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

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: ......

Excerpt: ...eposition until 12/16/17, at which point it was too late to cancel the court reporter and videographer, so Defendant took a notice of non- appearance on 12/18/17. At the 11/15/17 deposition, Hale refused to respond to questions asking him to disclose the current home address of his wife Jessica Guerra and Hale's counsel refuses to accept service of a deposition subpoena. Public record searches have not revealed her current home address. (Meinhard...

Excerpt: ...lemental responses have mooted the original responses. Plaintiff is incorrect that when defendant responds over its objections it is allowed to give only partial responses – those responses will be treated as full and complete, but with defendant reserving its right to object to plaintiff using the responses as evidence. Plaintiff's motion to compel further responses to form interrogatories is granted as to #1.1, 3.1-3.6, 15.1, and 50.1- 50.6, ...

Excerpt: ... heard later as to the judicial reference, to object that their contract or subcontract includes no such reference provision, or to voice other opposition as they deem fit. The inclusion of those other parties in the reference proceeding must await a stipulation, ex parte request or noticed motion. Plaintiff's Request for Judicial Notice is granted. It is undisputed that Article 16 of the prime contract between plaintiff and defendant Western Nat...

Excerpt: ...dent contractor” and readily assumes Defendant Star Pro treated or classified its employees as “independent contractors,” when the question of whether or not the employees were misclassified as independent contractors is essentially the subject of this litigation. They further contend that the “community of interest” element is absent; i.e. that there is no predominant question of law or fact because of the different categories of subcl...

Excerpt: ...e under Evidence Code sections 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought. (Leek v. Cooper(2011) 194 Cal.App.4th 399, 413.) On demurrer, a complaint must be liberally construed. (Code Civ. Proc., § 452...

Excerpt: ...ovided. It does not articulate the alleged contract's terms, the parties thereto, or the date the agreement was allegedly reached. Nor does it adequately explain how those terms were breached or how Gamechanger was thus damaged. For the Second and Third Causes of Action, the XC makes general assertions about what Mr. Moushy “falsely represented” (¶ 17) but fails to allege what was specifically said, when it was said, to whom, how the alleged...

Excerpt: ...ate, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, . . . .” In determining whether bifurcation is appropriate, courts often look to other factors aside from whether the case presents separate issues. For example, courts will consider the complexity of the issues, the risk of jury confusion, judicial economy, and whether the claims present separate and independent issu...

Excerpt: ...: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a, p. 9(l)- 33.) Cross-Defendant's motion is based on a contractual statute of limitations that, by its terms, does not appear to apply in this situation. Further, under existing law and on the pleadings alone, there is a question whether the provision would be enforceable. The introductory clause for the contractual statute of limitation says that “[e]xcept for actions by WZWL&H t...

Excerpt: ...xs. B-H, J-L, and N-P (Ev. 452(d)(1). Respondent's request for judicial notice is denied as to Exs. I and M. Petitioner is granted 30 days leave to amend. (CCP 438(h)(2).) Moving party to give notice. 2. Petitioner's motion to compel production of documents. Motion denied, without prejudice. Petitioner fails to provide evidence showing that the records are sought “for purposes reasonably related to the interest of that person as a member or a t...

Excerpt: ...t and discovery motions, favoring the defendants. Since the Omars are unrelated to Markad, however, CSS should be able to adequately prosecute that action. Moreover, that action has been stayed (and since that case is not consolidated with the others, Wardak should have filed a separate motion in that action). Wardak is a 25% or 50% shareholder of CSS, has a meaningful interest in CSS's success in the actions, and thus has standing to maintain de...

Excerpt: ...'s instructions). Counsel also should provide a red-lined version of any revised papers (including the notice of settlement to the class). The court sees no reason not to immediately file the First Amended Complaint, which asserts PAGA claims. The court approves the parties' stipulation for the filing of the First Amended Complaint and orders plaintiffs to file their First Amended Complaint as a separate document within one week, and to mail-serv...

