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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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....

Excerpt: ...the legal owner and the SAC concedes that Rasheen is the legal holder of the title. Plaintiffs argue that quieting title is warranted where title has been acquired through fraud. As with the FAC, the allegations show the alleged agreement was that legal title would remain in Rasheen's name. Thus, it appears that title itself was not acquired by fraud. Plaintiffs do not allege that Nasreen was promised that she would hold the actual, legal title t...

Excerpt: ...ally and as trustees of the aarrons Family Trust dated August 16, 1988; Aerovault Barrons, LLC; and Eaton Barrons, LLC RELIEF SOUGHT: The Davies Defendants ask the Court to sustain the Demurrer as to the fourth, fifth, seventh, eighth, ninth, tenth, twelfth, thirteenth, fourteenth, fifteenth, and seventeenth causes of action in the Fifth Amended Complaint. RELIEF SOUGHT: The Davies Defendants ask the Court to sustain the Demurrer as to the fourth...

Excerpt: ...ndividually and as trustees of the Kornievsky Living Trust dated October 4, 2005; Aero Vault Kornievsky, LLC; Haw-Kornievsky, LLC; Hamilton Kornievsky, LLC; Baker Kornievsky, LLC; Fiesta Kornievsky, LLC; Amlap Kornievsky, LLC; Eaton Kornievsky, LLC; and La Baya Kornievsky, LLC ("Kornievsky Plaintiffs") RELIEF SOUGHT: The Davies Defendants ask the Court to sustain the Demurrer as to the fourth, fifth, seventh, eighth, ninth, tenth, twelfth, thirte...

Excerpt: ...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 liberally construed, with a view to substantial just...

Excerpt: ...int. [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, provides, "This...

Excerpt: ...dder"). The underlying litigation, filed by Tedder in 1996, arose out of business dealings between Baer and Tedder during the late 1980s and 1990s. Tedder, an attorney, was a general partner of several Nevada limited partnerships that he created to provide "asset protection" services to his clients. Tedder sued on behalf of the limited partnerships to recover on loans they allegedly made to Baer's two corporations for real estate acquisitions. Ba...

Excerpt: ...Cready; Richard Johnston; Aero Vault Johnston, LLC; Amlap Johnston, LLC, and Amlap McCready, LLC RELIEF SOUGHT: The Basso Defendants ask the Court to sustain the Demurrer as to the first, second, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth causes of action in the Sixth Amended Complaint. UPCOMING EVENTS: None FACTS/OVERVIEW: This is a fraud, professional malpractice, and breach of duty action...

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: ... 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: ..."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: ...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: ...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: ...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: .... 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: ...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: ...2024" (Reply 6:1-7:12 and attached text at Exhibit "B") is GRANTED on the grounds that it is new matter not raised in the moving papers. San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315. Respondent challenges the Petition on the grounds Petitioner cannot identify a mandatory duty of the Sheriff to issue a Concealed Carry Weapon ("CCW") license. Code of Civil Procedure section 1085, subdivision (a), provides: "A writ...

Excerpt: ...nd cause of action for battery. "A battery is any intentional, unlawful and harmful contact by one person with the person of another.... A harmful contact, intentionally done is the essence of a battery.... A contact is "unlawful" if it is unconsented to....' [Citation.) The elements of a civil battery are: ' "1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiffs person; [9] 2. Plaintiff did no...

Excerpt: ...'s discovery response from September 25, 2022 indicating she was being treated by the Witness as a result of the subject incident and Plaintiff's claim for wrongful death damages based on loss of society, comfort, care, and protection afforded by the decedent. However, Plaintiff amended her discovery response just two days after the initial responses to indicate that the Witness had been erroneously identified and to clarify that Plaintiff was no...

Excerpt: ...rt of or in opposition to the motion." l. In support of its motion for summary judgment, Plaintiff submitted evidence of the following material facts: • On June 3, 2022, Defendants executed and delivered to Plaintiff a settlement agreement whereby they agreed to pay $110K to Plaintiff in exchange for a release of claims against them regarding a failure to repay loan no. 484-50178-1 between the parties. A copy of the settlement agreement is atta...

