Excerpt: ...ition precedent to coverage under such policy. See Brizuela v. Calfarm Insur. Co. (2004) 116 Cal.App.4 th 578, 590; Hickman v. London Assurance Corp. (1920) 184 Cal. 524, 529-30. As the Cross- Defendants failed to oppose the motion, they failed to meet their evidentiary burden to show the existence of a triable issue of material fact. The Motion is also granted as to the Petition. The court determination that there is no coverage for the Plaintif...

Excerpt: ...ement funds. Before the Court this day a demurrer and motion to strike to the Third Amended Answer. Demurrer Pursuant to CCP §430.20, a party may demur to an answer on only one of three grounds: (1) Failure to state facts sufficient to constitute a defense; (2) Uncertainty; (3) Failure to state whether contract is oral or written. Plaintiff apparently takes issue with all twelve affirmative defenses. Right out of the gate this demurrer is proced...

Excerpt: ...y motion to be heard after the discovery motion cutoff date, the party must first file a motion under CCP §2024.050 for leave to have the motion heard after the discovery motion cutoff date, and must meet and confer over that issue. However, plaintiff filed its motions on September 25, 2017, 25 days before the last day for motions to be heard based on the November 6, 2017 trial date, which was October 20, 2017. Nonetheless, court congestion caus...

Excerpt: ... condition and repair. Owner argues that Plaintiffs were prior occupants, so under ¶2.5, they were responsible for any corrective work. But even if that were so, the Complaint does not concede prior occupancy. Accordingly, the Demurrer on this ground fails, as it is not self-evident from the terms of the Lease that Plaintiffs were solely responsible for repair of any alleged roof leaks. Owner also argues that under ¶ 8.8 of the Lease, Plaintiff...

Excerpt: ...f the plaintiff against which a determination is sought. (Code Civ. Proc., § 761.020, subd. (c).) If the plaintiff admits the validity of any adverse claim, the complaint must also contain that admission. This enables the action to determine the title against all persons, with specified exceptions, and avoids the need to litigate interests accepted as valid and to which the plaintiff's title is subject. (Code Civ. Proc., § 762.060, subd. (c).) ...

Excerpt: ...ed in favor of the claimant. (Independence Bank v. Heller (1969) 275 Cal.App.2d 84, 88.) For the bank account, Mr. Wible has now presented adequate support for his claim that his wife's Social Security benefits are directly deposited therein. For the PT Cruiser, Mr. Wible has now presented sufficient information to show the actual value, and that it falls within the exemption available under C.C.P. § 704.010(a). For tools of the trade, Mr. Wible...

Excerpt: ...dant is entitled to judgment on the pleadings. However, based on the case of CashCall, Inc. v. Superior Court (2008) 159 Cal. App. 4th 273, 284, the court should allow plaintiff an opportunity to amend the complaint to add a new individual plaintiff. Defendant is ordered to give notice of the ruling. ...

Excerpt: ...g the matter of Service, to ensure that service is proceeding diligently. The Court will also continue the trial date and related dates to a date to be determined during this hearing. Plaintiff and the other parties are expected to proceed diligently with discovery as to the new defendant. All parties shall cooperate in providing new defendants with copies of any discovery pleadings promptly upon request. 2. Motion to Compel Depositions The Court...

Excerpt: ...efusing a party leave to amend his pleadings so that he may properly present his case”. Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530. Plaintiff is not changing the nature of this case, and his new claims are based on the same nucleus of operative facts. All of plaintiff's proposed new causes of action appear to be based on the same overall transaction and course of events. The amendment would not result in any undue prejudice to de...

Excerpt: ... the notice of settlement to the class). The court sees no reason to require Class Members to file claims. Unless counsel can explain to the court why such a provision should be required, it will have to be deleted. The release language in the notice to class (p. 3) covers claims “that were or could have been alleged under California law based on the factual allegations contained in the First Amended complaint”, but the settlement agreement (...

Excerpt: ...enforced.” (Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37, citing Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 305.) The settlement agreement here names six parties, including Lucy Garcia. Plaintiff submits no evidence Lucy Garcia executed the agreement. Defendants to give notice. ...

Excerpt: ...on within an action, one or more affirmative defenses, one or more claims for [punitive] damages, or one or more issues of duty”]; McCaskey v. California State Auto. Assn. (2010) 189 Cal.App.4th 947, 975 [court cannot grant summary adjudication “‘to the extent' a cause of action rests on this or that premise”].) With respect to defendant's first contention that the first amended complaint is a sham pleading, the sham pleading doctrine is ...

