Excerpt: ...ourt will be justified in refusing a party leave to amend his [or her] pleading so that he [or she] may properly present his [or her] case.' ” [Citation.]' (Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158, 263 Cal.Rptr. 473.) Thus, absent a showing of prejudice to the adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. [Citation.]” (Board of Trustees v. Superior Court (2007) 149 Cal.App.4 th 1...

Excerpt: ...e information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. [¶] The court, for good cause shown, may make any order that justice requires to prevent any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following ...

Excerpt: ...-Defendant leave to add new causes of action to the Cross- Complaint. As to the 4 th COA (breach of the covenant of good faith and fair dealing), this claim is not identical to the 1 st COA for malpractice because although they rely, in part, on some of the same set of facts, the damages sought are not identical. (See FAXC, ¶¶15 and 43.) As to the 6 th COA (concealment), this claim is not pled with the required specificity under California law....

Excerpt: ...ct, Division 3 has treated Unjust Enrichment as a separate cause of action. (See Peterson v. Cellco Partnership (2008) 164 Cal.App.4 th1583, 1593: “The elements of an unjust enrichment claim are…”). Additionally, pursuant to Munoz v. MacMillan (2011) 195 Cal.App.4 th 648, (also in the Fourth District, Division 3), to the extent an alternative title is necessary, the claim should be pled as a “quasi-contract.” The Court in Munoz v. MacMi...

Excerpt: ...does not plead any misleading or untrue publiclydisseminated advertising. Therefore, the demurrer is SUSTAINED. Unless Cross- Complainant can establish at the hearing how it can plead a valid claim, the demurrer will be SUSTAINED without leave to amend. (See, Hendy v. Losse (1991) 54 Cal.3d 723, 742 [If a party cannot amend to state a valid cause of action, or the party opposing the demurrer cannot state how a valid cause of action can be pled, w...

Excerpt: ...l.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of inartfully drawn complaints, it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to infor...

Excerpt: ..., plaintiff and Hood agreed to let the listing agent Surterre Properties act in a dual agent capacity. As expressly set forth in the written dual agency agreement, Surterre owed plaintiff/Hood a “fiduciary duty of utmost care, integrity, honesty and loyalty” when dealing with the seller. On 04/18/17, plaintiff/Hood learned from agent Horton that the seller elected another buyer for the property, even though that other offer was actually less ...

Excerpt: ...(See Lim v. The.TV Corp. Int'l (2002) 99 Cal.App.4th 684, 691 [plaintiffs may “correct erroneous allegations of generic terms” or clarify ambiguities].) CUTSA Preemption. Defendants fail to show any of the challenged causes of action sound in trade secret misappropriation or are otherwise preempted by CUTSA. (See Klamath-Orleans Lumber, Inc. v. Miller (1978) 87 Cal. App. 3d 458.) 3rd cause of action, breach of fiduciary duty. The FAC states f...

Excerpt: ...to support this cause of action. In the event, plaintiff does not amend within 15 days, defendants are ordered to file and serve their Answer to the first amended complaint. 2.Motion to Strike MOOT in light of the court's ruling on demurrer. Plaintiff to give notice as to both motions. ...

Excerpt: ...to Exhibits 1-9. (Evid. Code § 452(h).) It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. 1st Cause of Action (Predatory Lending Violations). The FAC does not allege facts to show the loan at issue to be a “covered loan” pursuant to Financial Code § 4970(b). 2nd and 3 rd Causes of Action (Violation of HBOR, Civil Code Section 2923.5). The first and second causes of action are barred by th...

Excerpt: ...ty) The elements of a negligence cause of action are: (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. Ha's cross-complaint does not allege what duty Tran owes to her. Demurrer on this ground is sustained with 15 days leave to amend. Claim is premature Tran contends that the action is premature beca...

Excerpt: ...re duplicative of the fifth cause of action for negligence. [Note that the fifth cause of action is for breach of the covenant of quiet enjoyment, not negligence. Defendants presumably mean the seventh cause of action for negligence.] 6th Cause of Action: Premises liability; 8th Cause of Action: Negligent maintenance of nuisance; 9th Cause of Action: Negligent maintenance of premises. Defendants contend these causes of action duplicative because ...

Excerpt: ... leave to amend a pleading, the moving party must comply with California Rules of Court, Rule 3.1324. California Rules of Court, Rule 3.1324 states in pertinent part: (a) Contents of motion A motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are...

