Excerpt: ...iff on March 28, 2023. The defendant sent a letter to plaintiff's counsel October 2, 2023, demand-ng that the plaintiff serve responses. Plaintiff did not serve any responses, she did not respond to counsel's letter, and she did not file opposition to the motions. The motions are GRANTED. Plaintiff is ORDERED to serve answers, without objections, in 15 days. Sanctions of $1,500 are awarded jointly and severally against plaintiff and plaintiff's c...

Excerpt: .... SHARON JAMIE, JILL CAPUTO and ANITA CHILVERS), it is unclear to which causes of action each Defendants demurs. MP does not indicate the demurrer is brought joint and severally. Notably, if counsel representing several defendants demurs on their behalf jointly (instead of jointly and severally), the demurrer may be overruled if the complaint is sufficient against any one of them, at least where only a special demurrer as to form is involved (the...

Excerpt: ...0 status conference; and, [2] that there was “court error” by Judge Crandall for dismissing the case (without prejudice) when Pe
Ÿ
Ÿoner was not present at the 10/26/20 hearing and for (erroneously) sta
Ÿng in his minute order that the “Mo
Ÿon to ConÞrm the Arbitra
Ÿon Award was previously granted.” Pe
Ÿ
Ÿoner further contends that, “once the case is revised and an appealable judgment is signed by this court,” he “has an ade...

Excerpt: ...ilding. But the contractor did not perform and was terminated. The association then hired Champion Construction Services to complete the project. Champion's demurrer to the original complaint was sustained with leave. Plaintiff filed a first amended complaint to which Champion has again filed a demurrer. The amended complaint has made several minor adjustments to the factual pleadings, but it has done little to address most of the key issues rais...

Excerpt: ...ement of a proper meet and confer would not serve the intent of the code requirement. The first amended cross-complaint alleges four causes of action: breach of fiduciary duty, fraud, conversion, and breach of contract. The demurrer complains that the four causes of action are uncertain and therefore they each fail to state a viable cause of action. However, the alleged "uncertainties" are little more than challenges to the merits of the crosscom...

Excerpt: ...far as it relates to the fourth cause of action for failure to prevent harassment. However, the law is clear that a supervisor cannot be held personally liable under FEHA for failing to prevent the alleged discrimination. (Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326; see also, Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268, 279- 280.) Demurrer (Blower- Dempsay) The demurrer of defendant Blower-Dempsay Corporation to the fi...

Excerpt: ...uted them to plaintiffs. The complaint seeks damages of over $253,000. The complaint raises six causes of action: 1. Breach of contract; 2. Negligence; 3. Intentional misrepresentation; 4. Negligent misrepresentation; 5. Unjust enrichment; and, 5. Money had and received. The complaint seeks monetary damages and exemplary damages for the alleged misrepresentations as to the status of the ERCs. The answer alleges the following affrmative defenses: ...

Excerpt: ...t admonishes counsel that all applicable statutes and court rules should be complied with in the future and the failure to do so may result in the Court taking a motion off calendar or sanctions, where appropriate. Fourth and Fifth Causes of Action for Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing Defendant's Demurrer argues that the breach of contract claim fails because Plaintiff has not set forth any terms or...

Excerpt: ...section 452, subdivisions (c) and (d). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 (disapproved on other grounds in Yvanova v. New Century Mortgage Corporation (2015) 52 Cal.4th 919, 939 at footnote 13.) "A demurrer tests the pleading alone, and not the evidence or the facts alleged.... To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but ...

Excerpt: ...motion is a renewed motion for summary judgment that was denied on 08/03/23. A renewed motion must be based upon" new or different facts, circumstances, or law..." (See Code Civ. Proc. 1008, subd. (b).) Dr. Perlman's moton is not based upon new or different facts, circumstances, or law, and therefore is denied on that basis. Where a party seeking summary judgment has not addressed all of the relevant allegations of the complaint and/or all theori...

Excerpt: ...laintiff Sean Finnell; Defendant Control Air Enterprises, LLC seeks an order granting summary adjudication against Plaintiff Sean Finnell This Motion was continued from 10/13/23 to allow Counsel to submit Supplemental Points and Authorities re: (1) Why both Defendant Entities are applicable to the MS] and MSA as to the PAGA Claim; and (2) whether the operative Collective Bargaining Agreement references CAE's Member Operating Agreement. For ease o...

Excerpt: ...production of records (set three) within 20 days. No monetary sanctions were imposed. (ROA 175.) Sunglao served responses, which arrived at Plaintiffs' counsel's offce on 8-19-23, but failed to verify those responses. (Declaration of Garrett Skelly, 4-5.) Code of Civil Procedure section 2023.010(g) defines the misuse of discovery process to include "[d]isobeying a court order to provide discovery." Code of Civil Procedure section 2023.030(d) gran...

