of the lawsuit “as he was living out of state,” this somehow “deprive[s] the court of jurisdiction as to ...

Excerpt: ...n the related case, OCSC no. 2016-00880632, the Court GRANTS in part and DENIES in part, as more specifically set forth in the ruling in the related case. The Court notes that the portions of the documents sought to be sealed are virtually the same, except that the page numbers may be different. With respect to those portions of the record receiving approval for sealing, the Court finds: (1) There exists an overriding interest that overcomes the ...

Excerpt: ... trust petition hearing. Two motions (ROA 275 and 295) were filed by Petitioner Deutsche Bank National Trust Company, solely as Trustee for the Securitized Asset Backed Receivables LLC Trust 2007-BR2 (“Trustee”) and two other motions (ROA 302 and 311) were filed by Non-Party WMC Mortgage, LLC (“WMC”). It appears that both the Trustee and WMC are seeking to seal the same or similar records, so the Court will consider the motions together. ...

Excerpt: ...ice was unable to process documents because the case number did not match the records. Furthermore, the rejection notice is dated 12-1-17, which left judgment creditor with a few more days (until 12/7/17) to file the renewal application with the correct case number before the prior renewed judgment enforcement period expired. However, judgment creditor did not do so, and does not explain why. Finally, judgment creditor cites no authority allowing...

Excerpt: ...tiff has not put all of her medical records from her entire life at issue here. However, Plaintiff has put more at issue in this action than her motion suggests. (See Opp, Ex. A, at 6.2 and 9.1.) The Court thus cannot conclude that discovery here should be limited, as Plaintiff proposes (Motion p. 8), to records concerning Plaintiff's “right toe, right foot, left hip and lumbar spine.” The Court will therefore GRANT the motion in part. The su...

Excerpt: ...tiff has not put all of her medical records from her entire life at issue here. However, Plaintiff has put more at issue in this action than her motion suggests. (See Opp, Ex. A, at 6.2 and 9.1.) The Court thus cannot conclude that discovery here should be limited, as Plaintiff proposes (Motion p. 8), to records concerning Plaintiff's “right toe, right foot, left hip and lumbar spine.” The Court will therefore GRANT the motion in part. The su...

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: ...his officer to those for events which occurred on or after 9/30/2011; -For Request No. 2 – excluding materials not in the training file for this officer, such as manuals and other course materials; -For Request Nos. 3 & 4 –limiting production as to any complaints against this officer to those for events which occurred on or after 9/30/2011; For all of the Requests, anything the Court may order produced is to be subject to the terms of the pro...

Excerpt: ...inadequate. Plaintiffs' motion simply repeats the arguments they unsuccessfully made to the jury. The jury awarded plaintiffs only $2,000 in damages based on their allegations of numerous, significant problems with the house they purchased. Plaintiffs' Motion for New Trial is denied. Plaintiffs have failed to establish any of the criteria set forth in CCP §657. The award of damages was adequate. CCP §657(5). The evidence was sufficient to justi...

Excerpt: ...cash and a personal check in the amount of $4,100. According to plaintiff, the teller assured her that while the check could not be cashed, it would be immediately accessible as cash upon deposit (ie, no customary hold to see if the check cleared). Not so. The hold apparently put plaintiff in a bind as she needed funds right away to cover her daughter's tuition and other undisclosed matters. Plaintiff became upset, spoke to the branch manager, an...

Excerpt: ...led to do so. In the SAC, Plaintiff alleges that he was told that the sale date would be on hold until a decision was made on his LMA, and that he did not learn that his LMA had been denied until after the foreclosure occurred. (SAC ¶¶50, 57.) But he does not allege any material misrepresentations about the status of his LMA, or about the date, time, or status of the foreclosure sale. As Plaintiff has failed to cure the defects in this COA, aft...

Excerpt: ...ving papers at 6:12-14. The parties cite Cal. Labor Code § 2699 in support of that proposition. Cal. Labor Code § 2699 does not include that language but reads, in pertinent part: “The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” Cal. Labor Code § 2699(l)(2). The language r...

Excerpt: ... Notice is submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues raised by the Stipulation and/or Plaintiff's Memorandum of Points and Authorities 1. The memorandum of points and authorities states that Plaintiff Miranda filed a similar case against Genex, Case No. 3:17-cv-01438 (USDC, N.Cal.) The parties do not, however, provide any further information regarding the...

