Excerpt: ...s, circumstances, or law than those before the Court at the time of the original ruling; There is no affidavit stating the elements listed in CCP §1008(a); An unspecified emergency does not constitute a legal basis for a motion for reconsideration; Finally, Pltf also fails to demonstrate grounds for relief under CCP §473(b) as she does not show “mistake, inadvertence, surprise or excusable neglect”; No details of the emergency are provided ...

Excerpt: ... on their MSJ/MSA – they are no more persuasive now; Strike/Tax Costs Continue to 3/14/18 to allow Judgment to be entered. ...

Excerpt: ...ause of action [false imprisonment]: Khoury's case reported in the news is not on point; Sustain without leave to amend; 5 th cause of action [piercing corporate veil]: This is not a proper cause of action or a claim upon which substantive relief can be granted; Sustain without leave to amend; 6 th cause of action [fraud]: Mvng Pty fails to allege justifiable reliance by Khoury; Further, Khoury's allegations are contradicted by exhibits; Sustain ...

Excerpt: ...es and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client. [citations].” Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086–87 Plaintiff alleges the existence of a fiduciary relationship between him and moving Defendants based on the attorney-client relationship. (FAC at ¶ 86). Plaintiff alleges Defendants “owed plaintiff a f...

Excerpt: ...s. ...

Excerpt: ...as of the effective date of this Agreement through the stipulated trial date, herein agreed between the parties, but not yet approved by the court, to commence on or about May 29, 2017.” Reply, Ex 1 However, at the time of the Stipulation, there was noconfirmed date for trial. Neither side addresses the issue of how the deadline to seek to reinstate Suzuki Motor of America is calculated, given that there have been multiple settings for trial, f...

Excerpt: ...ling; There is no affidavit stating the elements listed in CCP §1008(a); Pltf shows no grounds for reconsideration; Finally, Pltf also fails to demonstrate grounds for relief under CCP §473(b) as he does not show “mistake, inadvertence, surprise or excusable neglect”; Deny motion. ...

Excerpt: ......

Excerpt: ...-16: Parties also to meet and confer within 5 court days to agree on the procedure for the production of the proposed sample of 10 Workers' Comp claim files per Pltf. Sanctions: Deny as to both parties. ...

Excerpt: ... Defendants thus ask the court to dismiss the action. “If those costs and fees are not paid within 30 days after service of notice of the transfer order … the court on a duly noticed motion by any party may dismiss the action without prejudice to the cause on the condition that no other action on the cause may be commenced in another court before satisfaction of the court's order for costs and fees. [Emphasis added.]” (CCP 399(a)) Plaintiff...

Excerpt: ...and either party moves for dismissal.” Under subdivision (f)(4), the Court may dismiss a complaint as to a defendant “[a]fter a motion to strike the whole of a complaint or portion thereof is granted with leave to amend the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal. On November 8, 2018, the Court sustained a demurrer to the first amended complaint by defendants Soto and Walswick and ...

Excerpt: ... Partially Lift Discovery Stay Moot based on above. ...

Excerpt: ...ns and shall thereafter enter appropriate orders. Nothing in this section is intended to deprive the court of its power to change the terms of the referee's appointment or to modify or disregard the referee's recommendations, and this overriding power may be exercised at any time, either on the motion of any party for good cause shown or on the court's own motion.” (CCP 643(c)) Attorney Charles Manh, who represents Anh Manh, objects to the refe...

Excerpt: ......

Excerpt: ... well established that ‘California courts “have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others.” [Citation.] Indeed, “it is a rare case in which ‘a court will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present hi...

Excerpt: ...tice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” Code of Civil Procedure section 1987.1, subdivision (b), allows a witness to bring a motion to quash. The subpoena seeks the employment records of FLC present or former employees David Medina, Robert Voss, Frank Leyva, Christo...

Excerpt: ...leading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” First, Plaintiff (Martha Johnson) filed a Notice of Non-Opposition to Defendant's Wells Fargo Motion to Strike Portions of Plaintiff's Second Amended Complaint. Plaintiff does not opposed Defendant's motion. Second, Plaintiff is limited to injunctive relief only pursuant to Civil Cod...

Excerpt: ...licy of permitting trial on the merits' [citation]. [¶] It was his burden to demonstrate ‘that due to some mistake, either of fact or of law, of himself or of his counsel, or though some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order from which he seeks relief should be reversed.' [Citation.]” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4 th 1401, 1410; italics in original.) “A party se...