Excerpt: ...tration Agreement, before arbitration can be compelled. (See 9 U.S.C. 52 and C.C.P. 51281.2). "If a party to a civil action asks the court to compel arbitration of the pending claim, the court must determine in a summary proceeding whether an 'agreement to arbitrate the controversy exist" (Ivere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 754.) "Because the existence of the agreement is a statutory prerequisite to granting the petition, the pet...

Excerpt: ....1346 [must serve motion on deponent].) The court is initially inclined to continue the motion to permit Bottorff to be properly served. The parties should be prepared to discuss whether Bottorff has or needs to be personally served. The main issue is this: Whether communicatons between Bottorff and representatives of The Regents are protected by the attorney-client and/or work product privilege. This is a thorny question under the facts. General...

Excerpt: ...yled as an "Amended Memorandum of Points and Authorities in Support of its Motion to Consolidate." (ROA No. 82.) Even if Plaintiff's Motion met the requirements of Cal. Rules of Court, Rule 3.350, Plaintiff has failed to establish good cause for consolidation of these matters. In assessing a motion to consolidate, courts will typically consider the following factors: (1) timeliness of the motion: i.e., whether granting consolidation would delay t...

Excerpt: ...ther, he was not timely advised of his Fifth Amendment rights during the deposition. Now that Pineda has pled guilty in the criminal matter, there do not appear to be any criminal matter impediments to the taking of a properly noticed deposition. Motion to Compel Examination of Plaintiff The motion of defendant Santa Ana Unified School District to compel plaintiff minor to submit to a psychological examination is GRANTED as modified. The plaintif...

Excerpt: ...an be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 cal.3d 311, 318; Donabedian v. Mercury Ins. co. (2004) 116 cal.App.4th 958, 994 (citing text).l No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal .App.3d 868, 881 —errorfor court to conside...

Excerpt: ...side the pleading which are judicially noticeable under Evidence Code SS 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 li...

Excerpt: .... (Leader v. Health Industries of Arm Inc. (2001) 89 Cal. App. 4th 603, 615.) A court may grant discretionary relief upon the moving party's showing of mistake, inadvertence, surprise or excusable neglect. (ld. at 615-616.) A court must grant mandatory relief upon a showing by an attorney declaration of mistake, inadvertence, surprise or neglect. (ld. at 616.) Courts have limited the application of the mandatory provision to those dismissals proc...

Excerpt: ...on is one that explicitly directs the courts attention to a previous order and seeks to "modify, amend, or revoke" that order. Merely asking the court to grant relief that is inconsistent with a prior order, whether by the same or a different judge, is not a "motion for reconsideration. ' (Sorenson v. Superior Court (2013) 219 Cal. App. 4th 409, 421 n.13.) A motion for reconsideration is commonly thought to have two stages. The court must decide ...

Excerpt: ...ments is made at this time. Motion to Compel Thomas Deposition Code Civ. Proc. S 2025.450(a) provides that when a party deponent is served with a deposition notice and, without having served a valid objection under Code Civ. Proc. S 2025.410, fails to appear for deposition the party giving notice may move for an order compelling the deponent's attendance and testimony at deposition. The moton must be accompanied by a declaration under Code Civ. P...

Excerpt: ...d their counsel of record, Charles Lew and The Lew Law Firm, jointly and severally, to pay monetary sanctions to Plaintiff, by January 29, 2024 in the amount of $5,600.80 for attorney's fees and costs associated with the arbitration and this moton. l. Background Pursuant to their arbitration agreement, the parties stipulated to arbitration on July 7, 2022 (ROA 17) and the Court ordered the case stayed on July 25, 2022 (ROA 23). Plaintiff filed he...

Excerpt: ...an unusual matter involving defaulted parties and related actions concerning the same real property and opposing requests to quiet title. Hung Do ("Do") filed the first action Do v. Dinh, 2019-01072630 (the "Lead Case") on 5/24/19 against Dinh, Nguyen and others. Before being served and before default was entered against Nguyen in the Lead Case on 2/8/22, Nguyen (along with others) filed a separate action on 4/15/21 against Do, Dinh (later dismis...

Excerpt: ...dered by the court to provide responses to discovery, continued failure to respond may result in the imposition of more severe sanctions. (See, e.g., Code Civ. Proc., S 2031.300(c) [requests for production].) The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) In the cas...