Excerpt: ...complaint].) The court also notes that even before the MSA was filed, Plaintiff dismissed the first and seventh causes of action in the Complaint. The issues regarding legality of e-signatures in this MSA were raised in the first cause of action in the Complaint, which was dismissed prior to the filing of the MSA. A defendant moving for summary judgment need not refute liability on some theoretical possibility not included in the pleadings. (Coun...

Excerpt: ...ts, and that the bone grafts might not hold the implants. These two facts are sufficient to state a cause of action for lack of informed consent. Defendants also assert that this cause of action is duplicative of the first cause of action for dental malpractice, and as such, the demurrer should be sustained. The argument is unpersuasive: The first and second causes of action are distinct in that they allege different conduct. Moreover, they are s...

Excerpt: ...v. Williams (1994) 23 Cal.App.4th 238, 246 Plaintiff has not shown the harsh, time-consuming, expensive and potentially unjust remedy of a receivership is “absolutely essential” in this case. See, City & County of San Francisco v. Daley (1993) 16 CA4th 734, 745 Plaintiff's evidence supporting “insolvency” under CCP §654(b)(6) is insufficient to show that a receivership is warranted. At most, the evidence is equivocal. If believed, it sho...

Excerpt: ...ssor client just because the will becomes irrevocable at the testator's death.” Baker Manock & Jensen v. Superior Court (2009) 175 Cal. App. 4th 1414, 1422. Assignment Ineffective: In 2000, Robert and Suzanne Skowron engaged AmeriEstate Legal Plan, Inc. They retained Stephen Clemmer as their attorney to draft a living trust. Robert is deceased. Suzanne assigned her rights to Plaintiffs. As a matter of California public policy, legal malpractice...

Excerpt: ...ining defendants to these causes of action is sustained with leave to amend. The first cause of action for breach of contract fails to state facts sufficient to constitute a cause of action. The contract attached to the complaint indicates on its face that only defendant Evolution Hospitality, LLC is a party. Facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint. (Holland v. Mors...

Excerpt: ...dants” in her fourth, fifth and sixth causes of action to mean the Sidley Austin Defendants. (See, SAC, ¶¶ 99, 100, 107, 108, 114 and 115.) The Sidley Austin Defendants are entitled to be apprised what allegations are against them versus the other named co-defendants in this case. Plaintiff Coleman should ensure that her allegations satisfy the standards discussed in the Carter cases against these moving defendants. See, Casey v. U.S. Bank Na...

Excerpt: ... to section 425.16(e)(1). Defendant also argues that Plaintiff cannot prevail in his defamation suit against Defendant because the statements made in the Victim Impact Statement are privileged. For the following reasons, Defendant's motion is granted. Code of Civil Procedure section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under...

Excerpt: ...uses of action for void/fraudulent transfer alleged against defendants Lock & Lock USA Distributor, Inc. (LL USA), Jinyoung Park (Park), and JYP Investments, LLC (JYP) (collectively, defendants). (See Code Civ. Proc., §§ 484.090, 481.190, 482.040; see also Weil, et al., Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group June 2017 Update) Ch. 9(II)-D at ¶¶ 9:948, 9:948.1.) With respect to the first cause of action for breach of co...

Excerpt: ...on for Leave to File Third Amended Complaint Against Defendants Orange County Sheriffs' Department, et al. Plaintiff Jerome Stark's motion for leave to file a third amended complaint is GRANTED. See, C.C.P. § 473(a)(1) and Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Also, leave to amend is favored even if trial must be continued. See, Honig v. Financial Corp. of America (1992) 6 Cal.App.4 th 960, 965. Challenges to the amended compl...

Excerpt: ...ring is continued for the limited purpose of serving any omitted parties , their opposition will be due to the Court, at least 9 court days before the nex t hearing. This is not an authorization for the parties who were served with th e moving papers, to submit their oppositions at this time. Also, the MP's Notice of motion [see ROA 296] does not comply with CR C 3.1382 by identifying each party, each pleading or portion of pleading affecte d by ...

