Excerpt: ...80) 111 Cal.App.3d 82, 88–89.) “In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–896.) “One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he ther...

Excerpt: ...ix months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was n...

Excerpt: ...s payable. The offer provided for judgment to be entered. Plaintiff accepted Defendant's 998 offer on 2/8/21. [Mkrdech Decl., ¶¶ 2-3 and Ex. A.] On 3/11/21, Defendant sent the check for $20,000, which Plaintiff deposited. [Mkrdech Decl., ¶ 5.] Plaintiff did not file a notice of the 998 offer and acceptance with the court. [Ayzen Decl., ¶4.] Then Defendants changed counsel. According to current counsel, when the file for this case was sent to ...

Excerpt: ...inability to comply is inadequate, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310(b)(2).) On June 29, 2022, Plaintiff sent a meet and confer letting requesting further response...

Excerpt: .... Legal Standard Punitive damages are not assessed against employers on a pure respondeat superior basis. (Rony v. Costa (2012) 210 Cal. App. 4th 746.) That is, under the respondeat superior doctrine, the employer is not liable for punitive damages absent fault or misconduct on the employer's part. CRST, Inc. v. Superior Court (2017) 11 Cal. App. 5th 1255). Pursuant to statute, in an action for the breach of an obligation not arising from contrac...

Excerpt: ... (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's ‘health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.' [Citation.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534-535, em...

Excerpt: ...n: 3:22-4:2; See also ¶4 of Potter Declaration and Exhibit A thereto). In response, Plaintiff correctly points out that Defendant has delayed in seeking this amendment. The Court denied a Motion to Enforce Settlement brought by Defendant on February 1, 2021, noting at that time that the Answer lacked an affirmative defense referencing a settlement. (ROA No. 36). Defendant does not address her delay in seeking leave to amend. However, the Court f...

Excerpt: ...ng Defendants were not named in the FAC. (ROA 132.) Defendants were again added by amendments on March 1, 2019, designating them this time as Doe Defendants Nos. 1 and 4. (ROA Nos. 148 and 151.) “It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them.” (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1142; See also Kuperman ...

Excerpt: ...ficient to constitute a cause of action. For the reasons set forth below, the motion to dismiss is DENIED, the previous dismissal of Jene Park is confirmed, and the demurrer is SUSTAINED WITH LEAVE TO AMEND on grounds of uncertainty. Both sides' requests for judicial notice are GRANTED. I. Procedural Background The Court assumes the parties' familiarity with the general factual background of this motion, which has been discussed at length in ruli...

Excerpt: ...int (FAC), and (2) an order striking Plaintiffs' allegations and request for punitive damages, and their request for attorney's fees. For the reasons below, the Court makes the following rulings: 1. The Demurrer as to all causes of action is OVERRULED. 2. The Motion to Strike as to Punitive Damages (FAC ¶ 122, Prayer ¶ 2) is DENIED. 3. The Motion to Strike as to Attorney's Fees (Prayer ¶ 7) is DENIED. An answer must be filed on or before Octob...

Excerpt: ... should be filed on or before March 8, 2023. Defendants' request for judicial notice is GRANTED. The Court also proposes on its own motion to take judicial notice of the trial court file in Reeves I. I. Background This case, Reeves I, and Reeves v. Rezaei, No. 21-01186967 (Reeves II) all arise from the City's revocation of a certificate of occupancy for Reeves' home in Newport Beach. In Reeves I, Reeves seeks a writ of mandate directing the City'...

Excerpt: ...ent Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material...

Excerpt: ...October 28, 2022. The supplemental briefs shall be no longer than seven pages and limited to the items of concern identified below. Any supplemental briefs in opposition to the motion shall be filed on or before November 4, 2022. The supplemental opposition briefs shall be no longer than seven pages and may only respond to points raised in the supplemental briefs in support; no additional argument in opposition will be permitted. No supplemental ...

Excerpt: ...nia Rules of court, rule 3.720(b) provides: “A court by local rule may exempt specified types or categories of general civil cases from the case management rules in this chapter, . . . . The court must include the alternative procedures in its local rules.” Due to the COVID-19 pandemic, this Court approved Local Emergency Rule 1, which suspended case management conferences through March 31, 2021. Local Emergency Rule 1 also set forth that for...

Excerpt: ...Uber Technologies, Inc., No. S274671. For the reasons set forth below, Defendant's motion is GRANTED. Plaintiff is to arbitrate his claims on an individual basis, and the representative portion of his PAGA claim is stayed pending the decision in Adolph. The current case management conference of October 31, 2022 is vacated. An arbitration review conference will take place in Department CX-104 at 8:30 a.m. on June 1, 2023. EVIDENTIARY MATTERS Plain...

Excerpt: ...rth below, the Court orders as follows: 1. The motion is DENIED with respect to Cervantes. 2. The motion is GRANTED with respect to Cruz. However, pursuant to CCP § 1281.2(c), the Court STAYS enforcement of the arbitration agreement as to all claims except Cruz's FEHA claims. Defendants' request for judicial notice of the United States Supreme Court's opinion in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 is GRANTED. Plaintiffs' ...

Excerpt: ...vide for filing a document after a reply has been filed. Plaintiff did not seek prior leave of court to file the document. A special demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be for...

Excerpt: ...rances, as well as pursuant to Code of Civil Procedure sections 473(a) and (b) because an answer was erroneously filed by defense counsel before counsel had a chance to speak to Miramontes, and that defense counsel was not able to speak with Miramontes until July 21, 2022, whereupon defense counsel first learned that Miramontes who was served in Donna, Texas per Plaintiffs' proof of service, was not the Miramontes that is named in the Complaint a...

Excerpt: ...o set forth the pertinent procedural history of this matter.  In 2017, a court trial was held on the Cross-Complaints. On 7/25/17, the court issued a tentative decision finding in favor of Bilkis Khan on both cross-complaints, and ordered the court clerk to release to Bilkis Khan the sum of $9,244.85 of the funds deposited with the court by interpleader. [ROA 126.]  Thereafter, the Judgment was executed on 8/18/17, and the original Statemen...

Excerpt: ...fendant cites to C.C.P. §473.5; however, as Judgment was entered on August 13, 2014, more than 2-years prior to the instant motion, relief pursuant to C.C.P. §473.5 is unavailable. (Trackman v. Kenney (2010) 187 Cal.App.4 th 175, 180). Pursuant to C.C.P. §473(d), however, “[t]he court may…on motion of either party after notice to the other party, set aside any void judgment or order.” Additionally, “a default judgment entered against a...

Excerpt: ... cause of action for negligence against Monarch based on the contract between the parties. Pursuant to Code of Civil Procedure section 437(a), “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) The court also “consider[s] the complaint's exhibits.” (Hoffman v. Smithwoods RV Park, LLC (200...

Excerpt: ...d judgment or order. Code Civ. Proc. § 473(d). Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” Hearn v. Howard (2009) 177 Cal. App. 4th 1193, 1200 (quoting Ellard v. Conway (2001) 94 Cal. App. 4th 540, 544). Section 473(d) provides relief from both the entry of default and a default judgment. Cal. Prac. Guide Civ. Pro. Before Tria...

Excerpt: ...10, subd. (a)(1).) “[I]t is long-settled that methods of service are to be strictly construed and that a court does not acquire jurisdiction where personal service is relied upon but has not in fact taken place.” (Slaughter v. Legal Process & Courier Service (1984) 162 Cal.App.3d 1236, 1251.) “The filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor Int'l, Ltd. v. Superior Court (1997) 59 C...

Excerpt: ...tration of Plaintiff's individual PAGA claim, and stays the representative PAGA claim pending arbitration. The Court SUSTAINS ESI's objections (ROA 70) to the Sorroza Declaration as to the portion of his statement that he would load and unload flatbeds “containing materials shipped and received all throughout the United States.” The Court declines to consider the Erselius Declaration (ROA 66) because it is new evidence presented in the Reply ...

Excerpt: ...to an arbitration agreement may enforce the agreement.” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 495, review denied (Nov. 24, 2020).) “However, there are several exceptions that allow a nonsignatory to invoke an agreement to arbitrate.” (Ibid.; citing JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1236-1237].) “The doctrine of equitable estoppel is one of the exceptions.” (Ibid.) “Under the doctrine of equi...