Excerpt: ...dicial notice. Plaintiff moves for summary judgment as to the sole cause of action in complaint for partition by sale of the property located at 14821 Riata Street, Midway City, CA 92655 (the "Subject Property"). The Complaint prays for a judgment against defendants for partition by sale of the Subject Property. Parttion is an equitable action governed by statute to determine interests in real property. (Code Civ. Proc., SS 872.010 et seq.; see N...

Excerpt: ... and additions must be submitted as well. In addition, Plaintiffs must provide proof of service of any revised settlement agreement and supporting papers on the LWDA. As to the Settlement: 1. The Court, as well as the settlement (S 7.1), requires declarations from Defendant and counsel to confirm whether there any other actions (class, individual, or PAGA, including PAGA achons in the pre-filing LWDA stage) that could be affected by this settleme...

Excerpt: ...prejudicial to a party's right to a fair trial. Townsend v. Gonzalez (1959) 150 Cal. App. 2d 241, 249-50. Significantly, a new trial cannot be granted unless it is established that the error was prejudicial, i.e„ the error must likely have affected the outcome of the trial. (See Cal. Const., art. VI, S 13 ("No judgment shall be set aside, or new trial granted, ... [forl the improper admission or rejection of evidence . . . unless, after an exam...

Excerpt: ...r to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys' fees in addition to other costs. (See also Code Civ. Proc., S 1033.5(a)(10)(A).) Reasonable attorneys' fees shall be fixed by the court and shall be an element of the costs of suit. (Code Civ. Proc., S 1717(a).) O...

Excerpt: ...w, the Complaint contains suffcient allegations to overcome the general demurrer and the causes of action are also not uncertain. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 ["A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." l.) Re 2nd C/A (nuisance) To establish a private nuisance cause of a...

Excerpt: ...rney fee, the most common award in federal cases, still results in a generous multiplier of 2.47. The average recovery per aggrieved employee does not merit a higher award. Moreover, enhancement awards of $3,000 each, and a total of $33,000 in enhancements, are sufficient for a class and settlement of this size, and considering the average recovery per aggrieved employee, and that there was nothing extraordinary about plaintiffs' contributions to...

Excerpt: ...njured in responding to the fire. The California Supreme Court explained, "Where the defendant's negligence, whether active or passive, creates an apparent risk, which is of the type usually dealt with by firemen, and which is the cause of the fireman's presence, and which is the direct cause of the fireman's injury, the defendant is not liable to the fireman." Lipson v. Superior Court (1982) 31 Cal. 3d 362, 367. Plaintiffs contend that the firef...

Excerpt: ...t provide a red-lined version of any revised papers, including the proposed letter to the aggrieved employees. The Covered period/PAGA Period defined in 51.4 of the PAGA Settlement and Release Agreement should not be based on the date of the signing of the proposed Order Granting Approval of PAGA Settlement and Entering Judgment, but rather on the date the court grants approval of the PAGA settlement. The Covered Claims defined in 51.3 of the Set...

Excerpt: ...how the types of HIPAA violations that give rise to terminations and those that require lesser disciplinary acton (contrary to defendant's asserted zero- tolerance policy), as well as defendant's investigation of HIPAA violations." (ld. Ex. 4 at p. 3.) In turn, this information would reasonably assist plaintiff in evaluating both her own retaliation claims and defendant's assertion that it would have fired plaintiff for the HIPAA violation regard...

Excerpt: ...d #2, and sustained as to #3 (2nd and 3rd sentences only), #4, #5, and the second #1. Plaintiff's request to contnue the hearing to take discovery is denied. The Status Conference set for today is ordered off calendar. A Post-Arbitraton Review Hearing is set for June 28, 2024 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a contnuance if arbitration is not yet complete. The court concl...

Excerpt: ...arties may agree in writing to take the deposition remotely or ata different date, time, or location. Plaintiff has shown the deposition was properly noticed, that defendant failed to timely serve objections, and that defendant failed appear for the deposition or produce documents. (Code Civ. Proc., SS 2025.410, 2025.450, subd. (a); see also Goldsmith decl. "1 4-8, Exs. 1-3.) Plaintiff has also shown and adequate meet-and-confer about the nonappe...

Excerpt: ...aliation for ethics reports by plaintiff to Kaiser (id. '1 9); (iii) failed to respond to plaintiff's complaints about Liu improperly using Kaiser equipment at home (id. '1 14); (iv) Kaiser employee Acevedo calling plaintiff a "stapler" (id. 915); (v) Kaiser employee Acevedo assisting Liu with his child custody dispute on company tme (id. '1 15); (vi) found plaintiff's complaints to Kaiser be without merit (id. '1 21); (vii) falsely claimed that ...