Excerpt: ....App.4 th 1388, 1402). “Declaratory relief operates prospectively to declare future rights, rather than to redress past wrongs.” (See County of San Diego v. State (2008) 164 Cal.App.4 th 580, 607). “A declaratory judgment ‘serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interest of preventive justice, to declare rights...

Excerpt: ...rovencher (2002) 28 Cal.4th 274, 280-281.) Unless Cross-Complaints can establish at the hearing how they can plead a valid claim, the court will sustain the demurrer without leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723, 742. Cross-Defendants are to to give notice. ...

Excerpt: ...tle Report (Exhibit 1) is DENIED. Plaintiff's request for judicial notice of copies of recorded title documents (Exhibits 2 and 3) is GRANTED pursuant to Evidence Code section 452(h). To the extent that Plaintiff has filed an unlimited civil lawsuit seeking partition of real property, it appears Plaintiff lacks standing to bring a partition action pursuant to Code of Civil Procedure section 872.210, subdivision (b). Plaintiff contends in the oppo...

Excerpt: ...ugh the Opposition states Defendant is in full compliance with the 8-22-17 Minute Order such that this Motion is moot and or should be denied, it does not address counsel's failure to appear at the CMC. Plaintiff also presented evidence in the Reply that Defendant is not in full compliance with the 8-22-17 Minute Order as represented because the Responses included objections and Defendant was ordered to respond without any objections. Defendant a...

Excerpt: ...indicate what, if any, information is currently in Defendant's possession. (See Code Civ. Proc., §2030.300(a)(1).) Additionally, Defendant failed to support any of the objections asserted within the responses and it is unclear whether information has been withheld, on the basis of these objections. Notably, “if a timely motion to compel has been filed, the burden is on responding party to justify any objection.” (See Fairmont Ins. Co. v. Sup...

Excerpt: ...ure section 2033.250, subdivision (a), provides, in part, “Within 30 days after service of the requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared . . . .” Code of Civil Procedure section 2033.260, subdivision (a), explains, “The party requesting admissions and the responding party may a...

Excerpt: ... San Diego (2010) 184 Cal.App.4th 1422, 1428. Defendant opposes leave on the ground that amendment would be futile because this was a “garden- variety fender bender” and his conduct was not “despicable.” Not surprisingly, Plaintiffs characterize the collision and Defendant's conduct differently. Under the well-settled policy favoring amendment, Plaintiffs shall be given an opportunity to file an amended complaint. Plaintiffs are ordered t...

Excerpt: ...to each topic (Similar to Form Interrogatory No. 17.1). Plaintiff did not repeat the topics, but used the same format. Code Civ. Proc., § 2030.090 (b) requires a showing of good cause, which has not been shown. Code Civ. Proc., § 2030.090 (a) requires that the protective order motion must be made promptly. Plaintiff propounded the Special Interrogatories (Set Two) on 12/7/17. Defendant did not act promptly, because it waited until 1/9/18 to fil...

Excerpt: ...dence that (1) there is a valid guaranty, (2) the borrower has defaulted, and (3) the guarantor failed to perform under the guaranty.” Gray1 CPB, LLC v. Kolokotronis (2011) 202 Cal.App.4th 480, 486. Plaintiff has met its initial burden of showing (1) a valid guaranty between Plaintiff and defendant Scott Krelle, (2) the default of the borrower, defendant Advantage Mortgage, and (3) that Krelle has failed to perform under the guaranty despite Pl...

Excerpt: ... Nader Nagy, Magda Giwargi did not have standing to sue for alleged violation of Beter Nashed's constitutional rights (Second Cause of Action): Both Plaintiffs filed an affidavit under CCP 377.32. Therefore, they are permitted to pursue this claim supported as successors-in-interest. They are not making claims as individuals. Plaintiff Nader Nagy sued as the successor in interest of decedent, Beter Nashed. (SAC, page 1, line 26- page 2, line 2). ...

Excerpt: ...t conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence. Galvez v. Frields, 88 Cal. App. 4 th 1410, 1420 (2001). In a medical malpractice action, the evidence must be sufficient to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. Alef v. Alta Bates Hospital, 5 Cal.App.4th 208,...

Excerpt: ...10 days after service of notice of this ruling. The request for sanctions is also GRANTED, as LAFMC has evidently ignored a valid subpoena and has failed to provide any explanation for such conduct in response to this motion. Sanctions are thus imposed against LAFMC under C.C.P. § 2023.030(a) in the amount of $1,260.00, to be paid to Defendants, through their counsel of record, within 20 days after service of notice of this ruling. Defendants ar...

