Excerpt: ...ims are dismissed without prejudice. The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. Little v. Pullman (2013) 219 Cal.App.4th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of prov-ng by a preponderanc...

Excerpt: ...d/or adjudication, Defendant presents these three issues: 1. Plaintiffs first, second, third, fourth and thirteenth causes of achon on agreement #1, cannot be collected against defendant Racheal Soriano as plaintiff cannot establish that defendant Racheal Soriano is responsible for this debt under an alter ego theory of liability, as the debt belongs to the corporation, and there is no evidence of fraud or other existence or incorporation of the ...

Excerpt: ...ROA 555] MOTION #7 of 9: Compel Further Responses to Special Interrogatories, Set Two [ROA 547, 559] MOTION #8 of 9: Compel Further Responses to Requests for Admission, Set Three [ROA 542, 546] MOTION #9 of 9: Compel Further Responses to Form Interrogatories, set Three [ROA 561] Plaintiff Charles S. Mosesian's ("Plaintiff") Motion to Compel Responses to his Demand for Production of Documents, Set One is GRAN ED. (See Code Civ. SS 2031.3Cü) Defen...

Excerpt: ...refers only to the "proposed settlement." Plaintiff must file with the court a proof of service identifying the specific documents served on the LWDA, when plaintiff served the documents, and how service was effected. As to the settlement: 2. The Jusuf Declaration (ROA 454, at 'l 2) states the settlement is with defendant Capital Logistics & Warehousing Group, Inc. The settlement agreement (Jusuf Decl. Ex. 1, at 1:2-3) states the settlement is wi...

Excerpt: ...or violation of this certification. (Code Civ. Proc„ S 128.7; see Murphy v. Yale Materials Handling Corp. (1997) 54 Cal.App.4th 619, 623.) The purpose of the statute is "to check abuses in the filing of pleadings, petitions, written notices of motons or similar papers." (Musaelian v. Adams 45 Cal.4th 512, 514.) Whether the certificate is violated is tested objectivel',— i.e., whether the paper filed is frivolous, legally unreasonable or witho...

Excerpt: ...LD and BETTY J. LITTLEFIELD, as Trustees of the Richard W and Betty J. Littlefield Trust of 1996. Procedural History of Case: On 12/1/21 Plaintiffs filed this achon for declaratory relief seeking a declaration that the Page 6 of 17 forged promissory note and deed of trust were valid and enforceable against Defendants. On 2/8/22, Defendants answered and filed a cross-complaint for quiet title and cancellation of the forged promissory note and deed...

Excerpt: ...ducate for failure to state facts suffcient to state a cause of action. Rossmoor contends that it was not until more than 20 years after the alleged abuse occurred, and that because it did not exist or have employees in 1980, Plaintiff has failed to state any claim against it and the demurrer should be sustained without leave to amend. Plaintiff contends that Rossmoor existed at the time of the abuse; that it was established in 1962 at 4161 Green...

Excerpt: ...tely, for each COA at issue. And under C.C.P. S 430.50, a demurrer shall distinctly specify the grounds upon which any of the objections to the complaint are taken. Here, there is no separate demurrer, and the Notice (at ROA 46) is directed only to COAS 3-5. Accordingly, although the supporting authorities (at ROA 44) also assert arguments about other COAs, and as to the entre action as directed to Mr. Webb, as those arguments were not properly n...

Excerpt: ...eempts claims based on the same nucleus of facts as trade secret misappropriation. (Coast Hematology-oncology Associates Medical Group, Inc. v. Long Beach Memorial Medical center (2020) 58 cal.App.5th 748, 769; Arthur J. Gallagher & co. v. Tarantino (N.D. cal. 2020) 498 F.Supp.3d 1155, 1174.) "To survive preemption, [Plaintiff's) claims must 'allege wrongdoing that is materially distinct from the wrongdoing alleged in a CUTSA claim.' [Citation.]"...

Excerpt: ...ction of Documents, Set One, and for an Order compelling the Defendants to serve verifications for the subject discovery. The two discovery motions are GRANTED, as set forth herein. MOTION TO BE RELIEVED It is initially noted that while counsel filed a single motion, since this is a motion as to three parties, counsel should have filed three separate motions. Without three separate motions, it is not clear which clients are being referred to in t...