Excerpt: ...8) The Motion to Compel Further Responses to Special Interrogatories (ROA No. 48), brought by Plaintiff David Ulises Castro Herrera, by and through his successor in interest Leslie Plascencia, is GRANTED, in part, pursuant to Code of Civil Procedure secton 2030.300. Defendant Grace Retirement Village, Inc. shall provide further verified responses, without objections, to Plaintiff's Special Interrogatories Nos. 26, 28, 30, 31, 32 and 33, within 15...

Excerpt: ...and 2, is GRANTED. Defendant Blum shall provide full, complete, and verified responses to Special Interrogatories, Set One, Special Interrogatory Nos. 1 and 2, without objection, within 20 days. Plaintiff Carno Law Group's motion to compel defendant Jack Blum to provide further responses to Requests for Production, Set One, is GRANTED in part and DENIED in part. (Code Civ. Proc., S 2031.310.) The motion is DENIED as to Request Nos. 10-12, which r...

Excerpt: ...ntitled to its post offer costs and fees. In a typical action, Moving Party would be correct. But this action is founded on discrimination and seeks the protections of the Fair Employment and Housing Act (FEHA.) Where, as here, the prevailing defendant seeks a post offer claim of attorney fees and costs, it must first show the action was "frivolous." Christiansburg Garment Co. v. EEOC (1978) 434 LIS 412. The Christianburg court affirmed that alth...

Excerpt: ... injury." (Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917.) Here, Cross-Defendant argues that the Crosscomplaint contains no allegation of a duty owed by Cross- Defendant, and as such, no claim for negligence can be stated against CrossDefendant. Review of the Cross-complaint itself confirms this argument. Cross-complainant's cause of action for negligence consists of a single paragraph that is nothing more than a conclusory statement th...

Excerpt: ...ed that the parties attended an informal discovery conference before the court and met and conferred. The stipulated order ordered Defendant to serve responses to multiple sets of discovery without objection, to produce six witnesses for deposition, and to produce documents. Plaintiffs contended that Defendant had not complied with any of these discovery obligations. Plaintiffs met and conferred with defense counsel. who admitted that he dropped ...

Excerpt: ...l prior complaints. (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.) In other words, after an amended complaint is filed, the original pleading "ceases to have any effect either as a pleading or as a basis for judgment." (ld. at p. 1131.) Consequently, "the filing of an amended complaint moots a motion directed to a prior complaint." (Ibid.) For example, the filing of an amended complaint moots a motion for summ...

Excerpt: ... the factual allegatons in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal. , Inc. (2002) 101 Cal.App.4th 1395, 1404- 05.) Defendant demurs to the FAC on the basis that it is uncertain. A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal. 2d 87...

Excerpt: ...ged.. . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, "In the construction of a pleading, for the purpos...

Excerpt: ...ut also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, "In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." Perez v....

Excerpt: ...ctions to Declaration of Gregory A. Kaseno, CPA/A8V/CFF, CVA Objection Nos. 4- 9 —OVERRULED. Plaintiff's Evidentiary Objections to Declaration of Allegra Aguirre Objection Nos. 10-11 — OVERRULED. Defendants' Evidentiary Objections to Declarations of Neel Sain, Michael Sanders, Iqbal M. Abdullah, Chris L Boulter, and Eric Archuletta All objections are OVERRULED. Request for Judicial Notce Defendants request judicial notice of the following: 1....

Excerpt: ...i, Cross Defendant Shadi Nasrawi, Cross-Defendant Maha Nasrawi's Objections to the Declaration of John C. Mulvana are SUSTAINED, except the following objection to Paragraph 7. The objection to paragraph 7 "The litigation that was the subject of the Lysaght retainer, Rabadi, et al. v. Shoubash, et al., Los Angeles County Superior Court Case No. BC459192 (the "Original Action"), was dismissed for failure to prosecute on July 1, 2016" — is OVERRUL...

Excerpt: ...ia judgment immediately entered thereon. The judgment so obtained is fully enforceable in California (subject generally to a 30-day stay after service of notice of entry on the judgment debtor. (Conseco Marketing, LLC v. IFA & Ins. services, Inc., (2013) 221 cal. App. 4th 831, 837-838—SSMJA provides expeditious and economical registration procedure for enforcing sister state money judgments; Washoe Develop. Co. v. Guaranty Fed'l Bank (1996) 47 ...

Excerpt: ...l.App.4th 256, 264 (disapproved on other grounds in Yvanova v. New Century Mortgage Corporation (2016) 62 Cal.4th 919, 939 at footnote 13.) Code of Civil Procedure section 2031.310 states in part, "(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [Y] (1) A statemen...

Excerpt: ...Civil Procedure section 1094.5. (PAs; 8:5-19.) Code of Civil Procedure secton 1094.5 states in part " "(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established the respondent has not proceeded in the manner required by law, the order or decisio...