Excerpt: ...(See 2/22/18 minute order.) The FAC “supersedes all prior complaints,” which “cease[] to have any effect either as a pleading or as a basis for judgment.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-1131.) Thus, “the filing of an amended complaint moots a motion directed to a prior complaint.” (Id. at p. 1131.) The court declines defendant's request (made at the 2/22/18 hearing and now preserved f...

Excerpt: ...her litigants and attorneys. Petrosyan v Prince Corp. (2013) 223 CA4th 587, 594, 167 CR3d 141 (self-represented litigants are entitled to same treatment as represented parties); See CRC 1.6(15), which defines “parties” as including both self-represented persons and persons represented by an attorney of record without making any distinction between them). In addition, Plaintiff is admonished to comply with CCP § 1005 with regard to service. P...

Excerpt: ...rs were never provided to Plaintiff in Spanish, even though the terms of the purchases were negotiated primarily in Spanish. Plaintiff seeks to add allegations that, because the Debt Cancellation Agreements are part of the Retail Installment Sales Contracts (“RISC”) for both the Honda and the Nissan, Defendant was required to provide a Spanish translation off the Debt Cancellation Agreements – and that it failed to do so. Plaintiff argues h...

Excerpt: ...ANTED. Moving Party is to reserve a hearing date for the Demurrer, and file and serve on counsel of record and any new parties with the Proposed Demurrer to the Complaint, by March 2, 2018. The Mandatory Settlement Conference currently scheduled for 4/27/18, and the Jury Trial currently scheduled for 6/4/18, are VACATED. All discovery and motion deadlines are CONTINUED pursuant to Code. A Trial Setting Conference is set for April 10, 2018 at 8:45...

Excerpt: ... amount here is $87,970.10 and that no multiplier is necessary or appropriate. In arriving at these determinations, the Court has considered the facts and information before it on this motion, evaluated and considered the history of the litigation, and factored in the following: This litigation was not particularly complex and did not involve novel, difficult or complex issues. Nothing about this case suggests it required extraordinary skill – ...

Excerpt: ...ith 15 days leave to amend. The motion to strike is therefore moot. Defendant's request for judicial notice of the documents labeled A through 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 eval...

Excerpt: ... Action: Previously, Defendants did not demurrer to the Second and Tenth Causes of Action of the First Amended Complaint. The Tenth Cause of Action has not been re-labeled the Sixth Cause of Action. Code Civ. Proc., § 430.41(b) provides that “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answ...

Excerpt: ...clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Plaintiffs' FAC is not organized in the traditional manner. The FAC alleges 16 causes of action, labeled as “Counts.” Each “Count” is asserted twice, once by each Plaintiff. Defendants demur to both sets of Counts 1 through 16 of the FAC on the ground that the FAC is ambiguous and unintelligible because half of the 32 cou...

Excerpt: ...rst Cause of Action for Breach of Contract The FAC does not adequately allege the existence of a contract. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) The Complaint alleges that Plaintiff's counsel spoke with Defendant (FAC ¶ 11), and that conversation appears to be basis of the agreement—but there is no allegation counsel had authority to enter into the agreement on Plaintiff's behalf. Even if counsel had authority to enter int...

Excerpt: ...a Defendants are ordered to meet and confer with Plaintiff and to submit a detaileddeclaration outlining the parties' meet and confer efforts as to each of the issues raised by the demurrer. (Code Civ. Proc., § 430.41.) The Ibarra Defendants shall file the declaration at least 9 court days before the continued hearing date. No further briefing is permitted. Pursuant to Code of Civil Procedure section 430.41(a), effective 01/01/16, before filing ...

Excerpt: ... an ordinary or heightened duty, plaintiff has a single primary right to be free from the harm suffered when defendant allegedly caused plaintiff to fall from the tow truck. That invasion of a single primary right supports one cause of action for negligence. Plaintiff may amend the complaint to allege alternate legal theories and alternate duties of care within that one cause of action for negligence. Defendant shall give notice. ...

Excerpt: ...; Advance Transformer Co. v. Super.Ct. (1974) 44 Cal.App.3d 127, 144, and Security Pac. Nat. Bank v. Matek (1985) 175 Cal.App.3d 1071, 1077.) But here, the claim is based on an employment contract, and concerns money paid to Ms. Barrie as a bonus, which was to be treated as income and reported on her W-2. (McCarthy Decl., ¶¶ 2-14, Exs. A-E.) The claim at issue is thus effectively one to recover wages paid to a former employee - which is not a c...

Excerpt: ...n 30 days. Code Civ. Proc., § 2031.010(a) provides that “[a]ny party may obtain discovery … by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” Subsection (c) specifically states that “A party may demand that any other party produce and permit the party making the demand, or someone ...