Excerpt: ...rt OVERRULES objection to ¶ 30 and SUSTAINS all other objections. The Court OVERRULES objections to the Fichter Declaration (ROA 51) and the Newman Declaration (ROA 79). The Court GRANTS Edison's request for judicial notice. (ROA 46.) General Law Where, as here, a motion for prejudgment possession is opposed, the Court may grant the requested relief if it finds each of the following: (A) The plaintiff is entitled to take the property by eminent ...

Excerpt: ... fails for the following reasons. First, the evidence offered by Plaintiff in support of its motion is not “new.” Plaintiff first raised the issue of the escrow agents' alleged knowledge in 2015 (when it made allegations regarding the same in a related action). It has had evidence regarding Lazo's lack of authority to sell the property since at least 2013 (the evidence comes from a 2013 email in Plaintiff's possession). Second, Plaintiff does...

Excerpt: ... to Strike 4)Plaintiffs Daisy Martinez and Douglas Lindgren's Joinder in Defendant's Motion to Strike Before the Court is Defendant Inter-Con Security Systems, Inc.'s (“Defendant”) motion for an order striking from the record (1) Plaintiff Daniel Piggue's (“Piggue”) Opposition to Motion for Preliminary Approval and all papers filed in support thereof, and (2) and his Reply in support of Motion for an Order to Deem Counsel Inadequate and/o...

Excerpt: ...' attorney cost breakdowns, an Administrator declaration and invoice, and plaintiffs' declarations to support enhancement requests, must be filed no later than 16 calendar days before the Final Fairness Hearing date, to provide enough time for court review. Plaintiffs should explain why their counsel should be awarded 35% of the settlement amount as attorneys' fees, rather than the 33 1/3% which most plaintiffs' attorneys request in these cases. ...

Excerpt: ...erstate commerce); Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1207 (“there was no evidence in the record establishing that the relationship between [plaintiff] ...and [putative employer] ... had a specific effect or ‘bear[ing] on interstate commerce in a substantial way”); Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 688 (“. . . the employee admitted that he ‘attend[ed] meetings, site visi...

Excerpt: ...a ruling in the plaintiff's favor if no controverting evidence is presented. (ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 613; see also Yelp Inc. v. Superior Court of Orange County (2017) 17 Cal.App.5 th 1, at *13-14.) The statements at issue must also be identified with specificity. (ZL Technologies, supra, 13 Cal.App.5 th at 616.) Plaintiff here has offered, en masse, evidence as to the internet activity which supports her clai...

Excerpt: ...101. The Court's Research Attorney, will be available to assist the parties in their meet and confer efforts at that time. The Case Management Conference is also continued to March 8, 2018 at 1:30p.m. The Court recognizes that Defendants (the moving parties) have attempted to meet and confer but is concerned by Plaintiffs' lack of responses to those efforts. The Court notes that on 2/23/18, it addressed motions to compel responses from Plaintiffs...

Excerpt: ...Review Hearing is set for September 7, 2018 at 9:00 a.m. Both sides' Requests for Judicial Notice are granted. Based on Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 386-88, and Esparza v. KS Industries, L.P. (2017) 13 Cal. App. 5th 1228, 1243-46, plaintiffs are required to arbitrate their individual, victim-specific claims, recovery on which they will personally retain, but may have the court determine their representat...

Excerpt: ...sible. Going forward, counsel for all parties, and in particular counsel for Plaintiff, are admonished to timely file his pleadings and briefs, consistent with the deadlines established by the applicable rules of civil procedure. II. Defendants' Demurrer to the FAC Defendants Christopher Wallace, Shawn Dua, Arvin Lal, Ankur Garg, and Fit Life Group LLC demur to all 11 causes of action in the First Amended Complaint filed on 12/27/17 by Plaintiff ...

Excerpt: ...nder the circumstances, the Court finds there is a sufficient mistake, surprise, inadvertence or other basis to grant relief. (CCP §473(b),(d)); Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21–22 (a court retains JD to to set aside dismissal). As a separate matter, the Court may not have had the jurisdiction to enter the dismissals in the first place. As Petitioners argue, the bankruptcy court did not send a certified copy of the reman...

Excerpt: ...ine version showing all changes, deletions, and additions shall be submitted as well. Notwithstanding this continuance, the parties are required to appear on March 2 for the status conference in this case. As to the Settlement: 1. For those claims in the operative 4AC that are not part of this Settlement, Plaintiff intends to dismiss certain claims and pursue others. (Settlement ¶¶ 45, 78.) Moreover, on 02/27/18 Defendant filed a motion to cons...