Excerpt: ...tion must state in writing the 'grounds upon which it will be made.'" Gonzalez v. Superior Court, 189 Cal. App. 3d 1542, 1545 (1987). "Only the grounds specified in the notice of motion may be considered by the trial court. This rule has been held to be especially true in the case of motions for summary adjudication of issues." ld. Based on the above, the existence of any triable issue, as to any claim justifies a denial of this motion. Similarly...

Excerpt: ...gery and requesting leave to amend. Failure to oppose a demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 cal.App.4th 1, 20, sexton v. superior court (1997) 58 cal.App.4th 1403, 1410, Holguin v. Dish Network LLC (2014) 229 Cal.App.4th 1310, 1322, and Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) A party who files no opposition also has no right to present argument at ...

Excerpt: ... sufficient facts to state a cause of action because Plaintiff "lacks stand-ng to maintain this lawsuit." This challenge is based on the contention Plaintiff is a foreign limited liability company that has failed to qualify to transact intrastate business in California. (Corp. Code S 17708.07(a) ["A foreign limited liability company transacting intrastate business in this state shall not maintain an action or proceed-ng in this state unless it ha...

Excerpt: ...gal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal. , Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) For this reason, the court will not decide questions of fact on demurrer. (See Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Instead, the court "treat[sl the demurrer as admitting all material facts proper...

Excerpt: ...efendant was ordered to Answer the Complaint within 15 calendar days of service of the Amended Complaint. With regard to the motion to strike, Plaintiff was ordered to file an amended Complaint not inconsistent with the above ruling. ld. However, instead of filing an Answer to the FAC, Defendant filed another demurrer on the same grounds to the same causes of achon that were previously overruled. Defendant previously demurred on the grounds of un...

Excerpt: ...efendant contends the entire Crosscomplaint is uncertain because the causes of action are devoid of the necessary "ultimate facts" as it pertains to their claims against and that it is impossible to know what conduct on Cross-Defendant's part the Crosscomplainant is alleging caused the alleged injuries. A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertaint...

Excerpt: ...s and unintelligible as pled. (Code Civ. Proc. S 430.10(f).) 1) COA No. 2 —Negligent Failure to Carry Out a Mandatory Duty Pursuant to Education Code S 44807 & 44808 This is a negligence per se COA as it is based upon two statutes. "The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of acton for negligence." (Turner v. Seterus, Inc. (2018) 27 C...

Excerpt: ...t or excuse for nonperformance, the defendant's breach and resulting damage." (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307). "If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference." (Ibid.) Alternatively, "[i]n an action based on a written contract, a plaintiff may plead th...

Excerpt: ...laint or crosscomplaint has been filed may object, by demurrer . to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction or answer.. of the subject of the cause of action alleged in the pleading. (b) The person who filed the pleading does not have the legal capacity to sue. (c) There is another action pending between the same parties on the same cause of acton. (d) There is a defect or misjoinder of parties....

Excerpt: ...s the fifth cause of achon for negligence, the seventh cause of action for imposition of equitable lien (Civil Code S 3543), and eighth cause of action for imposition of equitable lien (equitable subrogation). The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to each of the three challenged causes of action. Fifth Cause of Acton (Negligence): The elements of a negligence cause of action are: (1) duty; (2) breach; (3) proximate or legal cause of...

Excerpt: ... order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . (6) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a certain way. (Code Civ. Proc.,...

Excerpt: ...n of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a d...

Excerpt: ...trike under Anti-SLAPP is GRANTED. (See Evid. Code, S 452, subd. (c) [court may take judicial notice of "records of . .. any court of this state"].) Plaintiff Michelle Mathis' Request for Judicial Notice of Opposition to Special Motion to Strike Under Ant-SLAPP (C.C.P. S 425.16) is DENIED. Plaintiff fails to identify the attached documents or state the basis upon which they may be judicially notice. To the extent the documents are police reports ...

Excerpt: ... as a matter of law. (Code Civ. Proc., S 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) If the defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burden, however, the burden shifts to the plaintiff to produce evidence demonstrating th...

Excerpt: ...tiff has shown, the materials at issue are essential to prepare for now imminent depositions, among other things. Accordingly, the court grants the motion to the extent it seeks additional time to respond, but orders compliance by December 29, 2023, to allow time to review the documents in preparation for the depositions and otherwise proceed with the litigation. In the reply brief, Stamos improperly seeks additional forms of relief that were not...