Excerpt: ...imely and submits new evidence. Cross-Defendants may file and serve a supplemental response, no longer than 5 pages, to the new evidence no later than March 22, 2018. Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538. Abdoun and cross-defendant Sabrina Beg are ordered to appear at the hearing to present oral testimony regarding their relationship, if any. Cross-Defendants to give notice. Case Management Conference ...

Excerpt: ...17/17. Despite a robust meet and confer effort, neither party sought judicial intervention. On 06/12/17, plaintiff caused to be served upon Oracle a second subpoena. This new subpoena sought only five categories of documents. The new subpoena carried over categories 3, 4, 5, 6, and 13 from the earlier subpoena. Oracle once again objected to the subpoena on burden grounds (citing Calcor, which will be discuss infra). During the meet and confer eff...

Excerpt: ...ation agreement. This includes the burden of demonstrating that a resident's purported agent had the authority to sign the arbitration agreement on behalf of the resident where, as here, it has been signed by such an agent, specifically, Decedent's son, Plaintiff Jeff Doyle (“Doyle”). (Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6.) On 3/10/16, Doyle signed the Residence and Care Agreement, including Section I.3., an ar...

Excerpt: ...laintiff is granted 15 days leave to amend. The demurrers to the 4 th, 5 th, 6 th, and 7 th, causes of action are OVERRULED. As to the 1 st [Breach of Implied Contract] and 2 nd [Intentional Interference with Existing Contractual Relations] causes of action, no legally cognizable implied contract has been alleged. Exhibit A to the First Amended Complaint, the Offer Decision Form, expressly states it is not a contract and that employment is at wil...

Excerpt: ...state Services, Inc. (2006) 138 Cal.App.4th 1215, 1219- 20; WA Southwest 2, LLC v. First American Title Insurance Company (2015) 240 Cal.App.4th 148, 151.) Facts appearing in the exhibits take precedence over contrary allegations about them, in the pleading. (See Sarale v. Pacific Gas & Elec. Co. (2010) 189 Cal.App.4th 225, 245.) Demurrers to the 1 st through 5 th causes of action in the First Amended Complaint are SUSTAINED with leave to amend. ...

Excerpt: ...c]ontain the captions of all the cases sought to be consolidated” in their notice of motion. (Cal. Rules of Court, rule 3.350(a)(1)(B).) Finally, plaintiffs failed to file this motion in any to-be-consolidated case, along with a proof of service on the defendants in any such case. (Cal. Rules of Court, rule 3.350(a)(2)(B), (C).) Plaintiffs shall give notice. ...

Excerpt: ...s never received? A 998 offer does not have to have a proof of service attached to it to be valid (see Berg v. Darden (2004) 120 Cal.App.4 th 721-732-33), but it must be “made” as an offer, and must be “served” (CCP §998(b), (c)). Here, the person who prepared the proof of service of the offer, did not actually serve the document. According to the proof of service, she merely gave the document to someone else to serve. That does not prov...

Excerpt: ...ercise power over that party. See Hensa v. Denckla (1958) 357 U.S. 235, 251. Personal jurisdiction may be general or specific. A nonresident defendant may be subject to specific jurisdiction if: (1) the defendant has purposefully availed himself or herself of forum benefits, and (2) the controversy is related to or arises out of the defendant's contacts with the forum. See Vons Companies Inc., supra, 14 Cal. 4 th 434 at 446, citing Burger King Co...

Excerpt: ...ope of the receivership orders by the Nevada court and such a receiver cannot be individually liable for attorney's fees and costs. See, Sealite, Inc. v. Finster (1957) 149 Cal.App.2d 617, 618. Relatedly, counsel for the receiver cannot be liable for attorney's fees and costs in association with a motion to expunge lis pendens. See, Doyle v. Superior Court (1991) 226 Cal.App.3d 1355, 1359. Hence any claim for attorney's fees and costs is limited ...

Excerpt: ...dgment, and finds this amount is not exempt from garnishment. The court further finds that claimant's remaining earnings are exempt. Regarding claimant's claimed expenses [Page 7 of Claim of Exemption], her claimed expenses for rent, food, Verizon, Spectrum, Edison, gas company, car payment, AAA [which appears to be car insurance], dental, and allergy medications, appear to be reasonable. Contrary to responding party's contentions, the amounts cl...

Excerpt: ...es are authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subds. (a)(10)(A), (B), & (C); Serrano v. Unruh (1982) 32 Cal.3d 621, 637.) Here, the court has already determined that fees are authorized by contract. There any question that Peloquin is the prevailing party on appeal. The court has broad authority to determine the amount of reasonable fees. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The court may make...