Excerpt: ...policy is owed and no liability attaches to Defendants. As noted by the Court in Safeco v. Parks (2009) 170 Cal.App.4th 992, an "insurer may raise collusion as a defense in a subsequent bad faith action." (ld. at 1013). When analyzing the case law, it's significant that this achon arises following Defendants' refusal to defend the underlying action and the issuance of a judgment following a trial (SSLJF No. 40). "[Flor purposes of this motion... ...

Excerpt: ...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 defense thereto. The plaintiff or crosscomplainant sh...

Excerpt: ...to the Court's ruling. Defendants' moton for summary judgment, or in the alternative summary adjudication, to Plaintiff Marvin Diaz Rivas' Complaint asserts: 1. There is no evidence any Intelligrated product at Tilly's warehouse had any manufacturing defect, and therefore summary judgment should be granted as to all claims in Plaintiff's Complaint premised on alleged manufacturing defects. 2. There is no evidence any Intelligrated product at Till...

Excerpt: ...(See Evid. Code, S 452, subd. (d).) Defendant HP Communications, Inc. (Defendant HP) moves for summary judgment on the Second Amended Complaint (SAC) filed by Plaintiff Sarah Huber. For the following reasons, the unopposed moton is granted. Standard for Summary Judgment or Summary Adjudication "Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is ent...

Excerpt: ...LC shall prepare a proposed judgment and serve it on Defendant Venice Development, Inc. dba Cadillac Hotel and Defendant Sris Sinnathamby and submit it to the court pursuant to Rules of Court Rule 3.1590(h). The Court finds good cause to allow Plaintiff 20 days from the date of this ruling to prepare, serve, and submit the proposed judgment. Plaintiff Quick Bridge Funding, LLC moves for summary judgment as to the Complaint filed by Plaintiff, or ...

Excerpt: ...he notce of moton and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail." If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and Rule 2.251, Rule 3.1362(d) requires Moving Counsel to submit a declaration stating that the electronic service addres...

Excerpt: ...ent between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Management, LLC (9th Cir. 2016) 655 Fed.Appx. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F. 3d 559, 555.) 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 ...

Excerpt: ... Community Clinic (2021) 72 Cal.App.5th 158, 165- 166 (Gamboa) [three-step shifting burden of proof].) Antioch has met its burden to produce prima facie evidence of a written agreement to arbitrate the controversy by submitting a signed copy of the retail installment sales contract (RISC) entered into between plaintiff and Antioch, which contains an arbitration agreement that encompasses plaintiff's claim against this defendant. (See ROA No. 32�...

Excerpt: ...tion to compel a nonparty to comply with a deposition subpoena for document production. At least one court applied the good cause showing requirement to a nonparty production, "since it is unlikely the Legislature intended to place greater burdens on a nonparty than on a party to the litigation." (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223-224.) To establish "good cause," the burden is on the moving party to demo...

Excerpt: ...ute, Civ-l Procedure Code section 425.15. Basis for Award of Attornevs Fees and Costs Civil Procedure Code section 425.16 states that "a prevailing defendant on a [Anti-SLAPP] special motion to strike shall be entitled to recover that defendant's attorney's fees and costs." (Code Civ. Proc„ S 425.15, subd. (c)(l).) under this provision, "any SLAPP defendant who brings a successful moton to strike is entitled to mandatory attorney fees." (Ketchu...

Excerpt: ..., Plaintiff has submitted evidence showing that two filing fees were paid. In addition, pursuant to the Court's November 13, 2023 Minute Order, the parties were to "file a Joint Statement setting forth the efforts made by counsel to meet and confer, as well as stating what issues remain for the Court and why the parties were unable to resolve their issues . " no later than 9 court days before the continued hearing date. ROA 95. The parties timely...

Excerpt: ...action based on forum non conveniens. Defendants A2E Advisors ("A2E"); Blattner Technologies SPV 1, LLC ("SPV"); and Unicorn & Lion, LLC ("Unicorn") have also jointly filed their own Motion to Dismiss on the same grounds. In most circumstances, California law considers mandatory forum selection clauses presumptively valid and enforceable: "'California favors contractual forum selection clauses as long as they are entered into freely and voluntari...