Excerpt: ...ng Companies, Inc. ("SBC"), Bisher Aljazzar ("Aljazzar"), Deenna S. Elsherif ("Elsherif") (individually and as trustee of the Deenna Elsherif Living Trust etc.), and Stolac LP ("Stolac") (collectively the "Defendants"). Under C.C.P. S 437c(p)(1), on a motion for summary judgment or adjudication, a moving plaintiff has the initial burden of showing each element of the cause of action entitling the party to judgment thereon and that there is no def...

Excerpt: ...mplete, and verified responses to Plaintiff CareRx, LLC's Requests For Admission, Genuineness of Documents, Set One within 21 days of service of the notice of ruling. Defendant VNA of Orange County LLC is ORDERED to serve full, complete, and verified responses to Plaintiff CareRx, LLC's Requests For Admission, Genuineness of Documents, Set One within 21 days of service of the notice of ruling. Defendant Palomar Palliative & Hospice Care is ORDERE...

Excerpt: ... to relief under the discretionary provision of secton 473(b) for at least some of what is requested. 1) The June 15, 2023 Order Wilshire seeks to set aside the June 15, 2023 Order dismissing its cross-complaint. It contends it is entitled to relief based on "surprise" or "excusable neglect" because its former attorney, Ms. Kim, failed to inform Wilshire of the June 15, 2023 ex parte hearing, failed to appear at said hearing on Wilshire's behalf,...

Excerpt: ...n for such relief, along with a memorandum and a declaration containing facts sufficient to justify the sealing. (Cal. Rules of Court, Rule 2.551, subd. he motion must be served on all parties, and unless the court orders otherwise, a complete copy of the document must be served on all other parties that already possess copies, along with the redacted version. (Cal. Rules of Court, Rule 2.551, subd. (b)(2).) To grant a motion to seal, the court m...

Excerpt: ... Services LP's Further Responses to Plaintiff's Second Set of Requests for Admission is GRANTED in part and DENIED in part. Defendant Deloitte Services LP is ORDERED to serve full, complete, and verified responses to Plaintiff Judy P. Fisher's Second Set of Interrogatories, Special Interrogatories Numbers 46, 49, and 66-81 within 30 days of service of the notice of ruling. Defendant Deloitte Services LP is ORDERED to serve full, complete, and ver...

Excerpt: ...vacy exists as to a party's employment records. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-529.) However, privacy protections are not absolute, and courts must carefully balance the right of privacy against the need for discovery. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion t...

Excerpt: ...gotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294 (Clement).) "[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate." (Ibid.) The particular level of effort required in each case depends on the circumstances including the amount of discovery propounded, the time available to confer before the motion filing deadline, and the extent to which a party was c...

Excerpt: ...d a prior demand for arbitration under the agreement of the claims at issue. (Code Civ. Proc., S 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) The provisions of the written agreement to arbitrate and the paragraph that provides for arbitration must either be stated verbatim in the petition or attached thereto. (Cal. Rules of Court, Rule 3.1330.) If the moving party meets this burden, the burden shifts to the resisting party ...

Excerpt: ...ion concerns requests which sought documents "relating to how any money paid by Plaintiffs to YOU or CCC has been used, spent, or transferred" (RPD No. 13) or "relating to where any money paid by Plaintiffs to You or CCC has been held or located at any time after such money was paid by Plaintiffs" (RPD No. 14). (See Moton: 4:12-17; See also 93 of Hallett Declaration, Exhibits A and 8 thereto [capitalization alteredl.) Additionally, the motion con...

Excerpt: ...dice or the status of the case as a whole are unavailing. It is undisputed that Plaintiff Aiden Bravo is under the age of 14 and that this case is a wrongful death/personal injury case. The question is whether the minor plaintiff has a substantial interest in "the case as a whole." The court is unaware of case law that sets out any test or boundaries to determine whether the minor has a substantial interest in the case as a whole, leaving this as...

Excerpt: ... Valley Water District's ("District") objections to the Declaration of Stephen Johnson, and the Authority's objections to the Declarations of Timothy Parker and Charles Krieger as those declarations are not relevant to the Court's ruling. l. OVERVIEW This lawsuit and the related actions involve adjudication of various parties' rights to groundwater in the Indian Wells Valley Basin. Among the claims at issue in a number of the lawsuits is the vali...

Excerpt: ...Trustees of the Johns Living Trust, dated August 13, 2007, James R. Glidewell, Randy D. Bohart, Bonnie L. Bohart, and Joshua Merrell & Kimberly Merrell, Trustees of the Merrell Family Trust dated November 16, 2011 is SUSTAINED. The demurrer to the fourth cause of action for declaratory relief is OVERRULED based on the remaining controversies set forth in the second and third causes of action. The parties' unopposed requests for judicial notice ar...