Excerpt: ...4th 772, 777; see Marzec v. Public Employees' Retirement System (2015) 236 Cal.App.4th 889, 900 '[blecause a moton for judgment on the pleadings is the functional equivalent of a general demurrer, the same rules apply' Alter Ego Moving Defendants contend the first through fourth causes of action are barred because Plaintiff cannot establish that Moving Defendants are the alter egos of Defendant S. David Kozich. Moving Defendants argue that the FA...

Excerpt: ...rrer Plaintiff did not oppose the demurrer. Failure to oppose the demurrer may be construed as having abandoned the claims. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Hotel Company's demurrer is sustained with 15 days leave to amend. Motion to Strike The court notes Hotel Company filed the motion to strike twice, the first filing on 5/31/2023 (ROA No. 30) and the second filing on 9/7/2023 (ROA No. 39). The two motons appear ...

Excerpt: ... 430.41. (Code Civ. Proc. S 430.41.) Here, MP's counsel "attempted" to satisfy this requirement but was unsuccessful. (Shugart Dec.) It is not clear what this means. Nevertheless, the court will address the merits of the demurrer and motion to strike. General Principles on Demurrer A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) T...

Excerpt: ...a Rules of Court, Rule 2.112. Plaintiff did not file an Opposition. A special demurrer for uncertainty is "disfavored." (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) Nevertheless, a demurrer for uncertainty may be sustained "where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her." (We...

Excerpt: ...or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer." (Code Civ. Proc. S 473(a)(1).) "The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this c...

Excerpt: ...ruit. Plaintiff alleges that it entered into a residential listing agreement with Defendant for the sale of her residential property for an asking price of $8,388,000. The listing period in the original agreement was March 3, 2022, through June 2, 2022. Pursuant to Secton 3.A(3) of the listing agreement, Defendant promised to pay Plaintiff commission if, among other things, the property was "withdrawn from sale, conveyed, leased, rented, otherwis...

Excerpt: ...ty is required to provide discovery is a deposition subpoena." (ld„ subd. (b).) Production of documents by a nonparty deponent requires the service on the deponent of a deposition subpoena. (S 2025.280, subd. (b).) If the deponent is a natural person, service of a deposition subpoena is made by personal delivery of a copy of to the deponent. (CCP S 2020.220, subd. (b)(l).) If the deponent is an organization, service is made by personal delivery...

Excerpt: ...the request to strike is DENIED, and the request to seal is GRANTED. A. Statement of Law "Unless confidentiality is required by law, court records are presumed to be open." (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.) "A record must not be filed under seal without a court order. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties."...

Excerpt: ...t does. Three, does the FAA apply? Yes. Four, is the agreement unconscionable, either procedurally or substantively? No. And five, a variant of the question concerning unconscionability, does the agreement provide for a neutral arbitrator and adequate discovery? Yes. Sufficiency of evidence concerning agreement "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a pa...

Excerpt: ...y be implied or inferred from those expressly alleged in the complaint. [Citations.)" (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 58 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. Golden Empire Transportation ...

Excerpt: ...pute, 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 purpose of determining its effect, its allegations must be ...

Excerpt: ...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. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provi...

Excerpt: ...s 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 purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the ...

Excerpt: ...ion, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto... ." Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, (Aguilar), states, "Second, and generally, the party moving f...

Excerpt: ...n part, "(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Secton 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described i...

Excerpt: ...the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: ['ll (a) The right to compel arbitration has been waived by the petitioner; or [91 (b) Grounds exist for the rescission of the agreement." Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219, provides, "In Rosenthal v. Great Western Fin. Securities corp. (1996) 14 cal.4th 394, 58 cal.Rptr.2d 875, 926 P.2d 106...

Excerpt: ...o mistake, inadvertence, and/or surprise, and due to no prejudice be suffered by plaintiff from the relief sought." (Motion at 3:4-7.) CCP 5473(b) states in pertinent part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this reli...

Excerpt: ...O") and writ of attachment by filing an application with the court in which the action is brought. Code Civ. Proc. S 484.010. In the discretion of the court, the amount to be secured by the attachment may include estimated costs and allowable attornevs fees. Code Civ. Proc. SS 482.110 & 483.015. The court may only issue a RTAO if it finds the following: (1) The claim upon which the attachment is based is one upon which an attachment may be issued...