Excerpt: ...tial Withdrawal filed on 11/29/23 states the motion is withdrawn as to RFPs4, 6, 13, 37, 38, 46, 48-51, and 55-58. Plaintiff states the following RFPs remain at issue: 1-3, 5, 7-12, 14-17, 19, 20, 22, and 27-36. Based on the Opposition and Notice of Partial Withdrawal, it is unclear which RFPs remain in dispute. Therefore, the parties are ordered to further meet and confer to clarify and narrow the issues for the Court. Defendant shall diligently...

Excerpt: ...re Michael Stamos (Dean of the School of medicine at UCI) and Regents of the university of California. Petitioner seeks relief pursuant to Code of Civil Procedure SS 1085 (ordinary mandate) and 1094.5 (administrative mandate). As explained in Bunnett v. Regents of Univ. of California: The proper method of obtaining judicial review of most public agency' decisions is by instituting a proceed-ng for a writ of mandate. Statutes provide fortwo types ...

Excerpt: ...n. (O'Connell v. Superior Court (2006) 141 Cal.App. 4th 1452, 1481.) The moving party has the burden to show that it is reasonably probable it will prevail on the merits. (San Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal.App.3d 438, 442; Weil & Brown, 9:632.1.) Additionally, "[i]n deciding whether to issue a preliminary injunction, a trial court weighs two interrelated factors: [1] the likelihood the moving party ultimately w...

Excerpt: ...he Documents and the Truth of the Matters Specified in Movants' Requests for Admission (Listed Below) Be Deemed Admitted. are taken OFF CALENDAR as moot. Defendant WLC I The Williams Law Corporation is ORDERED to payto Defendants Tryal Edmundson, Osbelia Edmundson, and Daniel Perales sanctions in the amount of $2,865.00 (7.0 hours x $375 per hour in reasonable attorney's fees and $240 in motion filing fees) within 30 days of service of the notice...

Excerpt: ..., false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., S 436.) "Irrelevant" matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim, or a demand for judgment requesting relief not supported by the allegati...

Excerpt: ...ding company that owns Flagstone Healthcare Central, LLC which owns Empire. TEG also owns ESI which had a consulting agreement with Empire to provide various services. l. MOTION BY THE ENSIGN GROUP, INC. Plaintiff's Objections to Decl. of Robert Shephard Plaintiff asserts objections to 17 statements made in the declaration of Robert Shephard. The objections are OVERRULED. Plaintiff's Request for Judicial Notice Plaintiff asks the Court to take ju...

Excerpt: ...rom limited to unlimited jurisdiction, i.e., that a greater recovery "could not be obtained" or is "virtually unobtainable." ld. at p. 269-270. Appellate courts have underscored the high threshold set by Walker: "[The plaintiff] may well not prevail on the factual disputes regarding the extent of his injuries .... But a [Walker] hearing is not to be perceived as a minitrial or an opportunity for a trial judge to put forth a well-educated guess of...

Excerpt: ...pliance with Business & Professions Code section 7068(b)(3). Under the Contractor State License Law, "a contractor may not maintain any action, legal or equitable, to recover compensation for the 'performance of any act or contract' unless the contractor was duly licensed 'at all times during the performance of that act or contract.'" Vascos Excavation Grp. LLC v. Gold (2022) 87 Cal.App.5th 842, 850 (Vascos). A corporation like Icon may qualify f...

Excerpt: .... Code S 210.) In terms of expert evidence, such testimony must be "[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code S 801.) Here, the City's expert evidence is relevant to the City's defenses in this action. Petitioner alleges the City illegally imposed water and sanitation fees and charges on residents that exceed the cost of providing said services a...

Excerpt: ...10, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months." Defendants' reliance on Ables v. A. Ghazale Bros. , Inc. (2022) 74 Cal.App.5th 823 is misplaced. In Ables, the plaintiff's personal injury action was set for trial five years and seven months after it was filed. The trial court granted the defendants' motion to dismiss...

Excerpt: ...nd thereto, and for $1,280.88 in sanctions on each such motion, against Gill and Kaur, respectively; b) Motions 3-5 (ROAS 62, 82 and 50): Plaintiff moves to compel responses without objections to Requests for Production, Set One, as directed to Defendant Mickle & Lucky Estates, LLC (here, "Owner"), Kaur and Gill, for failure to respond thereto, and for $1,280.88 in sanctions on each such motion, against Owner, Kaur, and Gill, respectively; c) Mot...