Excerpt: ... demonstrate inadvertence , mistake, surprise or excusable neglect. Here, defendant explains that he is self-represented, and unfamiliar with ho w to respond to a lawsuit. He explains that he did come to court on two prio r hearing dates, and appears to be participating as best he can. He was unawar e of the risk of default, despite already making what amounts to a genera appearance in the action. See City of Riverside v. Horspool (2014) 22 3 Cal...

Excerpt: ...0, 517. Defendants' evidence establishes that Plaintiff was acting as a contractor, that Plaintiff's Class B general contractor's license was not in effect at all times during its performance of being engaged in the business or acting in the capacity of a contractor, and that this action and each cause of action asserted in Plaintiff's First Amended Complaint is “…an action in law or equity for compensation for the performance of any act or c...

Excerpt: ...Cal.4 th 599, 622; Maynard v. BTI Group, Inc.(2013) 216 Cal.App.4th 984, 993. In addition, the parties' briefing and evidence, both with respect to this motion and OSC re: preliminary injunction, strongly suggests that this action was and remains part of a greater dispute between the parties, which remains at issue and is currently being litigated in Delaware. That plaintiff dismissed this action without prejudice after the court denied its reque...

Excerpt: ...ion application is under consideration or a denial is being appealed, the borrower is making timely modification payments, or a foreclosure prevention alternative is being evaluated or exercised.” Here, the SAC alleges that Defendant Chase collected late fees while Plaintiff was in compliance with her permanent loan modification. (SAC ¶ 52.) Defendant's contention that the provision applies only while loan modification applications are under c...

Excerpt: ... because Outsourcing is without counsel, and a corporate entity is not able t o represent itself in general litigation. (See Gamet v. Blanchard (2001) 9 1 Cal.App.4th 1276, 1284 n.5; CLD C o n s t . , I n c . v . C i t y o f S a n R a m on (2004) 12 0 Cal.App.4th 1141, 1145-1150.) The cross-defendants, Sanders Engineering Co. and Craig Jackson, hav e objected to this, via their demurrer to the operative pleading. (See Docke t #153). Outsourcing w...

Excerpt: ...h. The Court sets a post-Arbitration Review hearing at 8:30 a.m. on 8/7/18 in this Department. A party moving to compel arbitration under Code Civil Procedure section 1281.2 must prove by a preponderance of the evidence that: (1) the parties entered into a written agreement to arbitrate; (2) one or more of the claims at issue are covered by that agreement; and (3) the responding party refused a prior demand for arbitration under the agreement of ...

Excerpt: ...en of demonstrating that the records he seeks to redact and/or have sealed is necessary to overcome the presumption that court records are to be publicly available. See, H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4 th 879, 898. Prevailing party to give notice. Future Hearings: MSC: 7/13/18 8:30 am Trial: 8/13/18 8:30 am ...

Excerpt: ...ssuance or nonissuance of the injunction. “The trial court's determinatio n must be guided by a mix of the potential-merit and interim-harm factors; th e greater the plaintiff's showing on one, the less must be shown on the other t o support an injunction. Of course, the scope of available preliminary relief i s necessarily limited by the scope of the relief likely to be obtained at trial on th e merits. A trial court may not grant a preliminar...

Excerpt: ...acturer of the table saw that injured plaintiff Sotelo. Co-defendant Garfield International Company, Inc. identified “Powermatic” as the manufacturer of the power saw that injured plaintiff Sotelo. Defendant JPW Industries, Inc. has now appeared claiming it was improper named as “Powermatic Tools,” but then defendant JPW presents evidence that it was not the manufacturer of the table saw that is the basis of plaintiff Sotelo's product lia...

Excerpt: ...nses, without objections, to Defendant's Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Identification and Production of Documents (Set One) within 20 days of the notice of ruling. (Code Civ. Proc., § 2031.300.) Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. section 2023.010(d).) So, too, is disobeying a court order to provide discovery. (Id., ...