Excerpt: ...s discretion will therefore not consider the very late filed opposition. (CRC Rule 3.1300(d).) As to the merits of the demurrer, Defendant argues Plaintiff's causes of action ("COA") Nos. 3 and 5 fail to state sufficient facts to constitute a COA against Defendant. (Code Civ. Proc. S 430.10(e).) The court agrees. 1) COA No. 3 — Violation of Civ. Code S 1793.2(a)(3) "(a) Every manufacturer of consumer goods sold in this state and for which the m...

Excerpt: ...ty or was regarded as suffering from a disability; (2) he could perform the essential duties of the job with or without reasonable accommodations; and (3) he was subjected to an adverse employment action because of the disability or perceived disability. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.) Because Plaintiff's claims are asserted against a public entity and are based on FEHA, a statutory scheme, his causes of achon must ...

Excerpt: ... serviced by this moving party. (FAC, 2, 14; Ex. B to FAC [deed of trust securing HELOC]; Holland v. Morse Diesel International (2001) 86 Cal.App.4th 1443, 1447 [facts appearing in exhibits attached to the complaint are given precedence over inconsistent allegations in the complaint]; 12 C.F.R. S 1026.41, subd. (a)(l) ["This section applies to a closed-end consumer credit transaction secured by a dwelling" l; 12 C.F.R. S 1025.2, subd. (a)(10) [de...

Excerpt: ...nds for demurrer].) The third and fourth causes of action for fraud/fraudulent concealment and negligent misrepresentation are not "thinly disguised claim[sl for breach of contract and bad faith," or duplicative of the same. They assert different legal theories of liability. Recovery for improper claims practices may be based on torts other than the bad faith breach of the implied covenant, such as, e.g., fraud or negligent misrepresentation. (Se...

Excerpt: ...cts supporting the statutory elements of the violation." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) aut here, COA 9 essentially just recites the elements of the statute without identifying what GM allegedly did or did not state in any advertising or publication which could trigger liability under Bus. & Prof. Code 517531. The claim thus fails as pled. For COA 10, a cause of action for conversion requires allegations of...

Excerpt: ...revails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action." Civil Code S 1794(d). "'The plain wording of the statute requires the trial cou...

Excerpt: ...such, should plaintiffs/DlG indicate the reply was not served on them, then the court will contnue the hearing to permit time for plaintffs/DlG to review the reply and prepare for the hearing. Andersson brings her Motion pursuant to Civ. Proc. Code SS 426.50 and 426.10. "A motion to file a cross-complaint [under Civ. Proc. Code S 426.50] at any time during the course of the action must be granted unless bad faith of the moving party is demonstrat...

Excerpt: ...ntiff's 2nd and 3rd causes of action for retaliation and failure to prevent discrimination/ harassment/ retaliation are based, in part, on Defendant DANNY's conduct and Defendants MANPOWER and B. BRAUN's alleged retaliation, failure to prevent retaliation, and termination of Plaintiff for reporting and complaining about DANNY's behavior towards Plaintiff. See Compl. 43-45 [for reporting Defendants' discriminatory and harassing conduct towards her...

Excerpt: ...rocedure S 2023.010(g) defines the misuse of discovery process to include "[dlisobeying a court order to provide discovery." Code of Civil Procedure S 2023.030(d) grants the Court authority to impose terminating sanctions for misuse of discovery process by striking out pleadings. The Court may impose a monetary, issue, evidence, or terminating sancton against any party engaging in misuse of the discovery process. Code Civ. Proc. S 2023.030. On Au...

Excerpt: ...nd James Park are GRANTED. 18 Defendants' objections to the Declaration of Hyuck Kim are overruled. Legal Standard On a motion to quash for lack of personal jurisdiction, the plaintiff bears the burden of establishing by a preponderance of the evidence that the defendant has such "minimum contacts" with the forum state such that being subjected to its jurisdiction will not offend traditional notions of fair play. Epic Communications, Inc. v. Rich...