Excerpt: ...ition does not constitute a general appearance unless and untll the court has ruled on defendant's motion to quash. [Hopefully, the defective service will be moot if the petitioner voluntarily agrees to dismiss moving party as discussed at the hearing on the petition.] Moving party to give notice. ...

Excerpt: ...oth the Class Action Settlement Agreement (Settlement Agreement) and the proposed orders omit the provision in the Notice of Pendency of Class Action Settlement and Hearing Date for Court Approval (Notice to Class) that everyone receiving money will be paid in four installments, after defendant makes each payment to the Administrator. The $45,000.00 estimated Administrator fee appears high for a class and settlement of this size. An explanation i...

Excerpt: ... which states, it has filed for bankruptcy protection in the Central District of California, in case no. 8:17-bk-14545-TA. (See Docket #363, Notice of Stay f. 12/28/17, and attachments thereto, in 2012-594022.) Among the creditors or the participants who were listed in the bankruptcy notice there, included the moving attorneys here (Cornman & Swartz) as well as the plaintiff here (Mission Recruiting LLC). (See id.) This Motion is denied without p...

Excerpt: ... on reply.) Plaintiff contends she gave her password to Brittany Rodriguez, and that Rodriguez may have filled out the agreement online on plaintiff's behalf. However, Rodriguez expressly denies doing so, and more importantly, Roth has shown that on the same day the arbitration agreement was signed using plaintiff's name, someone also electronically filled out a direct deposit form with plaintiff's bank information as well as a W-4 tax form for p...

Excerpt: ...equest for monetary sanctions is not broken down by hourly rate or number of hours spent, resulting in plaintiff's failure to establish a reasonable amount. The court has awarded an amount it considers reasonable. Plaintiff's Motion to Compel Further Responses to Form Interrogatories is granted. Defendant Christina LeBlanc must serve full and complete responses, without objections, to Form Interrogatory #15.1 and 17.1 within 20 days. Plaintiff's ...

Excerpt: ... meet and confer letter to Plaintiff on December 8, 2017. After receiving no response, Defendant again reached out on January 8, 2018, and again received no response. On January 8, 2018, the court signed and filed the stipulated protective order. Only after Defendant filed the instant Motion, did Plaintiff served verified supplemental responses on February 9, 2018. Plaintiff asserts that the Motion is moot because Plaintiff served further respons...

Excerpt: ...ctions under Code. Civ. Proc. § 128.5 is also denied. The Notice of Motion failed to identify the parties against whom the sanctions were sought, and the specific type of sanctions requested. Respondent's evidence failed to establish the type of egregious litigation conduct by Petitioner which would support an award of monetary or other sanctions. On its own motion, the court orders Petitioner to show cause why this action should not be dismisse...

Excerpt: ...fendant sufficient notice of this ruling in time to file an answer or responsive pleading. While Plaintiff has failed to submit sufficient evidence of “actual delivery” under CCP 417.20, nevertheless Defendant waived the service requirement and consented to the jurisdiction of this court by making multiple general appearances at CMC conferences and by requesting continuances of the haerings and other relief. These apearnces were made by Defen...

Excerpt: ...ost recent known address for the Defendant Vo. The Stipulation indicates that the Defendant received the summons and complaint, however, the Court requests that, any proof of service of the summons and the complaint be filed in the court records, by the Plaintiff's counsel. In addition, counsel shall report if any additional payments were received or are to be credited towards the total amount owed. Otherwise, pursuant to CCP §664.6, Plaintiff's...

Excerpt: ... granted as to RFA nos. 13-14, but Bellavia's request for $50,000 in fees is denied. Instead, the Court awards $1,500 as reasonable expenses. If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under CCP § 2033.010, et seq., and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move ...

Excerpt: ..., 694; Aguilar v. Lerner (2004) 32 Cal.4th 974, 989.) Petitioner has also demonstrated compliance with the MFAA and that the respondents have waived their right to arbitrate thereunder. (Mudge Decl. at ¶ 18, 19, Exh. 1; Bus. & Prof. Code, § 6201, subd. (a).) Also, the fact that respondents may assert claims against a third party does not vitiate their obligation to resolve their existing professional disputes with petitioner through binding arb...

Excerpt: ...ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a, p. 9(l)-33.) Code of Civil Procedure section 426.30 clearly states that the compulsory counterclaims are waived only if: “a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of servin...