Excerpt: ... property), debt, or duty held by the stakeholder that may give rise to double vexation. (See Code Civ. Proc., S 386, subd. (b) ["Any person, firm, corporation, association or other entity against whom double or multiple claims are made, or may be made, by two or more persons which are such that they may give rise to double or multiple liability, may bring an acton against the claimants to compel them to -nterplead and litigate their several clai...

Excerpt: ...s conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161.) For conduct to be outrageous for purposes of IIED, the conduct must ...

Excerpt: ...cases where the contract was fraudulently induced. (Erlich v. Menezes (1999) 21 Cal.4th 543, 552.) The Complaint sufficiently alleges Plaintiff was induced to enter into the Joint Venture Agreement. (Complaint, 15-16.) Fraud The demurrer to the fraud cause of achon is SUSTAINED because the Complaint fails to plead with particularity, by who, where, and when the misrepresentations were made to Plaintiff by Defendants. (Lazar v. Superior Court (Laz...

Excerpt: ...action for: 1. Violation of Labor Code SS 510 and 1198 (Unpaid Overtime); 2. Violation of Labor Code SS 226.7 and 512(a) (Unpaid Meal Period Premiums); 3. Violation of Labor Code S 226.7 (Unpaid Rest Period Premiums); 4. Violation of Labor Code SS 1194 and 1197 (Unpaid Minimum Wages); 5. Violation of Labor Code SS 201 and 202 (Final Wages Not Timely Paid); 6. Violation of Labor Code S 226(a) (Non-compliant Wage Statements); 7. Violation of Labor ...

Excerpt: ...het v. Galardi (2014) 229 Cal. App. 4th 1466, 1474 n.5. Plaintiff alleges he was falsely accused of violating masking policies at work when someone reported to plaintiff's employer that he refused to wear a mask. Plaintiff tried to correct that accusation, and later his employer put him under performance review. Plaintiff again tried to refute the false masking accusation, and then was fired. Plaintiff's 1st cause of action is for Wrongful Termin...

Excerpt: ...elling Place Anaheim (the "Church") and (2) Individual Defendants Alan Scott, Kathryn Scott, Jeremy Riddle, Kate Riddle, Gregory Scherer, Banning Leibscher, and Julian Adams are SUSTAINED. At the hearing, Plaintiffs should be prepared to explain how they believe further amending of the lawsuit will result in a viable cause of acton. EVIDENTIARY RULINGS The Court makes the following rulings on Defendants' requests for judicial notice: Exs. 1-4. GR...

Excerpt: ...job responsibilities, without reimbursement. This allegation satisfies the commonality requirement for class actions at the pleading stage. The court in Prince v. CLS Transportation, Inc. (2004) 118 Cal. App. 4th 1320, 1329, held that a demurrer to a class action complaint is improper where the plaintiff alleges institutional practices that affected all of the members of the potential class in the same manner, and it appears from the complaint th...

Excerpt: ...e that a defendant cannot reasonably respond." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) 1st & 2nd cause of action, breach of express warrantes and implied warranty of merchantability The complaint fails to state facts sufficient to constitute these causes of action, with the requisite particularity. (See Civ. Code, SS 1791.2 [express warranty], 1791.1 [implied warranty of merchantability], 1792 [impl...

Excerpt: ...on for Approval of PAGA Settlement is CONTINUED to February 23, 2024 at 1:30 p.m. in Department CX103 to give counsel an opportunity to address the issues identified below by the Court. As to the Settlement 1. Was the Motion and supporting papers served on the LWDA? A proof of service of the moving papers on the LWDA should be filed with the Court. 2. The definition of "Released Claims" should be revised. To be clear, the release should be limite...

Excerpt: ...ounsel could have sent the meet and confer letter more than five days prior to the moton deadline. However, the court considers the circumstances leading up to that meet and confer letter, defense counsel's early request for more time to meet and confer, and Plaintiffs counsel's refusal to extend time for a motion to compel. Given that Plaintiff stands on her responses here, the court finds that any further meet and confer effort would have been ...

Excerpt: ...of the above two cases pursuant to CCP S 1048(a) is GRANTED. All future filings in this litigation shall be filed under case no. 21-1186967, with the caption of all pleadings listing both cases. FACTUAL BACKGROUND These two cases arise from the construction of Plaintiff Kyle Reeves' home at 7210 West Oceanfront in Newport Beach. The basic underlying allegations are the same in both. Reeves submitted his construction plans to the City for design r...

