Excerpt: ...rsuant to CRC Rule 1.201. The Court hereby orders Plaintiff's counsel to re-file redacted versions of the Petition pursuant to the above rule within five-days of the hearing. As for the arguments, “A civil cause of action . . . generally accrues at the time of the [injury].” [Citation] “That date may be postponed under the delayed discovery doctrine. [Citation.] Under this doctrine, a cause of action does not accrue until the plaintiff disc...

Excerpt: ...icy, is not a proper subject for summary adjudication under CCP §437c(f)(1). Defendant Casa Apartments LP's Objections to Declaration of Robert Closson are sustained. As a result, there is no foundation for the relevant insurance policy and application. While there is testimony within the deposition of defendant Sohi confirming that a document marked as Exhibit 15 is the Application for the 2014-2015 policy he signed, Exhibit 15 is not provided ...

Excerpt: ...v. Superior Court (2006) 139 Cal.App.4th 528, 539, FN 7.) Regarding the AT&T subpoena, the subpoena is not limited to calls/texts to or from plaintiff, which could be relevant to her harassment and wage/hour claims. Responding party also contends that she has the names and phone numbers of at least 30 escorts whom she allegedly personally drove and delivered to moving party's home (Opp at 5:4-7; Guevara Decl., Para. 19); however, the subpoena is ...

Excerpt: ...re sought only on his behalf. Applicable Law Allowable costs must be reasonable and necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5, subd. (c)(2); see Moss v. Underwriters' Report (1938) 12 Cal.2d 266, 274; Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [whether cost item was reasonable and necessary presents question of fact for trial co...

Excerpt: ...indication that the parties, including Plaintiff, expressly agreed to a settlement. Defendant argues that pursuant to principles of contract law, the Court should enforce the settlement. “A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.) However, Defendant's authorities do not assist him in th...

Excerpt: ...h 32, 44-45.) As such, until there is an actual order staying the litigation, this Court may exercise its continuing power to designate this matter as complex. (CRC Rule 3.403(b).) Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790 (“Brock”) and Twentieth Century Fox Film Corp. v. Superior Court(2000) 79 Cal.App.4th 188 (“Twentieth Century”) do not require a different result. Brock explains that a party must take action to co...

Excerpt: ...provides: "When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay." (Sosnick v. Sosnick (1999) 71 Cal.App.4th 1335, 1339; Stubblefield Construction Co. v. City of San Bernardino (19...

Excerpt: ...settlement that includes $7,500 being paid to each of seven allegedly aggrieved employees who are not named plaintiffs in this action, like the other six named plaintiffs who have asserted individual claims for relief. Counsel's assertion that those seven people filed arbitration actions against defendant is insufficient to bring those claims into this case without a pleading having been filed on their behalf. Since a PAGA settlement involves one...

Excerpt: .... As the District has prevailed on the issue of duty to defend, the court cannot grant adjudication in favor of PJHM on these claims. The third cause of action for express contractual indemnity does not seek a declaration regarding PJHM's duty to defend. However, there are triable issues of fact with regard to whether the District waived its right to sue PJHM and as to whether PJHM has a duty to indemnify the District. With regard to the issue of...

Excerpt: ... on February 25, 2019 or any other document that may be recorded in furtherance of foreclosing on the Property at issue until judgment or dismissal of this case. Code of Civil Procedure section 526, subdivision (a)(3) provides that an injunction may be granted: “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the right...

Excerpt: ...t identifies an allegedly unfair business practice and potentially seeks restitution of the premium plaintiffs paid, they state a cause of action. Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal. App. 4th 667, 676. Defendant's arguments that go to the merits of plaintiffs' case have no relevance to this kind of motion. Defendant USAA Casualty Ins. Co.'s unopposed Motion to Bifurcate Punitive Damages and Exclude USAA CIC's Financial Condition is g...

Excerpt: ...ded settlement agreement. Counsel also must provide a red-lined version of any revised papers, including the proposed letter to the aggrieved employees. Although the settlement agreement provides in ¶33 that uncashed checks will be deposited in the California Unclaimed Property Fund in the name of the employees, the cover letter to be sent with the aggrieved employees' PAGA checks provides that any uncashed checks will go to the California Depar...