Excerpt: ...nd consolidation is proper because this achon and the UD action involve the same parties; the parties are represented by the same legal counsel in both actions; inwlve claims related to the same real property located at 4 San Sebastian, Newport Beach, California ("Property"); concern the same agreements, i.e„ the Lease Agreement, the Residential Purchase Agreement, and the Option to Buy Agreement; and consolidation will promote cost savings and...

Excerpt: ...NIES Defendant's Motion for Judgment on the Pleadings on the First Amended Complaint (FAC). A. Plaintiff Alieu M. Conteh Defendant first argues that Plaintiff ALIEU M. CONTEH is mentally incapacitated, lacks capacity to maintain this action, and failed to follow the for having a guardian ad litem apim-lted. Here, the FAC (filed back on 12/21/2020) concedes that Plaintiff Alieu M. Conteh has been deemed incompetent by the High Court of South Afric...

Excerpt: ... person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief." (Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 495.) "The only mental state required to be shown to prove false imprisonment is the intent to confine, or to create a similar intrusion." (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 716.) Plaintiff alleges, "[on] January 5th 2023 the Defendants took away the Plaintiffs gate pass which meant ...

Excerpt: ...iff Esther Alarcon Ruiz's second and third causes of action, for breach of the implied covenant and negligence. The demurrer to both counts is SUSTAINED WITH LEAVE TO AMEND. Any amended complaint must filed by December 15, 2023. Defendants' request for judicial notice is GRANTED. l. Background As alleged in the complaint, Plaintiff is a tenant at the Villa Del Sol Apartment complex in Santa Ana. The complex is owned by Advanced Group 94-55 and ma...

Excerpt: ...or laws." (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 72.) The Court will approve the follow-ng distributions: 1. Attorneys' fees and litigation costs in the amount of $2,000 from the $30,000 allocated to settle the PAGA claim. This award is discussed more fully below. 2. Litigation costs in the amount of $4,000, representing the full amount sought. 3. Administration costs in the amount of $2,950, representing the full amount sought. 4. ...

Excerpt: ...mount of $317,500, nor do the settlement components set forth in the supplemental declaration add up to $250,000. 2. The amount of PAGA penalties allocated to the LWDA and to the aggrieved employees. Sections 13 and 19 of the Quintilone supplemental declaration appear to conflict on these amounts. 3. The amount of incentive payment Plaintiff seeks to receive. Is it $10,000 per Section 23 of the supplemental declaration, or is it $3,000 per Sectio...

Excerpt: ...and federal civil rights and employment statutes." (Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 18 Cal.App.5th 525, 545, cleaned up; see also Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1388 [fees should not be awarded against FEHA plaintiff "unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so"]; USS-Posco Industr...

Excerpt: ... their recovery under the proposed settlement. In the motion for preliminary approval, plaintiff represented that there were 1270 employees, 1189 of whom were class members, 1029 of whom signed Pick-Up Stx agreements, leaving 160 class members to participate in the settlement. But in the motion for final approval, plaintiff represents that there are 1445 class members, 1130 of whom signed Pick-up Stx agreements, leaving 315 class members to parti...

Excerpt: ...ty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; see also X-Compl. 6-10.) It adequately alleges damages, despite Daniels' invocation of the prepaid rent. (Compare Reply at p. 5 with X-Compl. 10.) If nothing else, SIB- Monaco's liability to return the prepaid rent is damage enough. 2nd cause of action, breach of implied covenant. The crosscomplaint fails to state facts sufficient to constitute a cause of action. "If the allegations do not...

Excerpt: ..."'The practice of forcing trial counsel to testify as a witness has long been discouraged .. and recognized as disrupting the adversarial nature of our judicial system...." (Spectra- Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1494.) Consequently, "California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is ...

Excerpt: ... is without merit. First, Plaintiff argues that the applicable discovery cutoff is based on the original trial date of 7/20/20 and should not be based on the current trial date of 12/18/23. The argument makes little sense given what has transpired in this action after the original trial date of 7/20/20 was set at the original CMC on 7/12/19. (See 7/12/19 Minute Order.) Trial was essentially delayed due to Covid, the appeal, amended pleadings, and...

