Excerpt: ...if such allegation is controverted, then plaintiff must establish, on the trial, the facts showing such performance. (CCP § 457). When a condition precedent imposed by the contract is an act to be performed by the plaintiff, the plaintiff may allege the performance in general terms. (4 Witkin, Cal. Proc. 5th Plead § 538 (2008).) Under these rules, it is not required that a plaintiff allege the specific facts showing his performance of the contr...

Excerpt: ...s request for judicial notice of Exhibits 1 and 2 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) As to the 1 st through 3 rd Causes of Action as shareholder derivative claims, the Court OVERRULES the demurrer. The Court finds that the SAC has adequately alleged demand futility in paragraph 20 ...

Excerpt: ...Hearing is set for January 10, 2020 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. Defendant has shown that there exists a valid written agreement to arbitrate the claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. The FAA applies since defendant is engaged in interstate commerce. P...

Excerpt: ...SAR”) and/or proposed Class Notice is submitted, a redline version showing all changes, deletions and additions shall be submitted as well. As to the Settlement: 1. The SAR provides for a class of 1,206 persons (SAR § 1.03), while the subsequent declaration of George Hurley states the class, after the discovery of additional persons who should be excluded, consists of 1,174 persons. (Hurley Decl. ¶ 10.) The class sizes differ by 32, but the H...

Excerpt: ...aration can rely on information and belief only upon a proper showing of the reliability of the information. The application must show the following elements:  right to possession, i.e., plaintiff must show the evidence forming the basis of a claim for possession; if based on a written document, the document should be attached (Code Civ. Proc., § 512.010, subd. (b)(1))  defendant's possession, i.e., how it came into possession of the prope...

Excerpt: ...gal or equ property' become the property of the bankruptcy estate and will be distributed to v. Jacoway (2005) 544 U.S. 320, 325; see also Cloud v. Northrop Grumman Cor p 1001.) This means “after a person files for bankruptcy protection, any causes of that person becomes the property of the bankrupt estate.” (Cloud, supra, at p. 1 “[A] Chapter 7 debtor may not prosecute on his or her own a cause of action bel o unless the claim has been aba...

Excerpt: ...ear to be taken into consideration in setting counsel's hourly rates in this contingency case, making it improper for this court to use a multiplier based on those same factors. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal. App. 4th 785, 822. In addition, defendant made a 998 offer for the full purchase price of the vehicle only five days after plaintiff filed this case. For plaintiff to confidently refuse the offer s...

Excerpt: ... add up, and because plaintiffs failed to provide the court with an updated figure for the amount of payroll taxes to be paid from the settlement funds, the court cannot figure this out for itself. Plaintiffs request attorneys' fees of $98,418.26 based on that number being 1/3 of the settlement amount minus the employer's share of payroll taxes to be paid from the settlement funds. Since 1/3 of $300,000 is $100,000, the difference of $1,581.74 su...

Excerpt: ...October 24, 2018 Declaration (ROA 93), Attorney Scott Leviant stated the size was approximately 2700 at the preliminary approval stage. Additionally, Counsel previously represented that the average individual payment to be $925. However, despite the reduction in class size, the average payment is now represented to be lower, at $723.24. Please explain how a reduction in class size results in a reduction in the average payment as opposed to larger...

Excerpt: ...ice was not provided pursuant to Code of Civil Procedure section 1005, subdivision (b). “Generally, leave to amend must be liberally granted [citation], provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank (1999) 68 Cal.App.4th 1435, 1448.) If, however, the party seeking the amendment has been dilato...

Excerpt: ...erest in the property or controversy which is the subject of the cause [of action] brought against him.” (Code Civ. Proc., § 428.10 subd. (b).) Defendants may cross-complain against any person from whom they seek equitable indemnity. Defendants need only allege that the harm for which they are being sued is attributable, at least in part, to the cross-defendant. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 607; Paragon Re...

Excerpt: ...eeds, the vesting date was 11/13/1 4 Plaintiff knew that the face value of the policy of $4 mi l Complaint). This amount was fixed. It was only reduce d the subsequent settlements. Attorney Fees and Costs: In an effort to mitigate da m $1,520,874.27 in legal fees and costs in the Transame r BVI Action. In the SAC filed on 5/30/17, Plaintiff requested “In e and costs arising out of the New Jersey Action [and] In and costs arising out of the BVI ...