Excerpt: ...Following a hearing on the issue of attorney's fees and costs, Judge Prager issued a final award on September 13, 2023. (Huston Decl [ROA 198] Decl. Ex. A.) Among other things, the Final Award states Plaintiffs sought, but were denied attorney's fees and costs associated with pre-arbitraton litigation of this action. (ld. at 2-4.) This ruling was based on the Arbitrator's finding that the attorney's fee provision in the applicable agreement was n...

Excerpt: ...lass Action and PAGA Settlement, and the Class Notice. UPCOMING EVENTS: None. FACTS/OVERVIEW: This is a consolidated putative wage-and-hour class achon and PAGA matter. On April 2, 2021, Plaintiff Armando Diaz-Garcia (Diaz-Garcia) filed a putative Class Acton Complaint against Defendant Awesome Products, Inc. (Defendant). ROA 2. On May 26, 2021, the First Amended Class Action Complaint (FAC) was filed. ROA 8. The FAC alleges: 1. Failure to pay mi...

Excerpt: ...ense"], 31 ["additional costs and salary"].) A plaintiff or cross-complainant cannot "establish a prima facie entitlement to summary judgment without showing both the fact and the amount of damages." (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1105, original emphasis.) The party seeking summary judgment "cannot get judgment 'in an amount of damages to be determined later.'" (Paramount Petroleum Corp. v. Superior...

Excerpt: ...f's PAGA claim and stay the representative component pending arbitration. The motion is GRANTED. An arbitration review conference will take place on July 29, 2024 at 8:30 a.m. EVIDENTIARY MATTERS OGC has filed a request for judicial notice. (ROA 55.) Because the document for which judicial notce is sought was filed in this action, the request is DENIED AS MOOT. "It is not necessary to ask the court to take judicial notice of materials previously ...

Excerpt: ... Good cause must be shown. (Code Civ. Proc., SS 2032.310, 2032.320.) As noted by a well-regarded practice guide, under the wording of Code of Civil Procedure section 2032.220, subdivision (a), when there are several defendants, "a plaintiff arguably may be compelled to submit to as many examinations as there are codefendants." (Weil & Brown, Cal. Practce Guide: Civil Procedure Before Trial (The Rutter Group 2023) 8:1522.) "This may be a 'glitch' ...

Excerpt: ...lass action and PAGA matter. On February 21, 2023, Plaintiff Kiyoko Dodson, on behalf of herself and others similarly situated ("Plaintiff"), filed a Complaint against Defendant LeafFilter North, LLC ("Defendant") alleging the following seven causes of achon (ROA 2): 1. Declaratory Relief; 2. Failure to Pay Overtime Wages for Daily Overtime Worked in Violation of Labor Code sections 510 and 1194; 3. Failure to Authorize or Permit Meal Periods in ...

Excerpt: ...ionally lodged under seal at ROA 247, 248. Motion to Seal Factors A court may order a record to be filed under seal only if it expressly finds facts establishing: 1) There exists an overriding interest that overcomes the right of public access to the record; 2) The overriding interest supports sealing the record; 3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4) The proposed sealin...

Excerpt: ...l service of a summons on such party." (Code Civ. Proc., S 410.50, subd. (a).) " ' "A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service." [Citation.]' [Citations.]" (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) A defendant appears in an action when the defendant, among other things, answers. (Code Civ. Proc., S 1014.) Furthermore, "...

Excerpt: .... Rules of Ct., rule 2.550(c) ["Unless confidentiality is required by law, court records are presumed to be open." l.) Although that right is not absolute, the moving party has the burden to meet the requirements set forth in California Rules of Court 2.550-2.551. The motion or application "must" be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing." (Cal. Rules of Court, rule 2.551(b)(1).) To grant ...

Excerpt: ...Clemente ("City") filed a Complaint in Eminent Domain against Defendants Emergency Shelter Coalition and Rancho San Clemente Business Park Community Association (collectively, "Defendants"). (ROA 2). A lis pendens was filed on July 31, 2020. (ROA 4). The City sought to acquire approximately 10 acres of undeveloped land along Avenida Pico adjacent to the Rancho San Clemente Business Park ("the Parcel"). The Parcel lies directly adjacent to the 287...

Excerpt: ...to a blanket stay for an undetermined period of time, particularly since, as Defendant himself admits, no discovery has been propounded on him. (Declaration of Catherine A. Quaidoo, 7.) (See Alpha Media Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1131 [the Constitution does not ordinarily require a stay of civil proceedings pending the outcome of criminal proceedings]; see Victaulic Co. v. American Home Assurance Co. (2018) 20 Cal.App.5th...

Excerpt: ...uffers from a number of disabilities including mental." Under Code of Civil Procedure section 372, subdivision (a)(l), "[wlhen a person who lacks legal capacity to make decisions, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case." '"Incapacity is merely a legal disability, such as infancy or ...