Excerpt: ...aintiff's gross negligence claim (FAC, page 20, 104-106; page 24 at line 22). The remainder of the motion is denied. Defendants move to strike the claim for exemplary and punitive damages and all references supporting the same in the FAC. A plaintiff may recover exemplary damages in an action for the breach of an obligation not arising from contract if the plaintiff proves by clear and convincing evidence that defendants are "guilty of oppression...

Excerpt: ...l. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) '19.53. la.) Failure to Serve Statement of Damages Prior to Entry of Default Defendant contends the default and default judgment are void because Plaintiff Paul Barnat, D.D.S., failed to serve a statement of damages prior to seeking entry of default. Code of Civil Procedure section 425.11 states in pertinent part: (b) When a complaint is filed in an action to recover damages ...

Excerpt: ....) On May 12, 2023, the court ordered Plaintiff to provide further responses to TWDC Enterprises 18 Corp. motions to compel further responses to form interrogatories, set one, special interrogatories, set one, and requests for production of documents, set one, within 20 days of notice of the ruling. The court also ordered Plaintiff to provide further responses to Defendant Walt Disney Parks and Resorts U.S., Inc.'s motions to compel further respo...

Excerpt: ... However, the Court declines to consider Plaintiffs' supplemental brief filed on November 28, 2023. Evidentiary Objections Omar Daher's objection to paragraph 41 of Joseph Dib's 11/13/2023 Declaration is sustained. Omar Daher's objections to paragraphs 21, 22, 24 (erroneously numbered 21 on page 8, line 12), 25, and 33 of Monica Dib's 11/13/2023 Declaration are sustained. Omar Daher's objection to paragraph 24 of Nassar's Declaration is sustained...

Excerpt: ... or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just." (Code Civ. Proc., S 410.30(a).) "The doctrine of inconvenient forum (often referred to as forum non conveniens) allows courts to 'exercise their discretionary power to decline to proceed in those causes of action which they ...

Excerpt: ...s." (Olinick v. BMG Entertainment (20436) 138 Cal.App.4th 1286, 1294.) Code of Civil Procedure section 418.10, subdivision states: "A defendant, on or before the last day of his or her time to plead or within any further time that the court may for cause allow, may serve and file a notice of motion . [t]o stay or dismiss the action on the ground of inconvenient forum." California (and federal) courts presume the validity of forumselecton clauses....

Excerpt: ...stain a finding that, among other things, "the warning that is required by the settlement complies with sections 25249.5-25249.14." (Health & Sat Code, S 25249.7(f)(4), (f)(5).) Section 25249.6 provides, "No person in the course of doing business shall know-ngly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, exc...

Excerpt: ... another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause Page 13 of 42 unnecessary delay." Such "actions or tactics" include the filing and service of a complaint. (CCP under this statute "frivolous" means "totally and completely without merit or for the sole purpose of harassing an opposing party." (CCP S128.5(b)(2).) under CCP S 128.7(b), an attorney signing or filing a motion certifies...

Excerpt: ...pliance, the governmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance." (Gong v. City Page 20 of 42 of Rosemead (2014) 226 Cal.App.4th 353, 375.) Similarly, a court may take judicial notice that public records do not contain a claim, where a "[government] employee familiar with the records...searched the records and so declared." (Fowler v. ...

Excerpt: ...on, with the requisite specificity. (See Covenant Care, Inc. v. Superior Court (2Cu) 32 Cal.4th 771, 783 [elements of elder abuse based on neglect, S#cificity]; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152, 155 [caretaking or custtxlial relationship]; Welf. & Inst. Code, S 15610.57, subds. (a)(l), (b); Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1349-1351 [knowing pattern and practice of chronic ...

Excerpt: ...e sections 451(a), 452(c) and (h), and 453: 1. A copy of the California Department of Insurance ("CDI") license information for Defendant Bele Nguyen retrieved from the CDI's website, accessed on July 1, 2023. 2. The CDI issued to license OC54331 to Bele Thi Nguyen. 3. Bele Thi Nguyen maintains a current property license with the CDI. 4. Bele Thi Nguyen has an authorized agent of State Farm General Insurance Company for property and casualty as o...