Excerpt: ...use of action of Plaintiff Abusaif's First Amended Complaint is SUSTAINED, with leave to amend, for failure to state facts sufficient to constitute a cause of action (CCP § 430.10(e)) and for uncertainty (CCP § 430.10(f)). Plaintiffs shall file and serve an amended complaint within 10 days. The first cause of action in the Alsuoof First Amended Complaint (“FAC”) is uncertain. First, paragraph 4c is checked, indicating that “Attachment 4c�...

Excerpt: ...ence is time-barred on the face of the complaint, which alleges the accident occurred on 10/12/15 – more than two years before filing. (See Code Civ. Proc., § 335.1 [two-year statute of limitations]; see also Compl. at p. 4 ¶ MV-1.) Defendants' request for judicial notice is DENIED. A company's guidelines are not subject to judicial notice. Defendants shall give notice. ...

Excerpt: ...ndants on two theories of liability: direct liability for negligently entrusting the vehicle to the driver, and vicarious liability as the driver's employer. This results in a redundant complaint with overlapping claims. For example, both of the first two causes of action essentially allege defendant Cary Fischer is liable for negligence because he employed the driver. And all three causes of action allege defendant Cary Fischer is liable for neg...

Excerpt: ... timely filed by Plaintiff, and therefore the First Amended Complaint ceases to perform any function as a pleading. Defendant's Motion for Judgment on the Pleadings as to the First Amended Complaint is therefore MOOT. Defendant is ordered to file and serve an Answer within the next 10 (ten) days. Prevailing party to give notice. ...

Excerpt: ...e the foreclosure sale, but failed to allege tender. (Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 578-79; United States Cold Storage v. Great Western Savings and Loan Association(1985) 165 Cal.App.3d 1214, 1222.) The SAC also fails to plead facts sufficient to support the element of an illegal, fraudulent, or willfully oppressive sale of real property a claim for wrongful foreclosure. (Munger v. Moore (1970) 11 Cal.App.3d 1, 7.) 200...

Excerpt: ...seeks to disclose the Confidential Material has obtained the written consent of the person who designated the Material as Confidential to disclose the Material to such experts or consultants, provided that the person who designated the Material as Confidential shall not withhold consent without a good faith belief that serious harm would result from the Disclosure.” [Emphasis added.] According to defendant, this gives plaintiff the unilateral p...

Excerpt: ... meet and confer declaration under Section 2016.040." CCP § 2016.040 states that "[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." Here, Defense Counsel received a message from Dr. Kvitne's assistant indicating he was not available on June 8, 2018 as noticed in the deposition subpoena. But there is no indication o...

Excerpt: ...the terms of an express warranty she alleges was made by FNB. However, from the evidence and papers submitted, there is no triable issues of material fact as to whether FNB issued an express warranty for the subject vehicle; it did not. Plaintiff has not provided any evidence to the contrary. An ““Express warranty” means: (1) A written statement arising out of a sale to the consumer of a consumer good pursuant to which the manufacturer, dis...

Excerpt: ...provided sufficient evidence to establish that Plaintiff is not likely to prevail on this claim. Specifically, the Notice of Default was sent to Plaintiff on April 5, 2018 and signed and received by Plaintiff's husband on April 16, 2018. (Boulter Dec., ¶ 12 and Loria Dec., ¶¶ 4-5.) Second, Plaintiff claims that Defendant owed Plaintiff a fiduciary duty pursuant to Civ. Code § 2923.1 and breached this duty by failing to provide the NOD to Plai...

Excerpt: ...months after entry of default and on the last day by which Defendants could seek to have default vacated. Defendant concedes he returned to the United States in December of 2017. (See ¶3 of Myong Declaration). Thereafter, Defendant merely indicates he was “trying to catch up on [his] affairs.” (See ¶4 of Myong Declaration). Additionally, while Defendant claims to have been unaware of this action, stating that service of an unrelated matter ...

Excerpt: ...d motion and discovery cutoff dates. Authorities: The Discovery Act imposes two separate “cut-offs” on discovery. Unless otherwise ordered discovery proceedings must be “completed” 30 days before the date initially set for trial and discovery motions must be heard no later than 15 days before the date initially set for trial. CCP § 2024.020(a). A continuance or postponement of the trial does not operate to reopen discovery proceedings. C...

Excerpt: ...of limitation. There is no authority to dismiss the Complaint based on Code Civ. Proc., § 597. Code Civ. Proc., §1048 grants discretion to bifurcate the statute of limitations if “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy. Code Civ. Proc., § 598 states, “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficien...