Excerpt: ...gence): The Sanchez and Benavides decisions do not stand for the broad proposition asserted by defendant that insurers cannot be sued for negligence related to improper claim handling. Sanchez held that an adjuster hired by an insurer owes no duty of care to the insured. Benavidesheld that plaintiff could not recover for negligent claims handling because there was no coverage under the terms of the policy. Further, the element of duty is adequate...

Excerpt: ... to defendant's contentions, plaintiffs adequately allege defendant repeatedly promised plaintiffs that she would rectify the damage caused by the water leakage and promised to pay for and send proper contractors, and that defendant repeatedly failed to do so. (See Complaint ¶¶ 10-32, 59-61.) Plaintiffs also adequately allege that defendant made these promises without the intent to perform. (See ibid.) The mere fact that defendant may have sent...

Excerpt: ...which the attachment is based is one upon which an attachment may be issued; (2) the plaintiff has established the probable validity of the claim upon which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim upon which the attachment is based; and (4) the amount to be secured by the attachment is greater than zero. Cal. Civ. Proc. Code § 484.090(a)(1)-(4). A court may order the issuance o...

Excerpt: ...as commenced would be at odds with the right of a plaintiff to dismiss a case voluntarily and without prejudice set forth in [CCP] section 581, subdivision (b)(1) and subdivision (c), both of which provide that a plaintiff may voluntarily dismiss his or her complaint at any time before the ‘actual commencement of trial.'” (Id. at 1549.) The Court's 3/7/19 order does not prohibit Plaintiff from filing a PAGA claim. Instead, it notes that such ...

Excerpt: ...ther allegations from the Complaint is DENIED. The basis of the motion is evidence outside the confines of the Complaint and not otherwise subject to a request for judicial notice. Notice Notice for the three motions above shall be given by the plaintiff. Order to Show Cause re Sanctions No tentative. Defendant Dao, a self-represented attorney, should be prepared to explain why he has, for the second time, filed a motion months out when there wer...

Excerpt: ...nation, “the party shall obtain leave of court.” Cal. Civ. Proc. Code § 2032.310(a). A motion for an examination under section 2032.310(a) “shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty of any of the person or persons who will perform the examination.” Id. § 2032.310(b). The court shall grant the motion for a physical or mental examination under section...

Excerpt: ...he employee's personnel file is off-limits. In California, discovery is purposefully broad. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and common sense – might (1) be admissible, (2) lead to admissible evidence, or (3) reasonably assist that party in evaluating the case, preparing for trial and/or facilitating resolution. Children's Hospital Central California v. Blue Cross of Cali...

Excerpt: ...exceptions to the general rule that one must be a party to invoke an arbitration agreement: “there are six theories by which a nonsignatory may be bound to arbitrate: (a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.” (Young Seok Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513.) “‘By relying on contract terms in a claim against a nonsignatory ...

Excerpt: ...s not timely. Plaintiffs provide no information as to when the responses/verifications were served, no calculations as to dates, and no legal authority. This motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically; see Code Civ. Proc., §§ 1010.6(a)(4)). Otherwise, the demanding party waives the right to compel any further response to the section 2031.010 ...

Excerpt: ... such, Defendants have no evidence of an “agreement to arbitrate. Accordingly, the Motion is DENIED, without prejudice. Defendants will need to re-file the Motion and properly lay the foundation and establish that Plaintiff signed the Retainer Agreement. The Court SUSTAINS Plaintiff's objection to paragraph 5 of Mr. Falcioni's declaration in support of the Motion. Based on same, Defendants have no evidence establishing that a valid agreement to...

Excerpt: ...37c, subd. (q).) The court does not consider the Declaration of Jeffrey M. David in Support of Reply to Plaintiff's Opposition to Motion for Summary Judgment. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) It appears that Defendant/Cross-Complainant Frank Walter Peters used his “Responses to Defendant, Lab Expresses Separate Statement of Undisputed Facts,” to filed on 5-21-19, as objections. The court OVERRULES these objections bec...

Excerpt: ...obtain leave of court. [¶] (b) A motion for examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any of the person or persons who will perform the examination. . . . .” Code of Civil Procedure section 2032.320, subdivision (a), provides, “The court shall grant a motion for physical or mental examination under Section 2032.310 o...