Excerpt: ...d is immediately enforceable through execution. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.) The Newland court stated: “Weil and Brown observe that many attorneys seem to be unaware that monetary sanction orders are enforceable through the execution of judgment laws. [Citation.] These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may o...

Excerpt: ...he time of the alleged sexual abuse, RCOC knew, had reason to know, or was otherwise on notice of defendant Jonathan Ryan McKay's (McKay) unlawful sexual conduct, and failed to take reasonable steps to avoid acts of further unlawful sexual conduct by McKay. (See FAC ¶¶ 39, 41-44, 47, 76, 77, 81.) RCOC has not properly addressed these allegations. RCOC has presented no evidence showing that it did not know of and was not on notice of the alleged...

Excerpt: ...ters stated within documents. This action is ordered stayed pending completion of the arbitration. The Status Conference set for today is ordered off calendar. A Post-Arbitration Review Hearing is set for December 6, 2019 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. Defendants have shown that there exists a valid agreement to arbitrat...

Excerpt: ..., or tangible thing described in the deposition notice” 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 Section 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 ...

Excerpt: ...l.App.4th 1 the court determined that Plaintiffs Mobile Authentication Corporation (“MAC”) an (“Palisades”) lacked capacity to maintain the instant action and sustained the De m Inc. and Miguel Medina. (See 4/12/19 Minute Order.) On May 13, 2019, Plaintiffs filed their Fourth Amended Complaint (“4AC”). Despit the 4AC, there is no evidence demonstrating that Plaintiffs have complied with C a 2203 by paying fees, penalties and taxes, ma...

Excerpt: ... for production No. 19 as follows (where underlined) to limit it in scope to vehicles of the same year, make, and model as the subject vehicle: All DOCUMENTS, including but not limited to electronically stored information and electronic mails, concerning customer complaints, claims, reported failures, and warranty claims related to POWERTRAIN DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE, including but not limited to...

Excerpt: ...a Ion and Ra Global Resources, fact are substantially different in that the cases involved different parties and a d i 11 months apart. Also, there was substantial delay in bringing this motion. For a denied. Case Management / Trial Setting Conference and OSC Re Dismissal of Un There being no submission re good cause on the lack of service on Defendant Mi h cause otherwise available, Defendant Mihaela Ion is dismissed without prejudice. A Jury Tr...

Excerpt: ...“In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: The validity of service was the subject of litigation by the parties.” Here, plaintiffs purported to serve defendant Nguyen with the Summons and First Amended Complaint by substituted service on April 28, 2018. Defendant failed to respond, and plaintiffs had his default enter...

Excerpt: ...0.) Furthermore, Defendants have not shown on the merits that joinder should be compelled. A party is indispensable where the plaintiff seeks a type of affirmative relief that, if granted would affect the interest of a third person not joined. (Sierra Club, Inc. v. California Coastal Comm. (1979) 95 Cal.App.3d 495, 501; Code Civ. Proc., § 398, subd. (a).) In other words, Plaintiff is required to join as parties to the action any person whose int...

Excerpt: ... by the party against whom the costs are allowed.” The ordering of a copy of the transcript of Avrit's deposition was reasonable and n required to photocopy the original deposition for his expert. The statute specially videotaping witness's depositions. Item No. 4e: SDT Medical Records: Plaintiff ordered copies of the records that practice for Plaintiff to obtain the records that Defendant secured. Item No. 5: Costs of Service of Process: Altho...

Excerpt: ...ton. Day argues the ruling determines Day was not negligent in its work with regard to the project. Day also contends that because it is not liable to plaintiff, it is not liable to District. Day is incorrect with regard to both points. Under the “completed and accepted” doctrine, once a contractor or subcontractor has completed work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condit...

Excerpt: ...Amendment rights.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 208.) The motion may be used to attack portions of a cause of action, even if the motion does not defeat the entire purported cause of action. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) However, if the allegations are “merely incidental” or “collateral” to the claim, in the first instance, i.e., “they merely provide context, without supp...

Excerpt: ...dentified attorneys in moving exhibit A, whose rate the Court is reducing to $300 per hour (- 3,600). Added to this, is 14 hours for reasonable work for this fee proceeding (14 x 425 = + 5,950) and finally, 25 hrs. are added for reasonable paralegal time at the reasonable rate of $125/hrs. to cover the range of work that is described in moving exhibit A (25 x 125 = +3,125). Preliminary Matters The papers indicate that case has settled. Plaintiff ...