Excerpt: ...produce all documents responsive to the subpoena, except it may withhold records relating to any employee other than Eric Freeman. (See Code of Civ. Proc., § 1985.6, subds. (b), (j), (k).) Summit shall pay $2,450 in discovery sanctions to defendants within 30 days of notice of this order. (Code Civ. Proc., § 2025.450, subd. (g).) The designated topics and requested documents are relevant to the subject matter of this action. Summit failed to sh...

Excerpt: ...etion of the arbitration. The Court finds there is an agreement to arbitrate between the parties that encompasses Plaintiff's claims. That agreement does not contain a clear and unambiguous delegation to the arbitrator of the gateway issue of enforceability, so the Court will determine whether the agreement is unenforceable for unconscionability. For a gateway delegation clause to be effective, the language of the clause must be clear and unmista...

Excerpt: ...ference re binding arbitration for 1/14/19 at 10 am in Dept. C- 15. Defendants met their burden to show a written arbitration agreement exists that covers plaintiff's claims. (See Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413 [burden]; Basler Decl., ¶¶ 3-9 & Exs. A & C.) Plaintiff has not shown any exception to compelling arbitration or ground for revoking the agreement. (See C...

Excerpt: ...facts that (1) Defendant's opposition papers indicate that Defendant has by now served responses; and (2) Plaintiff chose not to file a reply either contesting that assertion or asserting that the responses are inadequate. Thus, it appears to the Court that Plaintiff is satisfied that the responses are substantially compliant. The remaining issue is sanctions. The Court was not provided with a Proof of Service showing when the responses were serv...

Excerpt: ...2(e).) Mr. Cohen will remain counsel of record for Plaintiff until he files a proof of service indicating that he has served his client with a copy of the signed Order relieving him as counsel. Mr. Cohen will be relieved as counsel of record for Plaintiff effective upon the filing of the proof of service of the signed order upon the client and all parties. (See Cal. Rules of Court, rule 3.1362(e) [“The court may delay the effective date of the ...

Excerpt: ...ared and filed in 2018. Further, Counsel Vitiello substituted in as counsel of record in this case on June 9, 2016. At the February 20, 2018 case management conference, at which Mr. Vitiello appeared telephonically, the Court set the trial in this matter for August 27, 2018. Mr. Vitiello did not file this motion until June 15, 2018. Granting the motion now would prejudice Defendant Bauer International Corporation, and the Court will not entertain...

Excerpt: ...th of the following apply: (1) An answer to a particular request is evasive or incomplete.(2) An objection to a particular request is without merit or too general."C.C.P. § 2033.290(a). CCP § 2033.220 provides as follows: (1) Each answer in the response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits… (2) Each answer shall: (1) Admit so much of the matt...

Excerpt: ...t to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a p.9(l)-33.) “The court shall direct that the party prevailing on any motion ... be awarded the reasonable attorney's fees and costs of making or opposing the motion unless the court finds that the ot...

Excerpt: ...nce; the Court is not reaching the merits of plaintiff's proposed additional causes of action at this time. First, plaintiff has failed to comply in several material respects with Rule 3.1324 of the California Rules of Court (CRC) applicable to motions to amend pleadings. Plaintiff did not attach a redlined copy of the proposed amended pleading reflecting what is proposed to be deleted and added to the pleading, or specify the changes by page, pa...

Excerpt: ...to deny leave in such a case, even if sought as late as the time of trial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564- 565.) Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. (Magpali v. Farmers Group, Inc.(1996) 48 Cal.App.4th 471, 486-488; see P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332,...

Excerpt: ... non-party Todd Kurtin to set aside the judgment entered in this action on March 23, 2018, and for a new trial, are GRANTED pursuant to Code of Civil Procedure §§ 657(1), 663 and 473(d). Upon granting the motion, the Court will sua sponte consolidate for all purposes Kurtin v. Gulfstream Finance, Inc., Case No. 30-2012- 00593758 (already related to this action and assigned to this court as of 02/14/2018) with this action. The Gray 1 action will...

Excerpt: ...efore August 24, 2018. If a revised Settlement Agreement 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 proposed settlement includes a settlement of Plaintiff's PAGA claim, but there is no proof of service of the settlement agreement and motion on the LWDA. (See Labor Code § 2699(l)(2).) In addition, since it was not attached to th...

Excerpt: ... judicially noticed under Evidence Code section 452, subdivision (f) as to the existence of the recorded documents and their legal consequence. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264.) The court may not take judicial notice of the truth of matters stated in the recorded documents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-1118.) The request of judicial notice is denied...

Excerpt: ...ely to affected employee(s) under Labor Code section 1197.1. The motion is DENIED as to the portion of plaintiff's claim for civil penalties under PAGA and Labor Code section 1197.1 that would, if recovered, be allocated between the LWDA and the aggrieved employees. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348.) The Court is inclined to deny without prejudice Defendant's request for a stay of this action pending arbitrat...

Excerpt: ...ple and by way of punishing the defendant.” Civ. Code § 3294. It is not sufficient to allege merely that a defendant “acted with oppression, fraud or malice.” A plaintiff must allege specific facts showing that defendant's conduct was oppressive, fraudulent or malicious. Smith v. Sup.Ct. (Bucher) (1992) 10 Cal.App.4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643. Here Plaintiff has failed to ...

Excerpt: ...umbers 63, 65-71, 77, and 80. Sufficient responses have already been provided. Within 15 days, Defendant Knolls West Enterprises is ordered to provide verified, further responses to numbers 1, 19, 53, 61, 62, 76, and 79, as set forth below. Numbers 1, 19, and 53 In the supplemental responses for numbers 1, 19, and 53, some of the witnesses' contact information provided were to post office boxes. Plaintiff's counsel is understandably concerned tha...

Excerpt: ...e expected to want to conceal their contact information from plaintiffs asserting employment law violations, the state policies in favor of effective enforcement of these laws weigh on the side of disclosure, and any residual privacy concerns could be protected by affording the employees notice and an opportunity to opt out from disclosure, Williams v Superior Court, supra, 3 C5th at 553–555. As this case is not a class action, the authority in...

Excerpt: ...neck, left shoulder, back, and arms, as well as information related to anxiety, fatigue, sleep disruption, and fear of driving, for a period of 10 years prior to 10/27/16 (the accident date), through to present. Medical, billing, imaging, and workers' compensation records relating to the affected body parts and issues are discoverable, as long as they are narrowly tailored as noted above. The requests for sanctions made by both parties are Denied...

Excerpt: ... and Order attached to Opposition.] The defendant seeks monetary sanctions in the amount of $2950. The court finds that the plaintiff acted with substantial justification and that the circumstances make the imposition of monetary sanctions unjust. Authorities: The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expe...

Excerpt: ...ady passed. The statutes setting time limits on discovery should be construed in a way which is consistent with the overall purposes of discovery which are well known. They are intended, among other things, to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and t...

Excerpt: ...came out at a higher price, the Trust backed out of the contract, and then the Trust contracted to sell the property to Jordan Bennett. But when One Stop threatened legal action, the Trust came back to the deal with One Stop and backed out of the transaction with Bennett. However, Bennett proceeded to record a lis pendens. Both prospective buyers have filed suit against the Trust. The Court has consolidated their two cases. The Lead Case In 7/201...

Excerpt: ...prise or excusable neglect to support late claim relief. See, The People ex rel. Department of Transportation v. Superior Court (2003) 105 Cal.App.4 th 39, 44. Third, petitioner Quon's failure to investigate within the claim period is not excusable. See, People ex rel Department of Transportation, at 44. The Viles case is distinguishable as an adjustor advised the injured employee she had one year to bring her claim. There is no evidence of any a...

Excerpt: ...ia Medical Malpractice Voluntary Binding Arbitration Agreement” and “California Voluntary Binding Arbitration Agreement.” (Exhs. B and C to Thacker Decl.) Exhibit B includes the following relevant provisions (emphasis added): Article I: It is understood that any dispute as to medical malpractice (that is, whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incomplete...

Excerpt: ...he hearing to discuss a continued hearing date and briefing schedule. 1. Mr. Escobar's declaration filed in opposition to the motion states that he speaks and reads Spanish and that he did not understand the terms of the employee handbook because it was in English. Mr. Escobar did not state that he speaks and reads only Spanish, and he did not address the level of his reading proficiency, if any, in English. In reply, Defendants submitted a suppl...

Excerpt: ...efendant Horgan's engaging in a proposed initiative relating to gun control constitutes protected activity. See, Mission Springs Water Dist. v. Verjil (2013) 218 Cal.App.4 th 892, 907. But, plaintiff CHB carried its burden that defendant Horgan's initiative was both constitutionally and statutorily invalid. See, Liu, at 752 to 753, City of Needles v. Griswold (1992) 6 Cal.App.4 th 1881, 1892 and penal code sections controlling automatic and semi-...