Excerpt: ...attorneys' lien has priority over the liens recorded by Liberty Mutual Insurance Company and Commercial Bank of California on November 10, 2016, and January 17, 2017, as a result of the federal bankruptcy proceedings. (Waltrip v. Kimberlin (2008) 164 Cal.App.4th 517, 525 [“An attorney's contractual lien is created and takes effect when the fee agreement is executed,” and, “[w]here there are competing liens, the general rule is that, all thi...

Excerpt: ...dmission, Set One, as Nissa n had failed to respond thereto. Motion 1 is GRANTED IN PART. Plaintiff asserts that Form Interrogatories (Set One), Special Interrogatorie s (Set One), and Requests for Production (Set One), were propounded to Plaintif f on 7/31/17. (Babbitt Decl., ¶ 3.) Nissan concedes that it failed to timel y respond thereto. (Leonard Decl. ¶ 2.) As responses were not timely provided , all objections were waived. (SeeC.C.P. §§2...

Excerpt: ...s (Set Two): No. 17.1: No. 17.1(c): Further responses are required providing more specific information, e.g., the identity of those family members and or health care providers, if any, whom Plaintiff knows have knowledge. CCP 2030.220. Special Interrogatories: Nos. 2, 9, 10- 15 and 19- 27: No. 2: The Objection was appropriate. This Special Interrogatory referred to No. 1, which requested Plaintiff to list her health care provider for the past ten...

Excerpt: ... through 13, 15 through 19, 21, 23, 26 through 28, 33 through 35 and 46 from Defendant Sares Regis Management Company (Sares) and Defendant Greystar, L.P. (Greystar). Plaintiff also moves for sanctions against Sares and Greystar. The court has reviewed all of the materials submitted in connection with Plaintiff's eight discovery motions, including the parties' briefs, separate statements, correspondence, and the discovery requests and responses a...

Excerpt: ...at agreement; and (3) the responding party refused a prior demand for arbitration under the agreement of the claims at issue. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (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.) ...

Excerpt: ...e. (B&P 6201(a); Jafari Decl. in support of Opposition, Paras. 4 and 5 and Ex. A thereto.) However, the arbitration provision here also requires binding arbitration before Judicial Arbitration and Mediation Service, which is valid and enforceable. (Ervin, Cohen & Jessup, LLP v. Kassel (2007) 147 Cal. App. 4th 821, 826- 827.) Plaintiff has not shown any grounds to deny enforcement of binding arbitration. Plaintiff Offices of Christopher K. Jafari,...

Excerpt: ...pinions of Dr. Schifrin, Plaintiffs' expert, are solely grounded in Plaintiffs' medical records. (See, Declaration of Barry S. Schifrin, ¶ 2.) These medical records are not submitted in support of the motion and, more importantly, are not properly authenticated to be used as proof of independent facts to support an expert opinion solely based thereon. See, Garibay v. Superior Court (2008) 161 Cal.App.4 th 735, 742 to 743. See, also, College Hosp...

Excerpt: ...s ordered stricken. Defendant Costco to submit a proposed judgment of dismissal within 10 days. The Motions by Attorney Robert D. Walters and Sassan Mackay to Withdraw as Counsel of Record For Client Laurencia Gonzales are GRANTED, effective upon the filing of the proof of service of the signed orders upon the client. Defendant moving party to give notice. ...

Excerpt: ...her motion and her supporting papers by mail was January 12, 2018. Plaintiff's proof of service states that she served her motion and supporting papers by mail on January 15, 2018; Defendant argues that Plaintiff in fact did not serve her motion and supporting papers until January 16, 2018. Either day was insufficient. As a result, the hearing on Plaintiff's motion is continued to April 5, 2018 at 1:30 p.m. in Department C13. Defendant shall file...

Excerpt: ...djudication as to all four issues and also DENIES the motion for summary judgment. A. 1st COA: Legal Malpractice DENIED as to Issues 1 and 2. Issue 1. Reid's cause of action for Legal Malpractice against Defendants is without merit as a matter of law because Reid is unable to establish any breach by Defendants of their duty of care. Issue 2. Reid's cause of action for Legal Malpractice against Defendants is without merit as a matter of law becaus...

