Excerpt: ...ugh M is granted pursuant Evidence Code §§ 452(c), (d), and (h). 1st cause of action for violation of the HBOR Civil Code Section 2923.6, part of the Homeowners Bill of Rights (HBOR), helps restrict a practice commonly known as “dual tracking,” whereby financial institutions pursue foreclosure while evaluating a borrower's loan modification application at the same time. See Jolley v. Chase Home Finance, LLC (2013) Cal.App.4th 872, 904. Sect...

Excerpt: ...an agreement can be reached that resolves the objections to be raised in the motion...” and file a declaration with their moving papers, pursuant to Code Civ. Proc. § 435.5(a)(3). The statute became effective on 1/1/2018 and therefore was in effect prior to the filing of Defendants' motion. On or before April 10, 2018, Defendants shall efile and serve a declaration that complies in full with Section 435.5(a)(3), confirming that they have met a...

Excerpt: ...t as to the truth and legal interpretation of the document. Request for Judicial Notice: The initial issue is to what extent should the court take judicial notice of the prenuptial agreement? Since the agreement was recorded, the court will take judicial notice of its existence. However, the court cannot take judicial notice of the truth of the contents and the legal interpretation of the agreement. “Judicial notice may not be taken of any matt...

Excerpt: ...t in issue. (CCP § 431.30(b)(1); Adventec Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 627.) The Second Affirmative Defense (Statute of Limitations) is also adequately pled, given the answer properly cites CCP Section 343. (CCP § 458.) Finally, the demurrer fails to specify the allegedly uncertain aspects of answer. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797 [disapproved on other grounds in ...

Excerpt: ...dant owed plaintiff a tort duty as no facts show a special relationship existed. (Walker v. County of Los Angeles (1987) 192 Cal.App.3d 1393, 1399.) And, the claim is barred by judicial immunity, which “bars civil actions against judges for acts performed in the exercise of their judicial functions and … applies to all judicial determinations, including those rendered in excess of the judge's jurisdiction, no matter how erroneous or even mali...

Excerpt: ...) 242 Cal.App.4th 651, 660 (trial court erred by using contents of judicially noticeable complaints to resolve disputed issue on demurrer). The deposition testimony of Plaintiff and Mr. Lee is not the equivalent of the unequivocal written discovery responses that were subject to judicial notice in Bockrath v. Aldrich Chem. Co., Inc. (1999) 21 Cal.4th 71. Defendant generally demurred on several grounds. The Court rejected Defendant's arguments tha...

Excerpt: ...t City of Westminster. Responding Party Plaintiff Tami Piscotty. Ruling Motion 1: Defendant City of Westminster's Demurrer to the First Amended Complaint is OVERRULED. (CCP § 430.10(e), (f).) Plaintiff here alleges that similar acts of retaliation and/or discrimination began in 2008, have occurred with reasonable frequency, and have not acquired a degree of permanence. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798.) Read in the light most f...

Excerpt: ... the loan transaction does not exceed the scope of its conventional role as a mere lender of money.'" (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 63.) Thus, a lender does not owe a borrower a common law duty to offer, consider or approve a loan modification, or to offer the borrower alternatives to foreclosure, or to handle the loan in such a way to prevent foreclosure and forfeiture of property. This Court recognizes tha...

Excerpt: ...that unless properly scheduled (Cusano v. Klein (9th Cir. 2001) 264 F.3d 936, 945- 946). A debtor who files bankruptcy is no longer the real party in interest, and lacks standing to proceed on claims belonging to the bankruptcy estate. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.) Finally, plaintiff failed to show the underlying judgment awarded contractual attorney fees. (See Code Civ. Proc., §§ 685.040, 1033.5(a)(10)(A); ...

Excerpt: ...cause of action for contractual indemnity. “This ruling finally adjudicates this case. The complaint was previously dismissed. (See 10/7/15 requests for dismissal.) Cross-complainant has now obtained judgment on the pleadings on the sole remaining cause of action. “Cross-complainant shall prepare, served, and submit a proposed judgment.” ...

Excerpt: ...s are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). A separate declaration must accompany the motion and must specify: (1) the effect of the amendment; (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 for amendment was not made e...