Excerpt: .... The Court finds that there are common questions of fact or law. All actions assert causes of action based upon failure to pay all wages owed and failure to provide meal and rest periods, as well as derivative claims. The proposed class definitions in the Olvera and Perez actions overlap. The Olvera class is limited to cooks, and the Perez class of all nonexempt employees necessarily includes cooks. The class periods for the Olvera and Perez cla...

Excerpt: ...court GRANTS the Petition for the reasons set forth below. This litigation is stayed pending resolution of the arbitration. A. Basic Procedure In Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 412-414, the California Supreme Court explained the procedure a trial court must follow when a party files a petition to compel arbitration. The only question is whether the trial court should specifically enforce the arbitrati...

Excerpt: ...6. “In short, the testator's intent to benefit the plaintiff is a prerequisite to the imposition of a duty on the attorney to the plaintiff. This makes sense, as the rationale for allowing testamentary instrument beneficiaries to recover in the event of a breach by the attorney is that ‘the main purpose of the testator in making his agreement with the attorney is to benefit' those beneficiaries ‘and this intent can be effectuated ... only b...

Excerpt: ...f to comply with Plaintiff's responses to Pacific Transformer's Requests for Production Nos. 8, 18 and 19. Defendants also seek sanctions. Plaintiff does not oppose these motions, but opposes Defendants' request for sanctions. Based on Plaintiff's non-opposition, Defendants' motions are granted. Plaintiff shall produce any responsive documents not yet produced by March 15, 2018. Defendants' request for sanctions is granted. See Cal. Civ. Proc. Co...

Excerpt: ...hin 30 days. Code Civ. Proc. §§2023.010(d) and (g), 2023.030, 2030.290(c). Plaintiff Ashad Hamideh is ordered to serve verified supplemental responses without objections to the form interrogatories within 15 days. The Motions by Defendant Imran Khan (1) for Terminating Sanctions and/or Other Monetary Sanctions and Attorney Fees against Plaintiff Mohammad Hamideh and (2) for Terminating Sanctions and/or Other Monetary Sanctions and Attorney Fees...

Excerpt: ...plaint ceases to have any effect either as a pleading or as a basis for judgment.” (Ibid.) 2. Cross-defendant Yorba Linda Water District's motion for summary judgment/adjudication directed at cross-complainant Wailea Property Partners, LLC's cross-complaint is DENIED. The court has treated this motion as one for summary judgment only, as cross-defendant Yorba Linda Water District (District or YLWD) has failed to comply with California Rules of ...

Excerpt: ...o. 1: There Is No Triable Issue of Fact as to Plaintiff's First Cause of Action for Breach of Contract, as a Matter of Law. Plaintiff fails to meet its initial burden to prove all elements of the claim for breach of contract—specifically, damages. (See Paramount Petroleum Corp. v. Super. Ct. (2014) 227 Cal. App. 4th 226, 241.) Plaintiff contends the unpaid balance as of 01/01/2017 was $30,639.36, but provides no competent evidence as to how tha...

Excerpt: ...hat is in issue is the duty to defend, based on those alleged claims, rather than the ultimate duty to indemnify. Majic/ADA argue a defense is not owed unless it is first shown Majic/ADA caused or contributed to Plaintiff's alleged injuries. In support of their contentions, Majic/ADA point to the language in the policy that they will indemnify, protect, defend (etc.) “provided that any such claim, damage, loss or expense is caused in whole or i...

Excerpt: ...tions for summary judgment and summary adjudication are denied. Nationstar first argues that the court should grant summary judgment as to Plaintiff's entire case because all of Plaintiff's claims fail for lack of recoverable damages. Nationstar met its initial burden by setting forth evidence that Plaintiff agreed to a limitation on its available damages in the Short Sale Agreement. The Short Sale Agreement states: 14.B. SELLER DEFAULT. BUYER AN...

Excerpt: ...ral testimony on a contested issue of fact in a motion hearing. Mutual Mortgage Co. v. Avis (1986) 176 CA3d 799, 805. The court also has discretion to refuse to allow oral testimony. Eddy v. Temkin (1985) 167 Cal.App.3d 1115, 1121. A party seeking to introduce live testimony at a law and motion hearing is required, in advance of the hearing, to obtain a court order upon a showing of good cause. The request for the order for live testimony must be...

Excerpt: ...and thus it would have to be denied pursuant to Code of Civil Procedure section 2025.410. (The court further notes that in ruling on the motion for a stay it is notruling on whether the attorney-client privilege applies under these facts. That is a bridge too far under these circumstances. (Finally, and most puzzling, the question the plaintiff corporation seems to pose by this legal malpractice litigation is this: Who owns it? This discovery dis...