Excerpt: ...does not add “M.D.” or anything similar after his name. In response, the defendant presented evidence from the Board that Mr. Reeder is not a physician licensed to practice in the State of California. Without any competent evidence of medical malpractice the plaintiffs have no claim. (The court further notes that the plaintiffs' opposition did not comply with the applicable Rules of Court.) The objections of the defendant are SUSTAINED. The d...

Excerpt: ...evidence is put forward, the burden shifting analysis in circumstantial evidence cases is not utilized. Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 138. With direct evidence, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. Cordova v. State Farm Ins. Companies (9th Cir. 1997) 124 F.3d 1145, 1150; Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221 (“This comme...

Excerpt: ...en settlement agreement is denied. The proposed written settlement agreement (Ex. D to moving papers) contains multiple terms which were not part of the parties' oral settlement agreement on the record, as reflected in the transcript of the Mandatory Settlement Conference (Ex. A to moving papers). CCP 664.6 does not authorize the court to order a party to sign a written settlement agreement which “rewrite[s] the oral settlement agreement or add...

Excerpt: ...btor's substantive rights by depriving it of property. Thus, the Landstar decision is applicable and the Convention does not authorize the issuance of a Letters Rogatory to enforce the Judgment. The Landstar opinion impliedly limits the court's inherent authority on this issue. This scenario is similar to the issue of awarding costs for copies, which are not helpful at trial. “Because the Legislature has expressly stated in subdivision (a)(12) ...

Excerpt: ...ance. Defense counsel has provided no authority in support of its opposition to this motion. The court need not consider points unsupported by legal analysis or authority and such points are deemed waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784- 785; Walters v. Boosinger (2016) 2 Cal.App.5th 421, 433, fn. 16.) Plaintiff's request for judicial notice is GRANTED. Plaintiff to give notice. Future Hearings: CMC: 3/14/18 8:30 am ...

Excerpt: ...018, defendant/cross-complainant Rudolph & Sletten filed its “Response” on February 13, 2018, and Black Diamond filed its Reply on February 14, 2018. CCP section 877.6(d) provides that “the party asserting the lack of good faith shall have the burden of proof on that issue." Rudolph & Sletten's Response attempts to discharge this burden only with respect to one issue, namely the Court's ability to determine the reasonableness of the propose...

Excerpt: ...ord Bernstein, M.D., and Newport Coast Surgery Center, Inc. (NCSC) (collectively, cross-complainants) do not lack standing to sue on the subject lien agreements (see XC at ¶¶ 20-22, Exhs. 1, 3, 5; see also Complaint at ¶ 23, pp. 6-7), and nothing in the cross-complaint or judicially noticed documents affirmatively demonstrate cross-complainants lack the capacity to sue pursuant to Business and Professions Code section 17918. As for the demurre...

Excerpt: ...lled legal training and ability in trying the cause, and the time consumed. (Stokus v. Marsh(1990) 217 CA3d 647, 657.) Here, Defendants wish to cap the fee award at no more than $70,548.00. There are 5 challenged items. Three items (dates of 11/19/14, 8/29/17, and 10/16/17) list the task of “legal research.” Another item (dated 1/21/16) lists the task of “analyze account history.” The last item (dated 10/13/16) lists the task “review an...

Excerpt: ...evelopment. The project included seventy-eight (78) residential units and six (2) two-story structures. Although there was already a Condominium Act in California, the governing decision-makers of Manor elected to operate the development as a non-profit stock cooperative. While similar to a condominium, the biggest difference is that in a co-op the resident members do not own the unit they occupy; instead, they enjoy an exclusive leasehold of the...

Excerpt: ...vative or individual claims is debatable. But the Cross-Complaint contains allegations of individual harm, and the court must accept those as true for purposes of a demurrer. As the court has previously noted (see Minute Order of October 19, 2017), this is a small, close-held corporation run by immediate family members. Allegations of harm to the corporation can also constitute harm to the individual cross-complainants. (See, e.g., Goles v. Sawhn...

Excerpt: ... seventh cause of action for fraud still does not plead sufficient facts to show the alleged representations. At best, the plaintiffs ask the court to assume that Eggert made misrepresentations to Progressive Insurance in order to be placed on the list of approved repair facilities. But it is unknown whether any fraudulent statements were made, what they were, or whether Progressive even relied on them in designating Central Valley RV Repair as a...

Excerpt: ...a proceeding has been duly assigned for hearing and determination to one department of the superior court ..., and the proceeding so assigned has not been finally disposed of therein or legally removed therefrom, it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned.” In re Marriage of Schenck (1991) 228 Cal.App...