Excerpt: ...e ambiguous. Its initial responses imposed unilateral limitations. Its supplemental responses do not fully clarify whether other documents responsive to the original, unqualified requests are in its possession, custody, or control. Defendant shall pay $1500 in discovery sanctions to plaintiffs within 30 days. The motion is otherwise DENIED. Requests #1-2, 5-9, 13, 16-20, 23-24, 34-36, 39, & 43. Defendant's supplemental responses fully clarify it ...

Excerpt: ...f met his burden to show the arbitration agreement is too unconscionable to be enforced. (Code Civ. Proc., § 1281.2(b).) Plaintiff showed the arbitration agreement is procedurally unconscionable because it was obtained under duress. (See AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1746 [FAA preserves generally applicable state law contract defenses]; Civil Code, §§ 1567 [unconscionability], 1670.5(a) [duress].) Plaintiff credibly de...

Excerpt: ...iday, 2-16-18. This is not a reasonable meet and confer. There is no obligation to extend the deadline for filing motions to compel. Also, plaintiff's counsel has apparently provided defendant with financial information, but has not yet verified the supplemental answers. Defense counsel gave plaintiff's counsel six days to meet and confer before filing the discovery motions is no reasonable, considering that two of those days fell on Saturday and...

Excerpt: ...nts. There is no conflict of interest, because there is no attorney-client relationship. The In re Baird case is completely unrelated to the issues in this case. The case management order does not create an attorney-client relationship between Attorney O'Connor and the other attorneys in the In re Baird product liability case. There has been no confidential communication between Brenes or the Brenes' clients and Attorney. “Our courts recognize ...

Excerpt: ...tion Costs Petitioner seeks to tax $3,776.23 of the requested $13,240.37 in deposition costs, as excessive and not reasonable or necessary. He takes issue with two items: (1) the charge of $1,876.23 for Respondent's counsel's travel costs for his deposition; and (2) the $2,500 appearance fee for his expert, Dr. Wolfe at deposition. As to the travel costs for Petitioner's deposition, the Court GRANTS Petitioner's request, but in the reduced amount...

Excerpt: ...mination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. … (e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial procee...

Excerpt: ...k v. Children's Hosp. L.A., 237 Cal. App. 4th 1454, 1469 (2015); Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) (hereinafter “Murphy”). Except as specifically granted, Defendant's motion is denied. Although the wage and hour claims may be governed by a three-year statute of limitations, the UCL claim is governed by a four-year statute of limitations. The logical result of granting Defendant's motion would be to require requ...

Excerpt: ...y (2010) 187 Cal.App.4th 175, 180.) Palmer has also failed to demonstrate he is entitled to relief under Code of Civil Procedure section 473 on the ground the judgment is void. (See Code Civ. Proc., § 473, subd. (d).) Palmer baldly contends that since the service of process via publication “did not provide [him with] actual notice” of the lawsuit “as he was living out of state,” this somehow “deprive[s] the court of jurisdiction as to ...

Excerpt: ...n the related case, OCSC no. 2016-00880632, the Court GRANTS in part and DENIES in part, as more specifically set forth in the ruling in the related case. The Court notes that the portions of the documents sought to be sealed are virtually the same, except that the page numbers may be different. With respect to those portions of the record receiving approval for sealing, the Court finds: (1) There exists an overriding interest that overcomes the ...

Excerpt: ... trust petition hearing. Two motions (ROA 275 and 295) were filed by Petitioner Deutsche Bank National Trust Company, solely as Trustee for the Securitized Asset Backed Receivables LLC Trust 2007-BR2 (“Trustee”) and two other motions (ROA 302 and 311) were filed by Non-Party WMC Mortgage, LLC (“WMC”). It appears that both the Trustee and WMC are seeking to seal the same or similar records, so the Court will consider the motions together. ...

Excerpt: ...ice was unable to process documents because the case number did not match the records. Furthermore, the rejection notice is dated 12-1-17, which left judgment creditor with a few more days (until 12/7/17) to file the renewal application with the correct case number before the prior renewed judgment enforcement period expired. However, judgment creditor did not do so, and does not explain why. Finally, judgment creditor cites no authority allowing...

Excerpt: ...tiff has not put all of her medical records from her entire life at issue here. However, Plaintiff has put more at issue in this action than her motion suggests. (See Opp, Ex. A, at 6.2 and 9.1.) The Court thus cannot conclude that discovery here should be limited, as Plaintiff proposes (Motion p. 8), to records concerning Plaintiff's “right toe, right foot, left hip and lumbar spine.” The Court will therefore GRANT the motion in part. The su...