Excerpt: ... substituted into this case on behalf of Plaintiff; and after his review or the currently-operative First Amended Complaint (“FAC”), he determined certain language in the existing pleading needed to be cleaned up, certain language pertaining to the interrelationship of the Defendants needed to be added and/or clarified, and the evidence in this case gave rise to valid causes of action for Unfair Competition under California Business and Profe...

Excerpt: ...en by submitting the factually devoid discovery responses of Defendant Douglas Fir Holdings, LLC dba Huntington Valley Healthcare Center, there is reason to deny without prejudice to allow Defendant to obtain the necessary evidence to create a triable issue of material fact. As Plaintiff's motion establishes, within days of Defendants Answering the Complaint, Plaintiff served RFAs. Defendant responded on January 4, 2019 and by February 27, 2019 (...

Excerpt: ...“. . . [A] court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face...

Excerpt: ...e aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” Fountain Valley Chateau Blanc Homeowner's Association v. Department of Veteran Affairs (Fountain Valley) (1998) 67 Cal.App.4 th 743, 750-751, states, “At the outset we must confront a serious anomaly in California's procedural law regarding attacks on decisions made by juries...

Excerpt: ... or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but 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.4 th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of ...

Excerpt: ...scadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 445, 459.) Defendant demurs to the second cause of action in Plaintiff's Complaint (filed on 8-1-18) pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). Defendant contends, “. . . Plaintiff's Complaint is replete with conclusory allegations, unsupported by necessary facts and therefore fails to meet the heightened pleading requirements for a ...

Excerpt: ...xpressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4 th 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 Ca...

Excerpt: ...of limitations will not lie where the action may be, but is not necessarily, barred. It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4 th 32, 42; May v. City of Milpitas (2013) 217 Cal.App.4 th 1307, 1324. Plaintiff readily concedes that her complaint was filed outside the applicable two-...

Excerpt: ...Memorandum of Costs seeking $ 66,218.74 in costs. See, Memo of Costs. If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper, unreasonable or unnecessary. Benach v. County of Los Angeles (2007) 149 Ca...

Excerpt: ...ubject to judicial review as a general rule. (Moncharsh v Heily & Blase (1992) 3 Cal.4th 1, 6, 10–11.) More specifically, courts may not review the validity of an arbitrator's reasoning or the sufficiency of the evidence supporting the arbitrator's award. (Id. at 11.) Judicial review of an arbitration award is limited exclusively to the statutory grounds for vacating or correcting the award. (Id. at 27– 28.) Plaintiffs contend that the arbitr...

Excerpt: ...bbins (2010) 182 Cal.App.4 th 204, 228. The memorandum must include a supporting declaration affirming that the costs were reasonable and necessarily incurred. CRC 3.1700(a)(1). If the items in the cost bill appear on their face to be proper (by comparing the cost bill to the list of recoverable costs in CCP §1033.5), the verified memorandum of costs is prima facieevidence of their propriety. The burden then rests with the party seeking to tax c...

Excerpt: ...ed or until such earlier time as the court deems appropriate. Heritage Provider Network, Inc. v. Superior Court (2008) 158 Cal.App.4th 1146, 1152. However, during the stay, the court retains vestigial powers over the matters submitted to arbitration. Finley v. Saturn of Roseville (2004) 117 Cal.App.4th 1253, 1258. The court may refuse to enforce a valid arbitration agreement if it determines that the party asserting the right to arbitrate has wai...

Excerpt: ...be granted. (See Alcal Roofing & Insulation v. Sup. Court (1992) 8 Cal.App.4th 1121, 1127 [in contested case, a “party may not both seek confirmation of a settlement agreement and withhold it from nonsettling defendants on grounds of confidentiality.”], and J. Allen Radford Co. v. Sup. Court(1989) 216 Cal.App.3d 1418, 1423–1424 [while parties were free to maintain confidentiality of sliding scale recovery agreement, they could not claim a p...

Excerpt: ...ly been declared vexatious litigants by the U.S. Bankruptcy Court, the U.S. 9 th Cir. Court of Appeals, and the U.S.D.C. for Central Dist. of California. Plaintiff more than meet the minimum for being declared vexatious litigants pursuant to CCP §§ 391(a)(1), (2), and (4). Plaintiff Yang shall be deemed a vexatious litigant pursuant to this motion. Although Plaintiff Sui was already determined to be a vexatious litigant in OCSC Case No. 30-2012...

Excerpt: ...ns. The court will consider this issue at a later time. Motion No. 2: Individual Defendants' Motion to Strike is DENIED without prejudice. CRC Rule 3.1322 (a) provides that “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” This Motion...

Excerpt: ...at the party will comply with the particular demand, a representation that the party lacks the ability to comply, and/or an objection to the particular demand. Plaintiff's statements of compliance do not state she “will” comply, but given that the production has already taken place and Defendant did not move on this deviation from Section 2031.220, this court will not compel compliance in that respect. Plaintiff's previous discovery responses...

Excerpt: ...d December 2014 and December 2015. Defendant may redact any information that deals exclusively with peer review of the physician's medical performance and suggestions for improvement as to medical care. While defendant's supplemental privilege log filed with the parties' Joint Statement fails to comply with the court's order, it is apparently sufficient for the parties' purposes. Yet the log still fails to establish that the performance monitors ...

Excerpt: ...fied under modern discovery procedures.” (Ibid.) 1st cause of action, elder abuse The complaint states facts sufficient to constitute this cause of action. (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396 [elements].) It sufficiently alleges defendant's responsibility for meeting the elder's basic needs (Compl. ¶¶ 13-14 & 20); defendant's knowledge of conditions that made the elder unable to provide for basic nee...

Excerpt: ...e Court in the Minute Order of 12/10/2018, granting leave to amend (see id., pp. 1 and 4-5). The current pleading will be deemed stricken, once a corrected pleading is on file. (CCP § 436.) The Court finds that the current pleading is not in conformity with the Court's previous order. Plaintiff was directed to attach all exhibits to the new pleading which has not happened. Also, pursuant to CRC 3.1110(f), electronic exhibits should include elect...

Excerpt: ...e Court in the Minute Order of 12/10/2018, granting leave to amend (see id., pp. 1 and 4-5). The current pleading will be deemed stricken, once a corrected pleading is on file. (CCP § 436.) The Court finds that the current pleading is not in conformity with the Court's previous order. Plaintiff was directed to attach all exhibits to the new pleading which has not happened. Also, pursuant to CRC 3.1110(f), electronic exhibits should include elect...

Excerpt: ...o. (2012) 207 Cal.App.4th 124, 130–132.) There must also be a causal relationship to the third party conduct that injured the plaintiff, and a feature of the public property that “increased or intensified” the danger from that third party conduct. (Id.) Liability may not be based on the mere failure to provide a warning sign or traffic signal. (Gov. Code §§ 830.4, 830.8; Mixon, supra, 207 Cal.App.4th at 136; Cerna v. City of Oakland (2008...

Excerpt: ... applicable statute of limitations. Section 338(d) applies to “[a]n action for relief on the ground of fraud or mistake.” (See also Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 348 [applying section 338(d) to an unjust enrichment claim based on mistake].) Section 343 provides a four-year statute of limitations on all claims not otherwise provided for in the relevant code sections (Code Civ. Proc., §§ 335 et seq.). Here,...

Excerpt: ...edure section § 2025.450. That section, however, relates to a party deponent. “The code applies by its language only to current officers, directors, managing agents, or employees. Persons formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition unless subpoenaed.” (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398 (internal quotation marks and citations omitted).) Here, it is un...

Excerpt: ... US District Federal Court is GRANTED. Authorities: The Lodestar method, which entails multiplying a reasonable hourly rate by the number of hours the prevailing party reasonably expended on the litigation, is generally used to calculate reasonable attorneys fees. 569 East County Blvd, LLC v. Backcountry (2016) 6 Cal.App.5th 426, 432. The party requesting fees bears the burden of establishing that the requested rates comport with those prevailing...

Excerpt: ...cts and that it is therefore entitled to an award of attorneys' fees in the amount of $ 227,840 and for expert witness fees in the amount of $28,000. But that argument fails, as CCSI is the sole prevailing party on the integrated contracts at issue here. Salsbury argues that under Civil Code §1717, the three JOST contracts should be treated separately, and that it won on two of them and so should be able to recover its fees re same, citing Arntz...

Excerpt: ... “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. “A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language' (Code Civ. Proc., § 425.10, subd. (a)(1)) ...