Excerpt: ...se by Monday, 2-26-18, by fax or overnight delivery to counsel for plaintiff Perez. Plaintiff Perez's request for monetary sanctions against defendant Pho Hoa Soan, Inc. is GRANTED in the sum of $3,120.00, pursuant to C.C.P. § 2031.320(b), payable by defendant Pho Hoa Soan, Inc. within 21 days. Finally, plaintiff Perez's request for issue and/or evidentiary sanctions is DENIED as defendant Pho Hoa Soan, Inc. has not violated any prior discovery ...

Excerpt: ...d with plaintiff's new employer and misrepresented that plaintiff was still employed by HFIC and used this false information to claim that plaintiff was not authorized to take any claims from HFIC insured individuals. (SAC at ¶ 45.) However, plaintiff failed to plead all required elements of an intentional misrepresentation claim with the required particularity and factual specificity. Thus, plaintiff has not alleged defendants engaged in an ind...

Excerpt: ...e in confusing the various advertisements Defendants have published. This error did not cause any significant effect on the pleading. In the declaration of Proud Usahacharoenporn, there was adequate explanation for this mistake. Plaintiff's first cause of action sufficiently alleges breach of contract, as Judge Crandall previously concluded in connection with Defendants' prior demurrer. See Constructive Protective Servs, Inc. v. TIG Specialty Ins...

Excerpt: ..., 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 contract, the evidence shows the terms of the subject contracts were memorialized in part in written...

Excerpt: ...intiff also asserts the agreement is uncertain because it requires the plaintiff to send any claim to an unnamed vice-president by registered or certified mail. But she fails to show how this is critically uncertain or how she was in any way prejudiced by the alleged uncertainty. Finally, the plaintiff asserts the agreement violates element five of the holding in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83. But s...

Excerpt: ...et profits of her law firm for the years 2010 through 2014. Plaintiff responded to each of these interrogatories by referring to tax documents that Plaintiff would produce reflecting the law firm's profits on an annual basis. Special Interrogatory Nos. 39 through 42 ask Plaintiff to provide the business expenses for her law firm for the years 2010 through 2013. Plaintiff responded to each of these interrogatories by referring to tax documents tha...

Excerpt: ...ive, Suite 100, Santa Ana, California, 92707. The parties may, at their discretion, meet and confer to schedule a different date/time/place for the deposition. However, the deposition shall occur no later than March 15, 2018. Defendants are awarded sanctions against plaintiff in the amount of $976.00, not the entire amount of $2,588.50. Defendant knew the day before the deposition that plaintiff was not going to show up. There was no need for him...

Excerpt: ... motion states it is only being brought by defendant Gladys Ross. Which is it?) The motion is legally ineffective because Code of Civil Procedure section 663 is inapplicable in situations where, as here, the allegation is that the proof of service was not adequate. Section 663 applies where the default judgment exceeds the prayer or is entered without a required statement of damages. (Weil & Brown (TRG 2017) Civil procedure Before Trial, Para. 5-...

Excerpt: ...e party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or la...

Excerpt: ...filed by Fairway Insurance, and if not, why not. Defense counsel's supplemental brief to be filed 9 court days before the continued hearing date. Any opposition by defendant Tim Roham, D.O., Inc. to be filed 5 court days before the continued hearing date of 3-22-18. The court notes that defense counsel remains counsel of record for defendant Tim Rohan, D.O. Inc. at this time because defense counsel's motion to withdraw as counsel has not been gra...

Excerpt: ...s court. “The order of the reviewing court is contained in its remittitur, which defines the scope of the jurisdiction of the court to which the matter is returned. ‘The order of the appellate court as stated in the remittitur, ‘is decisive of the character of the judgment to which the appellant is entitled. The lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the case, and if...

Excerpt: ... assuming that service was improper. Substituted Service: There is a significant issue whether a proper person was served for substituted service to be effective. Service was made on Joaquin Trujillo, “caretaker.” Defendant contends that he was a neighbor. If service was improper, a reasonably prudent person would assume an Answer was not required. CCP 415.20 (b) provides that “If a copy of the summons and complaint cannot with reasonable d...

Excerpt: ...ice of the notice of ruling of the Case Management Conference (which set the court trial date) was filed showing service on defendant's counsel. Counsel's concern that he never received notice of trial does not carry much weight given the presumption of Evidence Code section 664 and the fact it appears he elected not check the court's file for over five months after the answer was filed, but did, serendipitously, check it on December 27, 2017, th...

Excerpt: ...gs. The plaintiff shall give notice. ...

Excerpt: ...s entitled to the attachment order. Code Civ. Proc., §§ 485.240 & 492.050. Moving parties have not shown that the amount to be secured by the attachment should be reduced, or by what amount the attachment should be reduced. Moving Parties offered no evidence to show their likelihood of prevailing on their cross-claims or the amount of offset pursuant to the cross-claims. Moving parties have not shown that section 3.3 of the distributorship agre...

Excerpt: ...burden of demonstrating that the challenged cause of action arises from protected activity.' . . . In City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695 (Cotati ), the California Supreme Court explained: “[T]he statutory phrase ‘cause of action ... arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition...

Excerpt: ...ordance with California Rule of Court 2.550, the court finds that the nature of the documents Scottsdale seeks to seal, i.e., an insurance application and correspondence between Plaintiffs and Scottsdale related to insurance coverage, supports sealing the documents due to the confidential information set forth in such materials. In addition, the proposed sealing is narrowly tailored and extends only to certain exhibits submitted by Scottsdale in ...

Excerpt: ... (or any other entity) these two subpoenas apply to. In addition, the Calcor Space Facility, Inc. court explained that: “Because of the potential for promiscuous discovery imposing great burdens, even though ultimately the probative value of the discovered material may be questionable, trial judges must carefully weigh the cost, time, expense and disruption of normal business resulting from an order compelling the discovery against the probativ...

Excerpt: ...uch counsel is acting an advocate before a jury. As reflected in the Court's May 9, 2017 Minute Order, both sides waived jury on that date. The “Discussion” of Cal. Rule Prof. Conduct, Rule 5-210 states in part: “This Rule is not intended to encompass situations in which the member is representing the client in an adversarial proceeding and is testifying in front of a judge.” As the potential for attorney Recchia to testify as a witness i...

Excerpt: ...sts for Admission, Set One (the “RFAs”) were propounded to Plaintiff on 10/19/17, and that despite an extension to 12/7/17, no responses were ever provided. (Kruppe Decl. at ¶¶ 2-4 and Ex. A.) The arguments presented in the Opposition do not warrant a continuance: unless responses in substantial compliance with C.C.P. § 2033.220 are provided before the hearing, the matters specified in those RFAs shall be deemed admitted. Sanctions are imp...

Excerpt: ...cause for a continuance. “Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only wher...

Excerpt: ... ordered to serve verified, non-evasive responses to the interrogatories without objections within ten days. Motion No. 3. Plaintiff's Motion Compelling Defendant Mindy Kennedy Alvarez to Serve Verified Responses Without Objections to Plaintiff's Inspection Demand, Set No. 1, is GRANTED. Defendant is ordered to serve verified, non-evasive responses to the inspection demands without objections and all responsive documents and things within ten day...

Excerpt: ...ndant. The court finds that the objections raised in the response and amended response are without merit. The arguments as to attorney client privilege are also without merit, and have been waived by failing to assert the same in the initial response to the interrogatory. Code Civ. Proc. § 2030.290(a). A party to litigation can obtain contact information for an opposing party even if that party is represented by legal counsel without involving a...

Excerpt: ... special interrogatories, form interrogatories, and requests for admission. See, Obregon v. Superior Court (1998) 67 Cal.App.4 th 424, 433 to 435 and Townsend v. Superior Court (1998) 61 Cal.App.4 th 1431, 1435. New counsel for plaintiffs Hamid Hojati, et al. has represented that a further meet and confer might assist in resolving all or some of these pending discovery matters. Defendant Portales to file a supplemental declaration nine (9) court ...

Excerpt: ... while these motions were pending, Defendant served supplemental responses to these requests. As described below, Plaintiff's motions are granted in part and denied in part. The court has reviewed all of the materials submitted in support of and in opposition to these motions, including Defendant's supplemental responses. Defendant is ordered to send a letter to Plaintiff by February 22, 2018 stating whether Defendant has withheld any documents o...

Excerpt: ...and Donna Chavez (collectively Chavez) (Defendants, Cross- Complainants, and Cross-Defendants.) City moves for Summary Judgment on the Cross- Complaint filed on 8-14-17 by Holt Meyer (Defendant, Cross-Complainant, and Cross- Defendant). Request for Judicial Notice: The Court GRANTS Plaintiffs' Request for Judicial Notice of Exhibits 6-1, 6-2, and 6-3 (La Habra Municipal Code sections 12.20.100, 12.20.010, and 12.20.080) pursuant to Evidence Code ...

Excerpt: ...e DENIED. Initially, the Applications brought against Defendants Rainguard Pro, Inc. and Weatherman Products, Inc. are DENIED as Plaintiff submitted no evidence demonstrating a contractual relationship with these entities. Pursuant to Code of Civil Procedure section 483.010(a) “an attachment may be issued only in an action on a claim or claims for money…based upon a contract, express or implied….” Here, the Contract which forms the basis ...

Excerpt: ...il on 12-28-17. The Notice of Hearing, filed on 1-10-18, shows Defendant received notice of the hearing set for 2-13-18 at 1:30 p.m. Second, an attachment may issue only upon a claim for money based upon an express or implied contract. (Code Civ. Proc., § 483.010, subd. (a).) Plaintiff has established that its claim is one upon which attachment may be issued since its claim is for money based on an implied contract. Here, the Complaint alleges c...

Excerpt: ...he Demurrer has merit. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, we deem plaintiffs to have abandoned the issue.”].) CMC is continued to 4-2-18, Dept. C11, at 8:45 am. Moving Party is to give notice. ...

Excerpt: ...51, 974.) “A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.' [Citation.] (Lazar v. Superior Court (1996) 12 Cal.4 th 631, 645.) The FAXC adequately alleges fraud as follows (1) G...

Excerpt: ...ic rules of civil litigation. Trial judges must acknowledge that in propria persona litigants often do not have an attorney's level of knowledge about the legal system and are more prone to misunderstanding the court's requirements. When one party has counsel and the other does not, the trial court should monitor to ensure the in propria persona litigant is not inadvertently misled, either by the represented party or by the court. Special care sh...

Excerpt: ...¶12 of Ruiz Declaration and Exhibit “I” thereto.) Additionally, the Court finds the joinder of Mary Block to the Cross-Complaint is appropriate, pursuant to Code of Civil Procedure sections 428.20 and 378(a)(1). MP to give notice. ...

Excerpt: ...Defendant did not set a hearing date and thus, a date for the response could not be calculated. Even if the content and the notice of the motion was adequate, the motion is untimely and not supported by any admissible evidence. Defendants to give notice. ...

Excerpt: ...4-18 Fourth Amended Complaint was filed. Because there is but one complaint in a civil action (Ford v. Superior Court (1973) 34 Cal.App.3d 338, 343), the filing of an amended complaint moots a motion directed to a prior complaint. (See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 [filing of first amended complaint rendered moot demurrer to original complaint].) Thus, once an amendedcomplaint is fi...

Excerpt: ...endant Laguna Crest Enterprises, Inc seeking responses to 1 st Set of Special Irogs from Cross-Defendant Tresor Investments, LLC, there does not appear to be any opposition. The Declaration of Josef M. Cowan (Attorney for Cross-Complainants Kenneth John Fischbeck and Laguna Crest Enterprises, Inc) states that he served the special irogs on Tresor Investments on 5-9-17 and has not received any responses. As MP is entitled to discovery herein, and ...

Excerpt: ...70, subdivision (a), explains, “The party propounding interrogatories, and the responding party may agree to extend the time for service of a response to a set of interrogatories . . . .” Code of Civil Procedure section 2030.290 states, in part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: . . . [¶] (b) The party propounding the interrogatories may move for an order compellin...

Excerpt: ...to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581(f)(2).” Code of Civil Procedure section 581(f)(2) states: (f) The court may dismiss the complaint as to that defendant when: … (2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave ...

Excerpt: ...urther responses were served on 8-18-17. Defendants denied RFA Nos. 7-10, stated that they will produce all responsive documents to RFPD Nos. 5-24, and provided amended responses to Form Irogs. Further, former counsel for Defendants attests that documents were produced on or about 10-6-17, and he tendered the sanctions check on behalf of Defendants, but that counsel for Plaintiff refused to accept the check. (Bitzer Decl., ¶¶ 13-14.) While it a...

Excerpt: ...ade, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” Code of Civil Procedure section 1287.4 provides, in part, “If an award is confirmed, judgment shall be entered in conformity therewith.” Here, Defendants (James Merizan and Jeannie Merizan) do not challenge the validity of the arbitration award. Thus,...

Excerpt: ...e section 2030.270, subdivision (a), explains, “The party propounding interrogatories, and the responding party may agree to extend the time for service of a response to a set of interrogatories . . . .” Code of Civil Procedure section 2030.290 states, in part, “If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: . . . [¶] (b) The party propounding the interrogatories may move for an...