Excerpt: ...tiff has not put all of her medical records from her entire life at issue here. However, Plaintiff has put more at issue in this action than her motion suggests. (See Opp, Ex. A, at 6.2 and 9.1.) The Court thus cannot conclude that discovery here should be limited, as Plaintiff proposes (Motion p. 8), to records concerning Plaintiff's “right toe, right foot, left hip and lumbar spine.” The Court will therefore GRANT the motion in part. The su...

Excerpt: ... provides: “Community property is subject to enforcement of a money judgment as provided in the Family Code.” Family Code section 910 provides: (a) Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a ...

Excerpt: ...al.App.3d 1450, 1453-1455; Code Civ. Proc., § 1032, subd. (a)(4).) The per diem cost for having a court reporter present at the trial is recoverable. (See Code Civ. Proc., § 1033.5, subd. (a)(11); Govt. Code, § 68086, subd. (a); Cal. Rules of Court, rule 2.956(c).) The costs for models, blowups, and photocopies of exhibits, and electronic filing fees are also recoverable. (See Code Civ. Proc., § 1033.5, subds. (a)(13) & (a) (14). While Natash...

Excerpt: ...l address for the Defendant Tran, the clerk therefore served a copy of the 2/23/18 minute order, upon the Plaintiff's counsel electronically on 2/23. The Court also ordered, “Plaintiff shall give notice”; “Clerk gave telephonic notice to the moving party in regards to the tentative ruling and the continued date. Clerk to give written notice to moving party and moving party to notice other party.” (Mins. filed 2/23/18, Clerk's Certificate ...

Excerpt: ...tions moving forward on an agreed-upon date is that it is burdensome under Code of Civil Procedure section 2019.030, subdivision (a)(1) for its employees to have to attend a deposition 10 miles from their place of employment as it disrupts business and the employees “rarely produce any useful information”. This statute does not support Defendants' argument. Defendants' five employees [(1) Huntington Beach Chrysler Dodge Jeep Ram's person most...

Excerpt: ...ation regarding the beneficiary dealerships. Defendants are former employees and a direct competitor. Before the Court this day are four discovery motions seeking further responses. In two months there is a motion for an injunction prohibiting defendants from using information obtained from plaintiff (before or within this litigation) which might qualify as a trade secret. Collectively, it is fair to say that the parties are having information is...

Excerpt: ...nd nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination. (Code Civ. Proc., § 2032.220.) The plaintiff must respond to the demand within 20 days stating that she will comply with the demand as stated, will comply with the demand as specifically modified by the plaintiff, or will refuse, for reasons specified in the response, to submit to the demanded physical examination. ...

Excerpt: ...int is verified, the answer shall be verified.”].) Defendants failed to do so. Defendants concede the error, and have attempted to state a Verified Answer in the Opposition. But an opposition brief is not an Answer – a separate Verified Answer must be filed. Defendants are therefore granted 15 days leave to amend, to file an amended verified answer. Plaintiff is to give notice. ...

Excerpt: ...ecede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5 [not applicable here]. … If the decision of the court, or the verdict of the jury upon the issue of liability so tried shall be against any party on whom liability is sought to be imposed, or if the decision of the court or the verdict of the jury upon any other issue or part thereof so trie...

Excerpt: ...n (1952) 39 Cal.2d 458.) In the case of payment, performance is due at the place where the payment is to be sent. (Hale v. Bohannan, supra, at 39 Cal.2d at pp. 466-68.) The burden is on the moving party to establish the facts to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds. (Fontaine v. Super. Ct. (2009) 175 Cal.App.4th 830, 836.) Here, Defendants fail to meet their burden to show Orange County...

Excerpt: ...es Corp. (1996) 14 Cal.4 th 394, 413. Defendant Alfredo Cervantes is covered by this agreement as he is being sued for conduct within the scope of his agency for defendant AG Seal Beach, LLC. See, Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4 th 1013, 1021. Alternatively, the doctrine of equitable estoppel is applicable as plaintiff Montoya's claims against defendant Alfredo Cervantes are intertwined with plaintiff's cla...