Excerpt: ...ion The first cause of action is for conversion. Plaintiff's claim is based on an allegation that the defendants “breached” the “50% ownership written contract.” “A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, ‘courts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a so...

Excerpt: ...ts' motion for summary judgment is DENIED. The motion for summary adjudication is DENIED as to Issue Nos. 1-5. Hiring Defendants' objections are OVERRULED. Issue No. 1: Plaintiff Jason Leasure's cause of action for negligence is barred by Lab. Code, § 3602 Lab. Code, § 3602(a) provides (emphasis added): “Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided...

Excerpt: ...dmission, Set One, as Nissa n had failed to respond thereto. Motion 1 is GRANTED IN PART. Plaintiff asserts that Form Interrogatories (Set One), Special Interrogatorie s (Set One), and Requests for Production (Set One), were propounded to Plaintif f on 7/31/17. (Babbitt Decl., ¶ 3.) Nissan concedes that it failed to timel y respond thereto. (Leonard Decl. ¶ 2.) As responses were not timely provided , all objections were waived. (SeeC.C.P. §§2...

Excerpt: ...ourt days hereof Plaintiff is to file and serve a proposed Preliminary Injunction, for the Court's signature. The parties are to be prepared at the hearing on this matter to discuss an appropriate bond amount. ...

Excerpt: ...ction for cancellation of instruments. Also, the potential loss of unique property by way of a foreclosure sale constitutes irreparable harm. See, Evidence Code § 3387. Finally, the balance of harms favors plaintiff Moez, LLC. Prevailing party to give notice. Plaintiff SGFC, LLC's Request for Judicial Notice: Defendant SGFC, LLC requested that the court take judicial notice of the following documents in support of its opposition: Exhibit 1, Bank...

Excerpt: ...A related cause of action “means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Code Civ. Proc. §§ 426.10(c).) Here, Epson's proposed cross- complaint is compulsory. (See Time for Living Inc. v. Guy Hatfield Homes (1991) 230 Cal.App.3d 30, 38-39 [indemnity claims arise out of the same occurrences or series...

Excerpt: ...55 in connection with the pending non-judicial foreclosure. The version of Civ. Code § 2923.12 in effect in 2013/2014 provides: “(a)(1) If a trustee's deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section 2923.55…” Civ. Code § 2923.4 in effect at the time states in part: “(a) The purpose of the act that added this section is to ensure that, as part of the non...

Excerpt: ...[sex discrimination]: There is no basis for liability under California law based on Pltf's allegations; Sustain; There does not appear to be a way to repair this Complaint; Sustain without leave to amend. ...

Excerpt: ...s within 15 days; Sanctions: Pltf shall pay to Defts $975 within 30 days as and for discovery sanctions. ...

Excerpt: ...; Grant; #12.2: Initial response failed to assert the atty/client privilege so it is waived; Further, nothing in declaration of Pltf's counsel to establish the response to this Interrogatory requires atty work product; Grant; #12.3: Mvng Pty did not comply with CRC 3.1345 – this Interrogatory is not in Mvng Pty's separate statement; Deny; Compel Production #182: Request is limited to EEOC documents related to this employer and the claims in thi...

Excerpt: ...the Court rules as follows: SUSTAIN objection to ¶¶ 17, 20, 20.a, 20.b, 20.c, 20.d, 21, 25, 26, 27, 28, and 37; OVERRULE as to the remaining objections. (1) The balancing of harm lies in Defendant's favor. Code of Civil Procedure section 526(a) provides in pertinent part: “(a) An injunction may be granted in the following cases: … (2) When it appears by the complaint or affidavits that the commission or continuance of some act during the li...

Excerpt: ...tion 405.32, the burden of proof is on the party opposing the motion to show, by a preponderance of the evidence, that Complainant's claims have probable validity. (Code Civ. Proc., §405.30; See Also Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4 th 314, 319.) To meet his burden under these provisions, Plaintiff relies on two pieces of evidence: First, Plaintiff cites Exhibit B to the verified First Amended Complaint, w...