Excerpt: ...for Damages is GRANTED in part and DENIED in part. Defendant has agreed to withdraw its Second, Fourth, Twelfth, Thirteenth, Fifteenth, Twentieth, and Twenty-Third affrmative defenses. Therefore, 30 the Motion is GRANTED as to Issue numbers One through Six and Eight which address these affirmative defenses. The only remaining affirmative defense is the Twenty -First affirmative defense (Issue Seven). Pursuant to Code of Civil Procedure section 43...

Excerpt: ...White Oaks, LLC ("White Oaks Landlord") move this Court for Summary Judgment or, in the alternative, Summary Adjudication. For the reasons stated herein, the motion is GRANTED. l. Burdens on Summary Judgment/Adjudicaton As a plaintiff moving for summary judgment/adjudicaton, plaintiff Simon has the burden of producing admissible evidence on each element of the cause of action entitling it to judgment (CCP It is not plaintiff's burden to disprove ...

Excerpt: ...us XM Radio Inc. (9th Cir. 2014) 771 F. 3d 559, 565.) In determining the validity or "the rights of parties to enforce an arbitration agreement within the FDA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 235.) "The party seeking arbitration bears the burden of proving the existence of an arb...

Excerpt: ...o the Complaint as Exhibit A. It is between Plaintiff, as the buyer, and Life Cycle, as the seller. Paragraph 31.A of that agreement provides, in relevant part: The Parties agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transacton before resorting to arbitration or court action through the C.A.R. Consumer Mediation Center (www.consumermediaton.org) or through any other mediation provider or serv...

Excerpt: ...r both state and federal law." (Tiri v. Lucky Chances, Inc. (2014) 226 Cal. App. 4th 231, 240.) "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense." (Engalla v. Permanente Medical Group, Inc. (1997) 15 cal.4th 951, 972; Green Tree Financial ...

Excerpt: ...f record, jointly and severally. Plaintiff also moves for an order compelling the deposition of Defense Medical Examination Physician, Philip K. Stenquist, M.D„ and awarding a monetary sanction in the amount of $2,500 against Defendants, Wurth Louis and Company and Cesar Salas and their attorneys of record, jointly and severally. The Motions are DENIED in their entirety. Defendants' objection based on Code of Civil Procedure section 2034.410 ap...

Excerpt: ...Plaintiff has failed to show that it did not adequately comport with C.C.P. S 2015.5. On the merits, for Form Interrogatory ("FROG") Nos. 1.1, 15.1, and 17.1 as directed to RFA 14, each response is incomplete and lacking in adequate specificity. The Motion is therefore GRANTED for FROG Nos. 1.1, 15.1, and 17.1 as directed to RFA 14. The Motion is DENIED as to FROG 2.8, as Plaintiff has not shown why the response is insufficient given the context ...

Excerpt: ...Cross-complainants John and Susan Belenardo's motion for summary adjudication as to the 5th and 10th causes of action of the Third Amended Complaint of Lora Bales and Dean Bales is GRANTED as to the 5th cause of action, and DENIED as to the 10th cause of action; and DENIED as to the 2nd cause of action of the First Amended Cross-complaint ("FACC"). A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a prepon...

Excerpt: ...amily 1998 Revocable Trust, and Defendants Brenda Mandelbaum and Uri Mandelbaum, as trustees of the Mandelbaum Trust dated November 1, 1988. 2. Defendant SNP Pharmacy, LLC received no consideration for transferring all its interests in the Batavia Property to Defendants Bentzion Mandelbaum and Michelle Mandelbaum, as trustees of the Mandelbaum Family 1998 Revocable Trust, and Defendants Brenda Mandelbaum and Uri Mandelbaum, as trustees of the Man...

Excerpt: ... Superstores California (2018) 19 Cal.App.5th 1234, 1261 [UCL claims must be stated with "reasonable particularity"]; Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 ["simply parroting" statutory language is insufficient]; see also Compl. "1 53-54 [conclusory allegations of alleged false advertisementsl.) In addition, this cause of action is time-barred. (See Bus. & Prof. Code, S 17208 [four-year limitation period); s...