Excerpt: ...st set forth the essential facts of his or her case ' " 'with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent' " ' of the plaintiffs claim. [Citation.] Legal conclusions are insuffcient. [Citations.] 'We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.' [Citation.]" (Annocki v. Peterson Enterpri...

Excerpt: ...nuous accrual. However, Plaintiff's complaint fails to state facts supporting the application of these doctrines including the dates of repair attempts and Plaintiff's discovery of the factual basis for his claims. Therefore, Plaintiff has failed to allege facts demonstrating his ninth and tenth causes of action are timely. Ninth Cause of Action — UCL: Business and Professions Code S et seq ("UCL") prohibits unfair competition, which is defined...

Excerpt: ... include a finding that Keller and are jointly and severally liable in the amount of $9,239.68 (the amount of the arbitration award) plus costs in the amount of $1,296.75; and that 1- 800-Battery is also liable for an additional $38,641.50 plus prejudgment interest and attorneys fees in the amounts of $25,518.40 and respectively. As a preliminary matter, the court declines to consider the late opposition filed by because 1-8W is not entitled to t...

Excerpt: ...of Michael Prozan in Support of Motion fails to comply with California Rules of Court, rule 3.1324(b), which requires that a separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. The Prozan Declaration does not c...

Excerpt: ... actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay." Such "actions or tactics" include the filing and service of a complaint. Page 10 of 42 (CCP Under this statute "friwlous" means "totally and completely without merit or for the sole purpose of harassing an opposing party." (CCP Under CCP S 128.7(b), an attorney signing or filing a motion certifies "that to the best of the person's knowledge,...

Excerpt: ...tion in TPG's Second Amended Complaint. 5th Cause of Acton As to the 5th Cause of Action for Intentional Interference with Contract, Defendants advance two arguments. As to the first argument, Defendants contend that they did not intend to induce a breach of the Joint Venture Agreement ("JVA"). In particular, Defendants contend that they did not have sufficient knowledge of the terms of the contract and rely on Winchester Mystery House, LLC v. Gl...

Excerpt: ...suant to FEHA against United Parcel Service General Services Co., (3) retaliation pursuant to FEHA against United Parcel Service General Services Co., (4) wrongful failure to promote in violation of public policy against United Parcel Service General Services Co., (5) retaliation pursuant to Labor Code section 1102.5 against United Parcel Service General Services Co., and (5) failure to prevent discrimination and retaliation against United Parcel...

Excerpt: ...add additional judgment debtors. The theory underpinning this procedure is that the court is not really amending the judgment, but is merely inserting the correct name of the real defendant. [NEC Electronics Inc. v. Hurt (1989) 208 Cal. App. 3d 772; McClellan v. Northridge Park Townhome Owners Ass'n, Inc., (2011) 89 Cal. App. 4th 746, 107.1 A noticed motion is required to amend a judgment under Code of Civ-l Procedure section 187. (Wells Fargo Ba...

Excerpt: ...tice. (Code Civ. Proc. S 2025.450(b)(1).) A showing of "good cause" is made by declarations containing specific facts justifying inspection of the documents described in the notice. (Cal. Prac. Guide Civ. Pro. Before Trial S 8:801.2 (Rutter Group 2021).) In addition, the moton must be accompanied by a meet and confer declaration. (CINIe Civ. Proc. "A meet and confer declaration in support of a motion shall state facts showing a reasonable and goo...

Excerpt: ...on, '1 7, Exh. J. Code of Civil Procedure secton 2030.300(c) states: "Unless notce of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories." Here, the emails between counsel st...

Excerpt: ...ess the arbitration award is corrected or vacated, "the court shall confirm the award as made." (Code Civ. Proc. S 1286.) The petition shall (1) set forth the substance of the arbitration agreement or attach a copy thereof, (2) set forth the name of the arbitrator(s), and (3) set forth or attach a copy of the award and the written opinion of the arbitrator(s), if any. (Code Civ. Proc. S 1285.4.) "If an award is confirmed, judgment shall be entere...