Excerpt: ... to Compel Responses to RFAs (11) Motion to Compel Responses to RFAs (12) Motion to Compel Responses to RFAs Tentative Ruling: (1-12) Plaintiff Balboa Capital Corporation's twelve discovery motions are DEEMED MOOT. Defendants represent, and Plaintiff concedes, that further responses were served after the motions were filed. Reasonable monetary sanctions of $3,880.00 are imposed against Defendants, payable within 30 days. The court “shall” imp...

Excerpt: ...r: The Complaint alleges that harm claimed by Plaintiff concerning the purchase of stocks occurred between February 2013 and November 2014. (Complaint, ¶¶ 17, 25.) Plaintiff commenced this action on May 28, 2015. Defendant Flower was named as Doe 5 on August 15, 2017. Thus, unless the relation back effect is given to the amendment naming Defendant Flower as Doe 5, it appears Plaintiff's claims, other than for breach of fiduciary duty and fraud,...

Excerpt: ... examination and testing; and (3) plaintiff and her counsel to pay to the moving parties $3,040 for the costs incurred by Plaintiff's refusal to submit to the 12-15-17 examination with Dr. Boone, to which Plaintiff had previously agreed. ...

Excerpt: ...c)(1). The court notes that both parties are seeking punitive damages for this dispute. ...

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: ...f this action, having been filed on 10/2/17, without sealing. [See Docket #146, 147.] It is not apparent why they require being filed under seal now. In short, the entire RJN should not have been filed under seal. Truinject perhaps implicitly agrees with this, as the Motion indicates that the sealing is requested, specifically for Exhibit 1 of the RJN. [See 12/11/7 Mot. to Seal at 1:5.] That exhibit is a Note Purchase Agreement of 7/2014, ostensi...

Excerpt: ...e can, at any time, change the rules for unvesting or altering pension rights?  Why am I looking at Superior Court rulings? Are those judges smarter?  Why do I need to take judicial notice of legislative history? Is the statute vague? Also, remember, I too have Westlaw.  Isn't there a rule about the length of briefs? I note the petitioner's brief is 27 pages long. ...

Excerpt: ... overruled in their entirety. Defendants contend the statements at issue (that Plaintiff's employees are “thieves, crooks and liars” and Plaintiff is “going bankrupt” or “going out of business”) were “made in connection with litigation” and “are simply recharacterizations of (or otherwise plainly refer to) SG's allegations against the Verio Defendants in the SG Action.” (Mot. at 16-17.) Plaintiff denies the statements about �...

Excerpt: ... who frequented the gym. Plaintiff's allegations do not state facts sufficient to state a punitive damages claim as a matter of law because there are no facts to show that 24 Hour Fitness was completely aware of the possible consequences of allowing Bisping in the gym (i.e. that Defendant would attack someone outside of a sanctioned professional match). Further, a “should have known” standard is insufficient for punitive damages. The mere car...

Excerpt: ...Sullivan Group of Court Reporters f.k.a. Sullivan and Hargreaves Court Reporters. Motion 3: Compel Production of Documents Pursuant to Business Records Subpoena. Moving Party Plaintiff/Cross- Defendant The Sullivan Group of Court Reporters f.k.a. Sullivan and Hargreaves Court Reporters. Responding Party Third Party Huntington Court Reporters & Transcription, Inc. (“Huntington”). Motion 4: Leave to File Amendment to Complaint. Moving Party Pla...

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: .../16/18 at 3 pm. The court will nominate 5 persons from those lists and give notice to the parties. The parties shall then have 5 days to file and serve a notice of their joint selection of arbitrator. If the parties fail to timely file such a notice, the court will appoint one of the 5 nominees as arbitrator. (See Code Civ. Proc., §§ 1281.3, 1281.6.) If the parties fail to timely propose any arbitrators in the first place, the court will appoin...

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: ...sted a dismissal. If the plaintiff is seeking a judgment as indicated in the notice, it cannot be through §998. Further, anything less than a categorical acceptance will not meet the requirements of §998. The court is presented with a factual dispute regarding acceptance of the offer, and is not authorized to adjudicate such a dispute. See Bias v. Wright, 103 Cal.App.4th 811, 822 (2002). However, there is evidence of an intent, if not the actua...

Excerpt: ...aintiffs' responses to the disputed form interrogatories were incomplete, evasive, or otherwise improper. (See, e.g., Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783- 784.) Defendant shall give notice. Motion to Compel re Special Interrogatories Defendant Select Portfolio Servicing, Inc.'s motion to compel further responses to special interrogatories is GRANTED. Plaintiffs Christopher C. Becker and Debra A. Becker shall serve complete, code- comp...

Excerpt: ... LLC (S.D. Ind. 2010) 270 F.R.D. 430, 435, stated that "the simple fact that a claimant has had social communications is not necessarily probative of the particular mental and emotional health matters at issue in the case. Rather, it must be the substance of the communication that determines relevance." The Simply Storage Court rejected a privacy argument, stating that it didn't apply even if the plaintiff locked her website (which De Angelis did...

Excerpt: ...rm represented the partnership, the partnership cannot assert attorney-client privilege against Rose. (Evid. Code 962; Wortham & Van Liew v. Superior Court (1987) 188 Cal.App.3d 927; Hecht v. Superior Court (1987) 192 Cal.App.3d 560, 565.) The court DENIES both motions. Both Plaintiff's and Defendants' request for monetary sanctions are DENIED. Based on the evidence presented in connection with the motion, the Court finds as follows: 1. There is ...

Excerpt: ...ke the imposition of sanctions unjust.” (See C.C.P. §2023.030(a) and C.C.P. §2031.310(h)). The Court notes Plaintiff did not attempt to meet and confer, after obtaining an extension for filing the instant Motion. (See Petersen Declaration). The communication offered by Plaintiff as Exhibit C to the Petersen Declaration indicates Defense Counsel granted an extension and communicated an intent to Supplement. Based on the same, it appears likely...

Excerpt: ...nent is a non-party, CRC Rule 3.1346 requires that the motion to compel be personally served upon him or her. The POS attached to the motion does not show such required service (nor does it show authority to accept by another). Second, assuming Mr. Guerra is indeed the current president of cross- complainant Roof RX, Inc., service of a notice of deposition is effective to require a party or party-affiliated witness to attend and to testify. CCP �...

Excerpt: ...ns against Defendant in the amount of $1,860.00, which is also due within 30-days. Moving Party is to give notice. 2. Motion to Compel Response to Requests for Admissions; Plaintiff Southern California Gas Company's Motion to Compel Defendant Dutra Construction Co., Inc. to Provide Further Responses to Plaintiff's First Set of Requests for Admissions, Nos. 1-6, is GRANTED. The Court compels Defendant to provide a verified further response within ...

Excerpt: ...ndant must state whether, in fact, any responsive information is being withheld on the basis of the privilege. Amended responses due in 20 days. The court awards $500 sanctions. ...

Excerpt: ...away, February 26 th. The Court does not grant the request for a terminating sanction at this time as an incremental approach is warranted. (See Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 572, 604; Doppes, 174 Cal.App.4 th 967, 993-4). The alternative request for evidentiary sanctions is not sufficiently supported as the papers fail to specify the particular matters that the Defendant would be prohib...

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: ...ummary judgment is not whether the evidence is “overwhelming;” it is whether there is any dispute in the evidence. The evidence identified by the moving party raises a question of fact that cannot be resolved without weighing the evidence. Also, Plaintiff failed to comply with CRC, Rule 3.1350(b). Since waiver and estoppel are not generally jury questions, the court is considering severing those defenses and trying them separately, before the...

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...

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: ... 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: ... the defendants and they sought to recover their first appearance fees, and another minor sum, for a total of $2,177.25. First, an order was entered inadvertently on 11/28/17 awarding these Defendants the costs, while the Plaintiff's (mislabeled) motion to strike was pending. Given this, the Court finds it appropriate and necessary to consider the Plaintiff's Motion to strike at this time. Nevertheless, the Motion was untimely under CRC 3.1700(b)...