Excerpt: ...uncertainty. (Code Civ. Proc„ S 430.10(e), (f).) A prior demur by Shaw to the same causes of action (but in the Second Amended Complaint) was sustained with leave to amend. (See 9/1/23 Minute Order.) The TAC alleges the follow-ng: on 3/28/21, Decedent ERNEST ADAMS was struck and killed by Defendant ALEXIS GARCIA-LOPEZ ("Garcia- Lopez") while Garcia-Lopez was under the influence of alcohol and driving a black SUV Northbound on Irvine Avenue. Gar...

Excerpt: ...ion; and seek an order staying the underlying action pending the resolution of another related representative action. REQUEST FOR JUDICIAL NOTICE: (ROA 31) Defendant asks this Court to take judicial notice of the operative Complaint in Navarro v. Floor and Decor Outlets of America, Inc., Santa Clara County Superior Court Case No. 22CV403852, filed September 30, 2022. In the Demurrer, Defendant contends Navarro asserts the same PAGA cause of actio...

Excerpt: ...n the part of the respondent, and (2) a clear, present and beneficial right on the part of the petitioner to the performance of that duty"].) Petitioner's request for judicial notice is GRANTED. (Evid. Code, S 452, subds. (a), (b).) The parties only address whether or not Petitioner is entitled to business tax licenses for the properties addressed in the Petition, given the parties' dispute as to the use of the properties. However, Respondent Cit...

Excerpt: ...Deutsche Bank National Trust Company (2015) 235 Cal.App.4th 394, 402 (Miles) [plaintiff may properly plead the legal effect of a contract, rather than setting forth its precise language]; Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [ultimate fact pleading]; see also Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [any "ambiguities can be clarified under modern disc...

Excerpt: ...n the Act, neglect refers not to the substandard performance of medical services but, rather, to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. Thus, the statutory definition of neglect speaks not of the undertaking of medical services, but of the failure to provide medical care. Notably, the other f...

Excerpt: ...CL claims must be stated with "reasonable particularity"]; Hawkins v. TACA International Airlines, S.A. (2014) 223 Cal.App.4th 456, 478 ["simply parroting" statutory language is insufficient]; see also Compl. 53-54 [conclusory allegations of alleged false advertisements].) On the other hand, the complaint adequately alleges that plaintiff "lost money or property," giving her standing and a basis for restitution. (Bus. & Prof. Code S 17204; accord...

Excerpt: ...for anonymity should be granted only if the court finds that an overriding interest will likely be prejudiced without use of a pseudonym, and that it is not feasible to protect the interest with less impact on the constitutional right of access. In deciding the issue the court must bear in mind the critical importance of the public's right to access judicial proceedings. Outside of cases where anonymity is expressly permitted by statute, litigati...

Excerpt: ...a redline showing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. The table of contents indicates 1.18 contains the definition for "Gross Settlement Amount," but the Settlement omits that paragraph. 2. Please provide 60 days, rather than 45, for opt-outs, objections, and workweek disputes. (Agr. 1.11, 6.1.) 3. Section 1.33 regarding "Released PAGA Claims" must be limited to those specific Labor Code violat...

Excerpt: ...ormed counsel: "No appearance is necessary if the Request for Dismissal is filed five (5) court days prior to hearing, otherwise counsel to appear. [q] If there is no appearance at the Order to Show Cause hearing, the court may dismiss this case without any further notice to parties." (2/27/2023 Minute Order.) The parties waived notce. (2/27/2023 Minute Order.) On May 5, 2023, Plaintiffs' counsel (Chong Roh) appeared at the order to show cause he...

Excerpt: ... on Objection Nos. 1—3 to Plaintiff's evidence because the Court does not deem such evidence material to its disposition of the motion under CCP S437c(q). As to Objection Nos. 4—5, the objections are overruled as the evidence is not hearsay since it is not offered for the truth, but to the show Plaintiff's state of mind. II. Plaintiff's Objections to (1) Defendant's Reply Separate Statement (ROA 174); (2) Supplemental Avila Declaration (ROA 1...

Excerpt: ...22. (Code Civ. Proc., SS 2030.260, 1013(a).) To date, Plaintiff has not served responses and indicated he threw the discovery requests into the trash. (Arjang Decl„ 5-6.) Plaintiff's Opposition consists of 20 pages in violation of California Rules of Court, rule 3.1113(d). The court has considered only the first 15 pages. Plaintiff is cautioned he must comply with all applicable statutes and rules. The court offers a self-help desk on the first...