Excerpt: ...:  Specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and  Include with the moving papers:  a copy of the proposed amended pleading; and  a declaration specifying: 1. the effect of the amendment(s); 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 was not made earl...

Excerpt: ...pose to add to their 2AXC. In his declaration at paragraph 10, Cross- Complainants' counsel Douglas Wade states that Cross- Complainants propose to add a claim for Negligent Misrepresentation. But in their motion at page 7, lines 17-20, Cross-Complainants state that they have added two causes of action for Intentional Interference with Prospective Economic Relations and Misappropriation of Trade Secrets. Accordingly, it is uncertain as to what Cr...

Excerpt: .... Superior Court (1992) 2 Cal.4th 1064, 1971-72, there is no recognizable independent claim for NIED. In Burgess the court stated that: “We have repeatedly recognized that ‘[t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. [¶] Whether a defendant owes a duty of care is a question of law. Its existenc...

Excerpt: ...ehensive discussion is still warranted. The jury found in Cannivet's favor on his cross-complaint for breach of contract and quantum meruit, based on his proof of a joint venture with Palo. These findings are challenged herein. It should be noted since the time of the jury verdict on Cannivet's cross-complaint, this Court ruled against Cannivet on his various remaining equitable claims, as follows:  On Cannivet's cause of action for promissory...

Excerpt: ...ched to a foundation, the mobile home or manufactured home remains personal property and any security interest in such property is foreclosed pursuant to the California Commercial Code, as modified by the purchase money security interest principles applicable to mobile homes and manufactured homes. SeeCal. Health & Safety Code §§ 18075, 18075.6 & 18551(a). Defendant also argues that Plaintiff must first sell the mobile home, perfect title, serv...

Excerpt: ...g evidence that Defendant's employee(s) acted with recklessness or malice. The jury returned a verdict for Plaintiff Underwood on her negligence cause of action and for Plaintiff Swalve on her wrongful death cause of action. The jury awarded Plaintiff Underwood $600,000 on her elder abuse claim and $49,308.73 on her negligence claim. The jury awarded Plaintiff Swalve $750,000 on her wrongful death claim. The elder abuse and wrongful death awards ...

Excerpt: ...ment agreement', to avoid waste of limited Court time and resources. “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549 [citing Lab. Code, § 2699(l)(2)].) As to the Settlement 1. Why is “SCP Distributors, LLC” included in the definition of “Aggrieved Employees.” 2. Plaintiff has not provided any val...

Excerpt: ...tinued the hearing as to the remaining causes of action (second through seventh) to allow for supplemental briefing. The Court has reviewed the supplemental briefs submitted by the parties and SUSTAINS the demurrer as to the second, third, fourth, fifth, sixth, and seventh causes of action. These causes of action challenge the facial constitutionality of PAGA under the state and federal constitutions. “A facial challenge to the constitutional v...

Excerpt: ...verred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint'” subject to demurrer) (citation omitted). Conclusory allegations of defenses that do not apply to a plaintiff's claim are also subject to demurrer. See id. (conclusory allegation that plaintiff's claim barred by laches, where that equitable defense did not apply to plaintiff's claim, subject to demurrer); see also Quan...

Excerpt: ...ed her Complaint for damages on July 12, 2018 alleging sexual harassment, retaliation, failure to take all reasonable steps to prevent discrimination and harassment, negligent supervision, intentional infliction of emotional distress, quid pro quo sexual harassment, and breach of the covenant of good faith and fair dealing. The plaintiff alleges that the defendant told her that his wife was no longer having sexual relations with him. Authorities:...

Excerpt: ...her than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. As to the release in Section 7.1, please clarify the meaning of the phrase “alleged in the Action” and how it differs from the phrase “alleged in the operative complaint.” Also clarify whether class members are releasing any claims that are unrelated to or do not arise from the allegations in the operative complaint. In s...

Excerpt: ...eferred the matter to arbitration. All court proceedings were stayed pending the arbitration award. On May 3, 2019, the plaintiff filed a motion to vacate and set aside the stipulation and order on the ground plaintiff's counsel mistakenly, inadvertently, and excusably believed the defendant would pay the arbitration fees pursuant to Armendariz. (Code Civ. Proc., § 473.) Counsel says he first became aware that JAMS would require his client to pa...