Excerpt: ...n the alternative show cause why it should not do so, and thereafter issue a peremptory writ commanding Respondent either rescind its 'Potentially Dangerous Dog Declaration', or amend the provisions of the Mission Viejo Municipal Code to define the term 'provocation' and to allow Petitioner a trial on all issues of fact, and allow Petitioner to present evidence on all properly plead defenses." Neither party provides a standard under which the cou...

Excerpt: ...16 of 42 than 50 percent of the votes in the association, to vote in favor of the amendment, the association, or any member, may petition the superior court of the county in which the common interest development is located for an order reducing the percentage of the affirmative votes necessary for such an amendment." (Civ. Code, S 4275(a).) The Court may grant the petition if it finds all of the following: "(1) The petitioner has given not less t...

Excerpt: ...t the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reaso...

Excerpt: ...s must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code secton 1714." (Eastburn v. Regional Fire Protection Authority (2W3) 31 Cal.4th 1175, 1183.) "Since the duty of a governmental agency can only be created by statute or 'enactment,' the statute or 'enactment' claimed to establish the duty must at the very least be identified." (Sear...

Excerpt: ...s that they, the listing agent and broker, were aware of "latent water intrusion defects which were allegedly concealed and not discovered until plaintiffs began upgrading the Pro#rty and retained a mold expert"; that the allegations that COLLEEN is "the sellers' daughterin-law" and "had spent significant time at the [Property] over the years" and used the barbeque and backyard are insufficient; that the Complaint is devoid of any specific facts ...

Excerpt: ...te no later than a date to be determined at the hearing. Plaintiff is awarded sanctions of $81W against Defendant, to be made no later than January 2, 2024. Plaintiff's motion to deem admitted requests for admission, set one, served on Defendant, is denied. Motion to Compel Responses to Form Interrogatories If a party to whom interrogatories are directed fails to serve a timely response: (1) the party who has failed to provide a timely response w...

Excerpt: ...decided by arbitration and not in a court or by jury trial. If a dispute is arbitrated, I will give up my right to participate as a class representative or class member on any Claim I may have against you including any right to class arbitration or any consolidation of individual arbitrations. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights you and I would have in court may not be avail...

Excerpt: ...e ends of justice and is for the convenience of witnesses. The Court may change the place of trial when the convenience of witnesses and the ends of justice would be promoted by the change. Civ. Proc. S 397, subd. (c).) The moving party has the burden of proving "'that both the convenience of witnesses and the ends of justice will be promoted thereby It is primarily a question for the trial judge whether that burden has been successfully sustaine...

Excerpt: ...r 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 in the notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. [9] (b) A motion under...

Excerpt: ...by the agreement. Civ. S 1281.2.) "The trial court may resolve motons to compel arbitration in summary proceedings, in which '[tlhe 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 provng by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits ...

Excerpt: ...he action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litgation.... (f) upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, ...

Excerpt: ...; and 3. that Defendants be compelled to pay monetary sanctions to BALBOA in the total sum of up to $2,044.50, which amount comprises reasonable costs and fees incurred in bringing this motion. Code of Civil Procedure section 2023.010 states, in part, as follows: "Misuses of the discovery process include, but are not limited to, the following: . . [9] (d) Failing to respond or submit to an authorized method of discovery. . . . [9] (g) Disobeying ...

Excerpt: ...urt, Rule 3.1350 (b).) And, or alternatively, plaintiff Northern California Collection Service, Inc. moves this Court on Code of Civil Procedure section 437c grounds for an order summarily adjudicating its second cause of action against defendant Love Transit lnc as follows: ISSUE 2 - NORTHERN IS ENTITLED TO JUDGMENT ON THE SECOND CAUSE OF ACTION ON AN ACCOUNT STATED BECAUSE IT PROVED EACH ELEMENT OF THE CAUSE OF ACTION. (Code Civ. Proc., S 437c ...

Excerpt: ...laintiff/nominal defendant, even though a DOE Amendment was filed on June 1, 2023 to name Plaintiff's sister as a nominal defendant, Plaintiff now seeks to amend her operative complaint to avoid further technical issues with Defendants by including her sister Van Ly as a nominal defendant in this medical malpractice case." (Motion; 3:3- 8.) California Rules of Court, rule 3.1324 states in part, "(a) Contents of Motion [91 A motion to amend a plea...

Excerpt: ... 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 purpose of de...