Excerpt: ...sn. v. Touchstone Ins. Servs.(1994) 27 Cal. App. 4th 1085, 1091. No party has filed Opposition to this motion. Regardless, the settlement by Cross-Defendant Lonerock, Inc. appears does not appear to be “so far 'out of the ballpark' in relation to these factors as to be inconsistent with the equitable objectives of the statute.'” Id. Liability of Lonerock, the general manager of the construction site, appears questionable. And the law concerni...

Excerpt: ...tate Automobile Assn. (2010) 189 Cal.App.4th 947, 975.) Plaintiff Luke Slovenec's (plaintiff) request for judicial notice is DENIED as to items 1 and 2, and GRANTED as to item 3. Items 1 and 2 require a copy of the docket from the underlying dissolution proceedings. Plaintiff has failed to provide the court with a copy of that docket and nothing indicates plaintiff has made arrangements with the clerk to have the docket available at the time of t...

Excerpt: ...following reasons, Defendant's motion is granted. A. Vicarious Liability California law generally imposes liability on the owner of a vehicle, albeit there is a limitation on the amount of damages that may be collected for any resulting death or injury. See Cal. Veh. Code §§ 17150, 17151. The Graves Amendment, however, precludes liability based on the law of any state against an owner that is in the business of renting vehicles, if the harm occ...

Excerpt: ... Moving Parties claim summary adjudication is appropriate as to both cross-defendants, Antonio Medina and GNA on the first and fourth causes of action. Moving Parties argue the indemnity provisions of the contracts between Pelican and Responding Parties include RPs' duty to defend Pelican in this action. MPs imply they are entitled to collect the cost of their defense in this suit. It could very well be that Medina and GNA did owe MPs a duty to d...

Excerpt: ...1) 91 Cal. App. 4th 875, 882. Defendants' Request for Judicial Notice: Granted as to taking judicial notice of the language of Judicial Council Form Interrogatory No. 4.1. See, Evidence Code § 452(h). Plaintiff's Objection to and Motion to Strike Motion for JNOV and Associated Documents: Plaintiff objected and moves to strike the following pleadings for failure to comply with the rules of court: (1) the declaration of Jenos-Heidari filed in supp...

Excerpt: ...potential prejudice to Defendants, trial is continued from 4/30/18 to 10/1/18 and the MSC is continued to 8/31/18. All other pretrial dates are continued consistent with the new trial date. Plaintiff to give notice. Motion to Compel Compliance with Business Records Subpoena The Motion by Defendant Fotona, LLC's (“Fotona”) to Compel Institute for Advanced Laser Dentistry's (“IALD”) compliance with business records subpoena is GRANTED in pa...

Excerpt: ...f action for Malicious Prosecution and new allegations regarding the express written release currently pled in the Cross Complaint. The court finds no prejudice to Cross Defendants resulting from Cross Complainant's delay from July to January in seeking this leave. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in...

Excerpt: ...Defendants' demurrer is overruled. Plaintiff law firm alleges that a third party minor's father signed a contingency fee agreement with Plaintiff in February 2017. Plaintiff alleges that approximately two months later, Plaintiff was informed the third party had decided to retain another attorney to pursue her personal injury claims. Whether the third party's initial fee agreement with Plaintiff is valid is immaterial to Defendants' demurrer. In c...

Excerpt: ...the prevailing party, and award costs of suit and statutory attorney fees, at the conclusion of a litigation, after all the claims are resolved. [See CCP §1033.5(a)(10), (c)(5)); Cal.R.Ct. 3.1702(a),(b), 8.104(a); Civ. Trials & Evid. §§ 17:151-52, 17:166 (Rutter Group 2017); P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1052.] Here, the case is not over, and Plaintiff still has one undisposed-of ...

Excerpt: ...ose employing broker is Lee Humphrey Durst. As a matter of law in CA, only a licensed real estate broker may receive the commissions in connection with real estate transactions; any other procedure is a violation of B&P 10138, and subjects Bianca Espinoza to discipline, including suspension and/or revocation of her license. (Miller & Starr, 2 CA Real Estate, Section 5:56.) Thus, all real estate commissions paid for her services as a real estate a...

Excerpt: ...orizon facility for an event sponsored by Defendant. Defendant initially objected to this interrogatory and responded “hotel venue vendor;” in its supplemental response, Defendant objected again and responded that it “is not ‘affiliated' with Horizon Resort & Casino” and that Defendant “has used Horizon as a hotel venue vendor on two occasions.” Plaintiff's motion to compel is granted. Interrogatory No. 1 seeks relevant information....