Excerpt: ...d the Terms By Confirming Receipt of Equipment That Was Not Received and Failing to Make Payments Thereunder; (4) Plaintiff Was Damaged; And (5) The Contract Was Not Cancelled. Issue No. 2: The Twelfth Cause of Action (Breach of the July 14, 2017 Finance Agreement) Against Vision One, Because There Is No Genuine Issue That: (1) Vision One Ratified Terms of the Contract And/Or is Estopped; (2) The Contract Terms Required Plaintiff to Finance Equip...

Excerpt: ...sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. (Lopez, supra, at p. 604.) Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. (Ibid.) However, even under the Civil Discovery Act's incremental approach, the trial court may impose terminating san...

Excerpt: ...e. Plaintiffs Frank Tansley and Valerie Tansley own a residence located at 24965 Danamaple, Dana Point, CA 92629. Plaintiffs purchased the property in December of 2016. A pre-closing inspection revealed that the upstairs and downstairs floors were sloped and uneven. Plaintiffs retained Defendants in November of 2016 to conduct a geological inspection report. The report was issued on 11/19/16. It concluded that the original slab had not been level...

Excerpt: ...t it contracted with defendant to remodel defendant's shopping center in Tustin and that defendant breached the contract by failing to pay for all services and materials, including numerous changes requested by defendant. An answer to the TAC was filed on 10/10/18. On 4/23/19, plaintiff filed a Doe Amendment, naming Tustin Center, LLC as Doe 11. A jury trial is set on 10/7/19. Plaintiff seeks an order compelling defendant Famouri's Associates to ...

Excerpt: ...ortly after taking possession of the vehicle, Felix experienced the defects listed below. This substantially impaired the use, safety and/or value of the BMW. Defects included:  defective transmission,  defective electrical system,  “any additional complaints made by Plaintiff, whether or not they are contained in the records or any repair orders. [Complaint, ¶10] These defects violated the express written warranties issued by BMW, as...

Excerpt: ...w: On February 5, 2018, Brock Chwialkowski commenced this action against The Vons Companies, Inc., Andrew Barker, and Teresa Benson, alleging the following six causes of action: 1. Discrimination in violation of Fair Employment and Housing Act (FEHA), Government Code section 12940, subdivision (a); 2. Retaliation for disclosure of veteran status in violation of Labor Code section 1102.5; 3. Hostile work environment in violation of FEHA, Governmen...

Excerpt: ...Ret.)) dismissed this case on November 2, 2017. If requested by the parties, a trial court may retain jurisdiction over the parties to enforce a settlement until performance in full of the terms of the settlement. Cal. Civ. Proc. Code § 664.6. “Because of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” Mesa RHF Partners, L.P. v....

Excerpt: ...tion of $900.00 in monetary sanctions against Plaintiff Joseph G. Custer. The case is set for trial on 06/24/19. Moving Parties contend as follows: The subpoenas are defective because they were issued on 5/6/19, with a production date for 5/22/19. However, Defendants were not notified until almost 6:00 pm on 5/17/19, in violation of CCP §2025.270(a). Moreover, because the records subpoenas seek Defendants'' consumer and employee records, Plainti...

Excerpt: ...2024.050(a), on motion of any party, the Court “may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” Further, in exercising its discretion to grant or deny such a request, the Court should consider: (1) The necessity and the reasons for the discovery; (2) The diligence of the party seeking the discovery�...

Excerpt: ...Plaintiff did not oppose the motion substantively. Instead, plaintiff contends that the motion was not properly served or timely noticed – requiring a continuance of the hearing. The pending motion was filed on 05/03/19, but not served upon plaintiff until 05/15/19. The papers were served via regular US Mail. Minimum statutory notice for a motion is 16 court days. CCP §1005(b). When service is made by regular US mail, 5 additional calendar day...

Excerpt: ... entitled to recover costs as a matter of right. The allowed costs are enumerated in CCP § 1033.5(a) and discretionary items are also permitted under § 1033.5(c). Defendant's verified memorandum of costs is prima facie evidence that the costs were proper and necessarily incurred. (Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1486; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.) There is no requirement for the Defendant...

Excerpt: ...th 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 proving by a preponderance of the evidence any fact necessary to its defense. Id. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony r...

Excerpt: ...he obligation to stay the state court action. [Citations.]” “ ‘In exercising its discretion the court should consider the importance of discouraging multiple litigation designed solely to harass an adverse party, and of avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject...