Excerpt: ...on's outstanding loan obligation. ROA 1075, NOM. GF Capital's Motion for Summary Judgment is GRANTED. The Court SUSTAINS GF Capital's Objection Nos. 4, 5, 8 and 9. ROA 1151, Objections. The Court OVERRULES GF Capital's Objection Nos. 1, 2, 3, 6 and 7. Notwithstanding that the Court overrules the Objection Nos. 1, 2, 3, 6 and 7, the Court notes that the statements therein are irrelevant because Defendants signed the Forbearance Agreement, which ac...

Excerpt: ...s. Plaintiff also provides that upon reviewing Defendant's March 17, 2022 responses to discovery, the termination of an alleged at-will employee was in fact the wrongful termination of an employee under a contract of implied good faith not to terminate without good cause. Defendant Environments for Learning, Inc. v. DBA Montessori on the Lake (“Defendant”) argues that there is an unwarranted delay in seeking leave to amend as Plaintiff's coun...

Excerpt: ...rof. Code § 17200, (2) violation of the California False Advertising Act – Bus. & Prof. Code § 17500, (3) violation of the Uniform Trade Secrets Act – Civ. Code § 3426, (4) conversion, (5) breach of written contract [against Defendant Deihimi], (6) breach of written contract [against Defendant Mai], (7) intentional interference with economic relations, (8) breach of agreements memorialized in writing and of the terms of the stipulation fil...

Excerpt: ...s, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the prevailing party.” Application of Civil Code section 3426.4 “naturally raises three questions: Is the defendant the prevailing party? Was the claim made in bad faith? And what is a reasonable fee?” (Cypress Semiconductor Corp. v. Maxim Integrate...

Excerpt: ...s DENIED. AGA is ordered to file and serve an answer to the TAC within 10 days. Demurrer A claim for intentional infliction of emotional distress must plead the following elements: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of ...

Excerpt: ...tion for Loss of Consortium fail to state facts sufficient to constitute a cause of action and are uncertain. Second Cause of Action for Elder Abuse Defendants contend that Plaintiffs' allegations lack the required specificity to make a claim for fraud in support of the Elder Abuse Cause of Action, and do not allege how, when, where, to whom, and by what means any fraudulent misrepresentations were made. Defendants also contend that Plaintiff fai...

Excerpt: ...ent to the settlement agreement is directed, rather than “amended settlement agreement”, to avoid use of limited Court time and resources. Further, the parties are reminded to properly bookmark their filings. As to the Settlement 1. Plaintiff represents in the Memorandum of Points and Authorities that “[u]pon final approval of the settlement, the other named defendant, Kushagram will be dismissed from the case without prejudice." (ROA 185, ...

Excerpt: ...“(a) The process by which the attendance of a witness is required is the subpoena. It is a writ or order directed to a person and requiring the person's attendance at a particular time and place to testify as a witness. It may also require a witness to bring any books, documents, or other things under the witness's control which the witness is bound by law to produce in evidence.... [¶] (b) A copy of an affidavit shall be served with a subpoen...

Excerpt: ...equest for Judicial Notice is DENIED. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537. Unnecessary Delay: This case has been pending for almost two years. On 2/1/22, the court granted leave to file the Second Amended Cross-Complaint pursuant to stipulation. (ROA 281) Defendant/ Cross-Complainant waited over three months before...

Excerpt: ...nt to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for rescission of the agreement. . . . Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219, provides, “In Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (Rosenthal), our Supreme Court set forth the procedure to be followed ...

Excerpt: ...d, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.�...

Excerpt: ...y, then the party who is determined to be the party prevailing on the contract, whether he or she is the p a r t y s p e c i f i e d i n t h e c o n t r a c t o r n o t , s h a l l b e e n t i t l e d t o r e a s o n a b l e a t t o r n e y ' s f e e s i n a d d i t i o n to other costs. [¶] Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party w...

Excerpt: ...(a).) “Actions or tactics” include, without limitation, “the filing and service of a complaint.” (Code Civ. Proc., § 128.5(b)(1).) The “action or tactic” is “frivolous” within the meaning of the statute, if it is “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5(b)(2).) A “subjective” standard for bad faith applies to a motion under this section, (as ...

Excerpt: ...own 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 . . . cross-defendant . . . has met that burden, the burden shifts to the . . . cross-complainant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” Code of Civil Procedure section 437c, subdivision...

Excerpt: ...h of that duty; (3) a proximate causal connection between negligent conduct and resulting injury; and (4) actual loss or damage resulting from professional's negligence. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463.) A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff's action has no merit, i.e., that, as to each cause of action, one or more...

Excerpt: ...tiffs' Complaint Arises Out of Protected Activity. Defendant seeks to strike Plaintiffs' Complaint on the grounds the action is based on protected speech under Code of Civil Procedure Section 425.16(e)(3) or (4) – “statements made in a place open to the public or a public forum in connection with an issue of public interest” and/or “speech in connection with a public issue or an issue of public interest.” Here, the Complaint filed again...

Excerpt: ...of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete. [¶] (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. [¶] (3) An objection to an interrogatory is without merit or too general. (b)(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040 . ....

Excerpt: ...4 is immaterial to the court's decision. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.) Code of Civil Procedure section 2031.310 provides in part, “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶...

Excerpt: ...r service of a written notice that default judgment has been entered, whichever is earlier. Here, under either section 473, subdivision (b) or 473.5, the motion is untimely. Nonetheless, defendant argues service of summons was never valid, therefore, the time limitations do not apply. “[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. … Under section 473, subdivisio...

Excerpt: ...rike against Plaintiff's First Amended Complaint pursuant to Code of Civil Procedure section 425.16 (the “anti-SLAPP motion”). (ROA 30.) On April 12, 2022, this Court granted the anti-SLAPP motion as to the additional peer review allegation only and gave Plaintiff 10 days leave to amend. (ROA 124.) Defendants have appealed that April 12, 2022 order. (ROA 126.) Defendants contend that their appeal places an automatic stay of this action while ...

Excerpt: ...h 53, 63.) “Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (Civ. Code, § 3294(c)(2)...

Excerpt: ... subdivision (d). The Notice of Motion (Notice), filed on 2-2-22 under ROA 67, states, “This motion is based on the following grounds. First, Cross-Complainants' fifth cause of action for negligent infliction of emotional distress arises from and is based on Cross-Defendants' protected litigation- related activity. Second, Cross-Complainants' sixth cause of action for intentional infliction of emotional distress arises from and is based on Cros...

Excerpt: ... with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties: (a) To hear and determine any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. (b) To ascertain a fact necessary to ena...

Excerpt: ...Roberts v. Sup.Ct. (Weist) (1973) 9 Cal.3d 330, 337. However, a mental or physical exam cannot be compelled where no continuing injury is claimed; e.g., where plaintiff alleges only physical injury or emotional distress in the past. Doyle v. Sup.Ct. (Caldwell) (1996) 50 Ca.App.4th 1878, 1886-1887; The Rutter Group, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8I-3 at 8:1553. In addition, the motion to compel a mental examination shall be granted o...

Excerpt: ...terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).” (Civ. Proc. Code § 2031.310(i).) The court's 04/05/21 order in relevant part states: “No. 16 – This request is granted as to all non-privileged documents, including emails and ESI. Plaintiff is ordered to produce a list of relevan...