Excerpt: ...ued hearing. The court also ordered plaintiff to give notice. Nothing in the court file indicates that plaintiff gave notice, or met and conferred as ordered. Plaintiff's counsel is ordered to engage in the meet and confer required by Code of Civ. Proc. § 430.41 as to the issues raised by this demurrer, and to file and serve a declaration evidencing such efforts not less than nine court days before the continued hearing. Plaintiff to give notice...

Excerpt: ...ged. The Demurrer to the Sixth Cause of Action For Rescission is SUSTAINED without leave to amend, on the basis that rescission is a remedy not a free-standing cause of action. This is without prejudice to the pleading of the remedy of rescission in connection with an appropriate supporting cause of action. The Demurrers to the Eighth and Ninth Causes of Action For Concealment and Fraud are SUSTAINED with leave to amend, on the basis that the fac...

Excerpt: ...eveal 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 legitimate authority to ...

Excerpt: ...C does allege facts to support its claim as to her “creditor” status. (FAC ¶¶ 9 & 10.) Nor is the TILA claim clearly time-barred. Buyers argue that even if she is a creditor, there is a 3-year limitation on the right to rescind. But a demurrer on statute of limitations grounds will not lie where the action is not necessarily barred – the defect must appear clearly and affirmatively upon the face of the complaint. (Lee v. Hanley(2015) 61 C...

Excerpt: ...ently in her position. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4 th 317, 355.) The complaint also fails to allege facts showing a discriminatory motive. (Id.) Rather, this is alleged as a conclusion only. (Complaint at Para. 10.) Statutory claims must be alleged with specificity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) The second cause of actio...

Excerpt: ...200.00 per hour x 4 hours) + $150.00 for no-show fee + $60.00 for filing fee + $9.95 for e-filing fee] within fifteen (15) days of the date of notice of this order. Defendants to give notice. ...

Excerpt: ...red to provide full, complete, and verified responses, without objection, to Special Interrogatories, Set One, Special Interrogatory Nos. 7-21, to the offices of counsel for moving party, within 20 days. Defendant Robert Payne is also ordered to provide full, complete, and verified further responses, without objection, to Special Interrogatories, Set One, Special Interrogatory Nos. 2, 4 and 5, to the offices of counsel for moving party, within 20...

Excerpt: ...very request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.” Next, the mutual requests for sanctions are denied given the legitimate dispute over whether the documents being withheld are privileged or not. See, C.C.P. § 2031.310(h). Prevailing party to give notice. Future Hear...

Excerpt: ...ng averment for punitive damages. Initially, there continues to be a concern over standing. Although defendants have not raised the issue, this lingers on from the prior unsuccessful application for appointment of a guardian ad litem. As indicated in the operative pleading and opposition papers, it appears this litigation is being handled by plaintiff's daughter, Dellia Montgomery. The “authorization” presented by her to this Court specifies ...

Excerpt: ...oving papers, was a letter from the Defendant's counsel, dated 10/5/17, expressing that a response to this motion was unlikely. (See ROA 28, Ex. C.) Because of the harmful effect that admissions can have on the case, the RP can serve verified, substantially-compliant responses to RFAs, before the hearing, and if so, then the Court must deny the motion to deem them admitted. [See CCP §2033.280(c); St. Mary v. Superior Court (2014) 223 Cal.App.4th...

Excerpt: ...d plaintiff's evidence shows there was none. (See D. White Decl. at ¶ 2.) Defendants have also failed to demonstrate ostensible agency. The fact that Derek signed the arbitration agreement as decedent's “Representative/Agent,” stating decedent had authorized him to do so, is not sufficient to demonstrate ostensible authority. An “agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to cr...

Excerpt: ... Court (2012) 209 Cal.App.4th 1151, 1168.) Judgment creditor Flathers Precision, Inc. has failed to and cannot establish the underlying September 28, 2017 turnover order (“Turnover Order”) was valid for purposes of contempt. The Turnover Order was sought and issued pursuant to Code of Civil Procedure section 708.205. It ordered judgment debtor Jimmy Garrey (Garrey) to deliver to the judgment creditor either (1) certain nonmonetary property li...

Excerpt: ... Superior Ct. (2003) 114 Cal.App.4 th475, 480-81 (financial records are protected by individual's right to privacy); Valley Bank of Nev. v. Superior Ct. (1975) 15 Cal.3d 652, 656 (individual has right to privacy in his or her confidential financial affairs). Plaintiff has not identified countervailing interests that outweigh Defendant's privacy interests in his financial records with respect to much of the information sought by the subpoenas. See...

Excerpt: ...arvig requests from this Court an order relieving it from further participation in this case. An attorney may withdraw as counsel of record if the client breaches the agreement to pay fees, insists on pursuing invalid claims or an illegal course of conduct, or when other conduct by the client renders it unreasonably difficult for the attorney to do his job, including when there is a breakdown in the attorney-client relationship. California Rules ...

Excerpt: ...in issue and the burden of proof is on the party claiming them as costs. [Citations.]” (Ladas v. California State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774-776 [citations omitted].) Here, Plaintiff has properly put at issue some deposition costs claimed by Defendants as being duplicative and unnecessary. Thus, the burden shifts to Defendants to show that the claimed costs were necessary to the litigation. Defendants have met their burden. No d...

Excerpt: ...ode of Regulations for the subject premises. Evidence Code § 669 codifies the “negligence per se” doctrine as a presumption affecting the burden of proof: i.e., defendant's failure to exercise due care is presumed if: • Defendant violated a statute, ordinance or safety regulation of a public entity; • The violation legally caused injury or death; • The occurrence resulting in the injury or death was of a nature that the statute, ordina...

Excerpt: ... The requests are overbroad as framed, however, and are narrowed as follows: 37. Documents reflecting all complaints by owners of 2012 BMW 328i vehicles regarding the coolant light repeatedly illuminating, for the period July 1, 2011 through June 30, 2016. The documents are to be redacted to exclude personal identifying information of the buyer(s)/owner(s). 39. Documents reflecting all repurchases or replacements by YOU of 2012 BMW 328i vehicles,...

Excerpt: ... an act from which she know, or should have known, it was highly probable harm would result. SKF Farms v. Superior Court(1984) 153 Cal.App.3d 902, 907. The Case Management Conference remains on calendar. Defendants to give notice. ...

Excerpt: ...dants. Both of these causes of action also include, respectively, a conclusory allegation that (i) Defendants' conduct “was the result of willful and wanton acts or omissions and/or done with a conscious disregard for the safety of the users of the Product involved in the ACCIDENT,” FAC ¶ 37, and (ii) Defendants' acts were done “willfully, wantonly and/or with a conscious disregard of others.” Id. ¶ 47. In order to survive a motion to s...

Excerpt: ... narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” Additionally, pursuant to CRC 2.551, a Court may not permit a record to be filed under seal based solely on the agreement or stipulation of the parties; rather, a party seeking to file a record under seal must file a motion for an order sealing the record, accompanied by a memorandum and declaration containing facts sufficient to justify the sealing...

Excerpt: ...n, by and through her Guardian Ad Litem, Theresa Nguyen's motion to reduce Medi- Cal Lien is CONTINUED to 3-15-18, at 1:30 p.m., in Department C- 33. First, plaintiff Nguyen is ordered to serve her motion to reduce Medi- Cal lien on the Office of Legal Services, Department of Health Care Services, P.O. Box 997413, Sacramento, CA 95899- 7413, as well as the Department of Health Care Services, P.O. Box 997425, Recovery Section, MS 4720, Sacramento,...

Excerpt: ...tion, the costs requested are proper and the undertaking is to be scaled to Bounds' resources. Defendant New Albertson's, Inc. Motion to File an Undertaking pursuant to Code of Civil Procedure §1030 is DENIED. Defendant has not shown a reasonable possibility of obtaining a judgment in its favor. Even if it had, it has not adequately stated the nature and the amount of the costs requested. Documentation of past costs should be provided. Anticipat...

Excerpt: ...895671) filed 1/05/17 5. Palatinus v. Casa Apts. (2017-932144) filed 7/18/17 CCP 1048 (a) provides that: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” The court DENI...

Excerpt: ...within 15 days of service of the notice of ruling. Baum Vision did not meet its burden to justify its objections. Plaintiff's request for sanctions against Baum Vision, LLC is granted in the amount of $2,170.92, which shall be paid to Plaintiff within 30 days. Motion to Compel Further Responses and Production to Second Set of RFPs (Shane Baum) The unopposed Motion by Plaintiff Barton Perreira LLC to Compel Further Responses and Production to Seco...

Excerpt: ...Act) and breach of contract. In doing so, Plaintiff alleges unlawful acts that can serve as a basis for violations of section 17200. See Lueras v. BAC Home Loans Servicing(2013) 221 Cal.App.4th 49, 81. Indeed, Plaintiff specifically alleges that “[b]y violating the Act, Neff has engaged in unlawful activities, thereby satisfying the ‘unlawful prong' of the UCL [section 17200 et seq.].” FAC ¶ 38. Relying on Prudential Home Mortgage Co. v. S...