Excerpt: ...shall not be thus issued or delivered to any person in this state unless it contains all the following provisions: (1) A provision that the insolvency or bankruptcy of the insured will not release the insurer from the payment of damages for injury sustained or loss occasioned during the life of such policy. (2) A provision that whenever judgment is secured against the insured or the executor or administrator of a deceased insured in an action bas...

Excerpt: ...Agreement is illusory. However, the Court has located no authority that addresses facts the same as or similar to the facts presented here. Given the public policy that arbitration agreements should be enforced wherever possible, the Court concludes that a valid arbitration agreement has been shown here. There is no showing that the 2016 Agreement is void due to fraud in the inception or is procedurally unconscionable. Plaintiff has forthrightly ...

Excerpt: ... case is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) Defendant/Cross-Defendant Parra has satisfied this minimal burden. Together, his moving papers and supporting declaration adequately set forth the nature of the case and all pertinent facts, the settling parties' relative litigation positions, and the barebones terms of the settlement. (See Motion P&As at pp. 2-5; Leenerts Decl., ¶¶ 3-12.) Moving pa...

Excerpt: ...y fees in its complaint. In support of his argument, the defendant cites a case out of the Fourth District Court of Appeal, Division Three: Manier v. Anaheim Business Center Co. (1984) 161 Cal.App.3d 503. Whatever may have been the reach of Manier when it was first decided, more recent California Supreme Court precedent has effectively overruled it. (See, e.g., Sessions Payroll Management, Inc. v. Noble Constr. Co., Inc. (2000) 84 Cal.App.4th 671...

Excerpt: ...inari (2005) 132 Cal.App.4th 1223, 1230.) If the moving party meets this burden, the burden shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud or unconscionability). (Villacreses v. Molinari, supra, 132 Cal.App.4th at 1230.) Here, it is undisputed that the parties entered into a written agreement to arbitrate, the claims at issue are covered by that agreement, and Plaintiff has refused to arbitr...

Excerpt: ...claratory relief reveal that an actual controversy exists between the parties.'” D. Cummins Corp. v. United States Fid. & Guar. Co. (2016) 246 Cal. App. 4th 1484, 1489. “[A] home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legiti...

Excerpt: ... is GRANTED. (Code Civ. Proc., section 2033.290.) However, in the event that Plaintiff Kenneth Mayer serves a proposed response to the requests for admission that is in substantial compliance with Code of Civil Procedure section 2033.220 before the time of the hearing, the Court will deny the motion. (Code Civ. Proc., § 2033.280, subd. (c) [the court shall deem the matters admitted "unless it finds that the party to whom the requests for admissi...

Excerpt: ...dants' demurrer to plaintiff Mankaruse's unverified, first amended complaint: Exhibit 1, Complaint in Mankaruse v. Raytheon Company, et al., O.C.S.C. Case No. 30- 2014-00732670 filed on 7-7-14, Exhibit 2, the Order of 11-9-16 dismissing plaintiff Mankaruse's cause of action for fraud and deceit in plaintiff's 2014 civil action for failure to timely amend, Exhibit 3, the Notice of Entry of Order Regarding Defendants' Demurrer to First Amended Comp...

Excerpt: ...er conducting an evidentiary hearing, and pursuant to University rules and regulations, made recommendations to the Chancellor of the University about a grievance filed by the plaintiff. Those proceedings are subject to the deliberative process privilege. (See Labor and Workforce Development Agency v. Superior Court (2018) 19 Cal.App.5th 12.) The court finds that defendants have met their burden to show that the nondisclosure of the deliberations...

Excerpt: ...usiness practices was now one for declaratory relief based on the lots yet to have flooring ordered and installed. At the very least there are 352 “remaining lots” which plaintiff claims entitlement to commissions (even though defendant has not necessarily even determined any profit margin). ...

Excerpt: ...2014 to the present. Defendant presented evidence that Plaintiff is engaged in other business activities while out on disability that impacts Plaintiff's claim of lost earnings. Hence a compelling need is shown as to such records. Also, less intrusive means to ascertain what earnings Plaintiff has had since 2014 outside her admitted disability benefits is not shown. Plaintiff's motion to quash is GRANTED as to the balance of the records sought by...

Excerpt: ...Party Plaintiff Performance Diversified, Inc. dba Performance Wash Services. Motion 4: Demurrer to First Amended Complaint. Moving Party Zions Bancorporation and ZB, N.A. Responding Party Plaintiff Performance Diversified, Inc. dba Performance Wash Services Motion 5: Strike Punitive Damages.Moving Party ABE Corporation dba Fairview Shell. Responding Party Plaintiff Performance Diversified, Inc. dba Performance Wash Services Ruling 1: Defendant AB...

Excerpt: ... Denial of leave to amend is appropriate where inexcusable delay and probable prejudice to the opposing party is shown. (Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 304, 311.) Here, both of these elements are lacking. The new cause of action is not being sought to cause unwarranted delay. The new cause of action simply adds another basis to impose liability on this Defendant – probably one that the lawyer discovered after the initial...

Excerpt: ... American Title Guar. Corp. (1963) 59 Cal.2d 618, 620. (“In the absence of some special agreement, statutory provision, or exceptional circumstances, attorney's fees are to be paid by the party employing the attorney.”) Plaintiff argues that based on Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4 th 979, its fees are recoverable as a result of its fraud claims. The issue in Robinson Helicopter was whether the economic loss rule a...

Excerpt: ...sic evidence shows the parties reached anything but the usual understanding regarding costs. At any rate, defendant did not prevail on the only contract claim. Plaintiff did, albeit with a nominal recovery. Defendant prevailed on a non- contract claim that is not subject to the costs provision (which is unilateral, anyway). (See Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 828 [Civ. Code § 1717 does “not make a unilateral provisio...

Excerpt: ...les of Professional Conduct, Rule 3- 700(c); Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014. If withdrawal is by client consent, the attorney need only submit Judicial Council form MC-050: Substitution of Counsel – Civil. See CCP §284(1). If the attorney does not have the client's consent, he or she must proceed by way of noticed motion consistent with CCP §§ 284 and 1005, CRPC 3-700 and CRC, Rule 3.1362. Here, counsel informs th...

Excerpt: ...o an employee's right to bring a civil action for unpaid wages and overtime show that an employee may sue the Individual Defendants under Labor Code §558.1. The Labor Commissioner's jurisdiction over wage claims is not exclusive; actions may be brought by either the Labor Commissioner or the employee. See Labor Code §1194. Section 558.1 was added to the Labor Code as part of SB 558. This bill made amendments to a number of provisions. These ame...

Excerpt: ... separate paragraph and state whether it applies to the entire complaint or to specified causes of action. Based on the memorandum of points and authorities, the court will proceed based on the assumption that Defendant intended to specially demur for uncertainty to the 2 nd- 5th causes of action and also specially demur to the 5th cause of action on the grounds it is duplicative. Defendant's special demurrers for uncertainty to the Second – Fi...

Excerpt: ...� 3426– 3426.10; Cacique, Inc. v. Robert Reiser & Co., Inc. (9th Cir. 1999) 169 F.3d 619, 624 (applying Calif. law); Accuimage Diagnostics Corp. v. Terarecon, Inc.(ND CA 2003) 260 F. Supp. 2d 941, 953–54 (applying Calif. law). The CUTSA, at §3426.7(b), preempts common law claims that are “based on the same nucleus of facts as the misappropriation of trade secrets claim for relief.” K.C. Multimedia, Inc. v. Bank of America Technology & Op...

Excerpt: ...to the first, second, third, and fourth causes of action based on the defense of in pari delicto is sustained. Although an exception to the in pari delicto defense exists when the parties to a fraudulent transaction occupy a fiduciary relationship and the fiduciary would personally profit from the wrongdoing (Sontag v. Denio (1937) 23 Cal.App.2d 319, 323–24; Clark v. Millsap, 197 Cal. 765, 783), Plaintiff does not allege sufficient facts to est...

Excerpt: ...rties. If the party requesting that judicial notice be taken under Section 453 fails to provide the court with ‘“sufficient information,' the judge may decline to take judicial notice.” Commission Notes, Evid. Code, § 453. The court's electronic copy of the request for judicial does not indicate that the documents have been certified by the Recorder, or establish foundation by other means. ...

Excerpt: ...oticed only two depositions, failed to seek relief from the Court when a dispute arose over the location, and then proposed new dates that were after the Opposition for this Motion was due. (Mirabel Decl. ¶ 10.) She also fails to explain when the document requests that she now claims to need responses for were served. (Mirabel Decl. ¶ 17.) And although she claims that Jokar refused to produce Ms. Martinez in September, without cause (Id. at ¶ ...

Excerpt: ...e claim, causes of action, or issues on which it is moving. CRC 3.1350. The court has no power to adjudicate others. Maryland Cas. Co. v. Reeder(1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498. According to their noticed issue no. 1, Defendants seek summary adjudication of Plaintiff's “claim for personal injury damages.” Defendant do not identify any specific cause of action by number...