Excerpt: ...rial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions." The summary procedures of an unlawful detainer action apply in routine cases in which the tenant has failed to pay rent, not a case involving dispute over title. (ld. at pp. 387-390.) Here, Plaintiff and Defendant each assert ownership of the property at issue. ...

Excerpt: ...; and (3) the court's authority to determine arbitrability outside of the context of a motion to compel arbitration or a moton to confirm or vacate an arbitration award. The court also notes the following: "The contractual right to compel arbitration is not selfexecuting: the party asserting its right may do so by petition or affirmative defense in the trial court and by seeking a stay of judicial proceedings." (Williams v. West Coast Hospitals, ...

Excerpt: ...ce Ms. Christopher has no personal knowledge or foundation to state what was received by Defendants. 2. Factual Background and Conclusions On December 9, 2022, the Court granted Defendant's moton to compel arbitration of the individual portion of this PAGA case and staying the representative portion until completion of the arbitration. (ROA 119) Thereafter, Plaintiff initiated and served a Demand for Arbitration with AAA in January 2023. On Janua...

Excerpt: ...Further Responses from Defendant MICHAEL CAO to Special Interrogatories (Set One). Plaintiff moves to compel further responses to Special Interrogatories Nos. 5, 5, 8, and 9 on the ground that any objections have been waived and the responses at issue are evasive and non-responsive. While this moton was pending, Defendant Cao served supplemental responses to the discovery at issue. The court finds the supplemental responses to Special Rog Nos. 5,...

Excerpt: ...urden of showng all elements necessary to support the issuance of a preliminary injunction. (O'Connell v. Superior Court (2006), 141 Cal.App.4th 1452, 1481.) Plaintiff shows the following: On 9/28/23, Defendant Lakeside notified its members that it would be voting on a set of Architectural Standards. (Chaudhary Decl., '1 15.) Plaintiff submitted an architectural application on 11/2/23. (Id„ 25.) On 11/3/23, Defendant sent a notice to members re...

Excerpt: ...finds is subject to Labor Code section 229. "On a petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if determines that an agreement to arbitrate the controversy exists..." (Code of Civ. Proc., 51281.2.) "Because the exist...

Excerpt: ... to an undivided 50% interest ("The Tiltons") remove an unapproved fence located at 713 Avenida Azor, San Clemente, California, 92673 (the "Property"). The request for preliminary injunction is denied. Legal Standard An injunction may be granted where it appears by the complaint that the plaintiff is entitled to the relief demanded and the relief consists in restraining the commission or contnuance of the act complained of. (See Code Civ. Proc., ...

Excerpt: ...: plaintiff/Cross-Defendant Martin Knudsen seeks an order compelling Defendant/cross-complainant Solnsoft, LLC to produce further responses and documents to the Amended Requests for Production of Documents, Set One and Set Four, and moves for an order imposing monetary sanctions. FACTS/OVERVIEW: This is a dispute among the owners of a closely-held LLC about how much money is owed to Plaintiff Martin C. Knudsen ("Knudsen") for his ownership intere...

Excerpt: ...er burden of showing there is no defense to a cause of action if they have proved each element of that cause of action. (ld., S 437c(p)(1).) The burden then shifts to the defendant to raise a triable issue of one or more material facts as to the cause of action or a defense thereto by setting forth specific facts showing that a triable issue of material fact exists. (Ibid.) Plaintiff's undisputed evidence establishes that on December 14, 2017, Ha...

Excerpt: ...e initial Complaint. "A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint...on grounds that could have been raised by demurrer to the earlier version of the complaint[.]" (Code Civ. Proc., S 430.41, subd. Even if the demurrer was properly raised, it fails on the merits as discussed below. With respect to the first cause o...

Excerpt: ...than the offer at trial. (ROA No. 502; Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450, 453, 458 [subject 998 offer was valid, reasonable, and made in good faith; plaintiff failed to do better than the offer at triall.) Plaintiff can therefore recover only his preoffer attorney fees. "[A] valid and reasonable section 998 offer by the seller, where the buyer recovers less than the offer, precludes recovery by the buyer of postoffer at...

Excerpt: ...cles in California of the same year, make and model as the subject vehicle are relevant because they may be probative of whether Defendant knew of the defects impacting Plaintiffs vehicle. Further, documents related to Defendant's policy and procedures used to evaluate customer requests for repurchase or replacement under the Song Beverly Act would be relevant to Defendant's good faith compliance with said Act. In addition, documents regarding di...

Excerpt: ... Court, rule 3.1346 [except under circumstances not applicable here, personal service required].) While defendants' proof of service claims that Sybilla Green Dorros (hereinafter, Ms. Green Dorros) was personally served, it states she was so served "via First Legal" and not by the declarant. This lacks personal knowledge and is insufficient to establish service. (See Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1215.) The messenger w...

Excerpt: ...or transferring Plaintiff based on the email chain produced in Exhibit D. In opposition, Defendant argues that the Motion is procedurally deficient and Newman is an apex witness not subject to deposition pursuant to Page 10 of 28 the holding in Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282. "[W]e hold that when a plaintiff seeks to depose a corporate president or other official at the highest level of corporate management, ...

Excerpt: ...ories, Set Two ("SPROG 2"), Nos. 71, 72, 75, 76, 79, 80, 83- 87 within 10 days of the hearing on the motion, and imposing $1,635 against Plaintiff. Pacific Expressway contends that Plaintiff served untimely responses to FROG 2 and SPROG 2 such that objections are waived, and that Plaintiff failed to answer the entirety of FROG 2, No. 17.1. Pacific Expressway also contends that it sent a meet and confer to Plaintiff's counsel before filing the ins...

Excerpt: ...of default); Page 12 of 28 4. Paragraph 2.h in its entirety (re willful and fraudulent actions); 5. Paragraph 2.i. in fts entirety (re willful and fraudulent actions); 5. Paragraph 2.3. in its entirety (regarding alleged concealment of Right to Redemption); 7. Paragraph 2.k. in its entirety (regarding redemption period); 8. Paragraph 2.1. in its entirety (regarding willful and fraudulent actions); 9. Paragraph 2.m. in its entirety (re redemption ...

Excerpt: ...usiness Relationships and Prospective Business Relationships The elements of intentional interference with prospective economic advantage are "(1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruptio...

Excerpt: ...RANTS Defendant's requests for judicial notice. Standard for Demurrer In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal 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...

Excerpt: ...ofs of service do not show that the demurrer, moton to strike, supporting papers, and replies were properly served on Plaintiff. Defendant's proof of service states the demurrer, motion to strike, and supporting papers were served by "express delivery service." It is unclear what "express delivery service" means. The description states it would be deposited in the ordinary course of business, but does not state where it is deposited (i.e. in an o...

Excerpt: ...in aid of her claims for medical battery, assault and medical malpractice. Plaintiff has already been given an opportunity to amend, and she has not explained how further opportunity to amend could cure the deficiencies. Thus, no leave to amend is warranted with respect to these non-cognizable theories of relief. Additionally, Plaintiff's claim for negligence, without leave to amend, because it wholly overlaps with her claim for medical malpracti...

Excerpt: ...f action for fraud-fraudulent inducement- concealment is governed by the 3-year statute of limitations in CCP section 338, subdivision (d). "In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred." (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.) Plainti...

Excerpt: ...allege a breach because the Assignment Agreement requires Defendant "to provide either marketable or insurable title," and the FAC "does not allege that [Defendant) failed to provide insurable title, and in fact plaintiff is represented by the very insurance company who provided title insurance to Plaintiff." Defendant further contends Plaintiff did not "perform a condition precedent to receive the benefits of the alleged warranty," because the F...

Excerpt: ...ixth cause of action for unjust enrichment is OVERRULED as to Defendant Tabatabai and SUSTAINED as to the other Defendants. The demurrer to the seventh cause of achon is SUSTAINED to the extent it seeks declaratory relief, and OVERRULED to the extent seeks an accounting. In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only t...

Excerpt: ...opposition. After several rounds of meeting and conferring and supplemental responses, Defendant's final response to SRFP no. 2 is assertion of the attorney-client privilege and attorney work product protection, along with the statement that such document are not discoverable if intended to be used solely for impeachment. [ld.; id. Exs. 8-1.] Defendant also later produced a privilege log in response to other discovery with related requests. The l...

Excerpt: ...or provision is 'to conserve judicial resources otherwise spent adjudicating a sanctions motion by affording a prescribed period of time during which a party may correct or withdraw a frivolous or improper pleading or moton without any penalty. [Citation.] If the merits of the objectionable document are resolved by the court prior to the expiration of the safe harbor period, there is nothing left to correct or withdraw, thereby undermining the re...

Excerpt: ...issue of material fact ... (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (ld. at p. 851.) A plaintiff moving for summary judgment satisfies his or her initial burden by showing that each element of the cause of acton in question has been "proved," and hence that there is no defense thereto. (ld., at p. 850.) A party cannot establi...

Excerpt: ...fied further responses, and produce responsive documents, within 30 days. The Court DENIES Plaintiff's requests for judicial notice, and it deems Defendant's objections to the requests for judicial notice as being MOOT. Form Interrogatory nos. 16.2-16.5 In his August 10, 2023 amended response to Form Interrogatory nos. 16.2 through 16.5, Defendant responded as follows: This interrogatory calls for information which seeks defendant's opinion or co...

Excerpt: ...'s "purchase or condition of this vehicle" or "any resulting transacton or relationship (including any such relationship with third parties who do not sign this contract)". (RISC, Exhibit 2 to Ameripour Decl., page 6.) But this is taken out of context. In the RISC, it says that the arbitration agreement is between Plaintiff and "us" identified as the Seller-creditor. The RISC further says that any dispute with the Seller even if that arise out of...

Excerpt: ...s particular issue, as information obtained from sealed and confidential discovery materials, and which are later incorporated into Plaintiff's Answer to the Second Amended Cross-complaint, are not submitted "as a basis for adjudication," and thus do not become accessible to the public, simply by virtue of it becoming a part of the court file. (Mercury, supra, 158 Cal.App.4th at pp. 90, 103.) The Mercury court also held that the rules 2.550 and 2...

Excerpt: ...ty is certifying that, to the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances that all of the followng conditions are met: (1) it is not being presented primarily for an improper purpose; (2) the claims, defenses, or other legal contentions are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment o...

Excerpt: ...petition is GRANTED in part and DENIED in part. The Arbitration Agreement The Arbitration Agreement at issue provides in pertinent part: It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered or not rendered, will be determined by submission to arbitration as prov-ded by the Fede...

Excerpt: ...., at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc. ("CCP"), S 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff's complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381—82 [pleadings serve...

Excerpt: ...y separate statement as the Code does not authorize a reply separate statement. (Code Civ. Proc., S 437c(b)(1), (b)(3), and (b)(4); see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 ["There is no provision in the statute for this [a reply separate statement].) Similarly, the Court declines to consider all new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal...

Excerpt: ...mendments; [9] (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and [91 (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. ['ll (b) Supporting declaration A separate declaration must accompany the motion...

Excerpt: ..."A defendant ... has met his or her burden of showing that a cause of action has no merit that 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 that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of acti...

Excerpt: ...otice to all parties. [q] (b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits. [q] (c) The court may impose conditions on the granting of the motion that are just, including, but not limited...

Excerpt: .... 167, is GRANTED to the extent it requests that the court quash the service of summons. Code of Civil Procedure section 410.10, states in part, "A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States." Code of Civil Procedure section 418.10 states in part, "(a) A defendant, on or before the last day of his or her time to plead or within any further time that the c...

Excerpt: ...e examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. [q] (2) The examinaton is conducted at a location within 75 miles of the residence of the examinee. [q] (b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first. (c) A demand under subdivision (a) shall specify the time, place, manne...

Excerpt: ... part as set forth below. Code of Civil Procedure section 2031.300 states in part, "If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: . (b) The party making the demand may move for an order compelling response to the demand." On 10-27-22, Plaintiff served Defendant (Sediegh Fakoor) with "Plaintiff's Request for Production of Documents to D...

Excerpt: ...ior counsel. Thus the entire answer should be stricken." (Motion; 3:17-20.) Code of Civil Procedure section 436 states, "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [91 (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [9] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a co...

Excerpt: ... to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. (Code Civ. Proc. S 664....