Excerpt: ...Review Hearing is set for September 7, 2018 at 9:00 a.m. Both sides' Requests for Judicial Notice are granted. Based on Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 386-88, and Esparza v. KS Industries, L.P. (2017) 13 Cal. App. 5th 1228, 1243-46, plaintiffs are required to arbitrate their individual, victim-specific claims, recovery on which they will personally retain, but may have the court determine their representat...

Excerpt: ...101. The Court's Research Attorney, will be available to assist the parties in their meet and confer efforts at that time. The Case Management Conference is also continued to March 8, 2018 at 1:30p.m. The Court recognizes that Defendants (the moving parties) have attempted to meet and confer but is concerned by Plaintiffs' lack of responses to those efforts. The Court notes that on 2/23/18, it addressed motions to compel responses from Plaintiffs...

Excerpt: ...a ruling in the plaintiff's favor if no controverting evidence is presented. (ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 613; see also Yelp Inc. v. Superior Court of Orange County (2017) 17 Cal.App.5 th 1, at *13-14.) The statements at issue must also be identified with specificity. (ZL Technologies, supra, 13 Cal.App.5 th at 616.) Plaintiff here has offered, en masse, evidence as to the internet activity which supports her clai...

Excerpt: ...erstate commerce); Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1207 (“there was no evidence in the record establishing that the relationship between [plaintiff] ...and [putative employer] ... had a specific effect or ‘bear[ing] on interstate commerce in a substantial way”); Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 688 (“. . . the employee admitted that he ‘attend[ed] meetings, site visi...

Excerpt: ...' attorney cost breakdowns, an Administrator declaration and invoice, and plaintiffs' declarations to support enhancement requests, must be filed no later than 16 calendar days before the Final Fairness Hearing date, to provide enough time for court review. Plaintiffs should explain why their counsel should be awarded 35% of the settlement amount as attorneys' fees, rather than the 33 1/3% which most plaintiffs' attorneys request in these cases. ...

Excerpt: ...rt OVERRULES objection to ¶ 30 and SUSTAINS all other objections. The Court OVERRULES objections to the Fichter Declaration (ROA 51) and the Newman Declaration (ROA 79). The Court GRANTS Edison's request for judicial notice. (ROA 46.) General Law Where, as here, a motion for prejudgment possession is opposed, the Court may grant the requested relief if it finds each of the following: (A) The plaintiff is entitled to take the property by eminent ...

Excerpt: ... fails for the following reasons. First, the evidence offered by Plaintiff in support of its motion is not “new.” Plaintiff first raised the issue of the escrow agents' alleged knowledge in 2015 (when it made allegations regarding the same in a related action). It has had evidence regarding Lazo's lack of authority to sell the property since at least 2013 (the evidence comes from a 2013 email in Plaintiff's possession). Second, Plaintiff does...

Excerpt: ...inadequate. Plaintiffs' motion simply repeats the arguments they unsuccessfully made to the jury. The jury awarded plaintiffs only $2,000 in damages based on their allegations of numerous, significant problems with the house they purchased. Plaintiffs' Motion for New Trial is denied. Plaintiffs have failed to establish any of the criteria set forth in CCP §657. The award of damages was adequate. CCP §657(5). The evidence was sufficient to justi...

Excerpt: ...cash and a personal check in the amount of $4,100. According to plaintiff, the teller assured her that while the check could not be cashed, it would be immediately accessible as cash upon deposit (ie, no customary hold to see if the check cleared). Not so. The hold apparently put plaintiff in a bind as she needed funds right away to cover her daughter's tuition and other undisclosed matters. Plaintiff became upset, spoke to the branch manager, an...

Excerpt: ...his officer to those for events which occurred on or after 9/30/2011; -For Request No. 2 – excluding materials not in the training file for this officer, such as manuals and other course materials; -For Request Nos. 3 & 4 –limiting production as to any complaints against this officer to those for events which occurred on or after 9/30/2011; For all of the Requests, anything the Court may order produced is to be subject to the terms of the pro...

Excerpt: ...ving papers at 6:12-14. The parties cite Cal. Labor Code § 2699 in support of that proposition. Cal. Labor Code § 2699 does not include that language but reads, in pertinent part: “The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” Cal. Labor Code § 2699(l)(2). The language r...

Excerpt: ... Notice is submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues raised by the Stipulation and/or Plaintiff's Memorandum of Points and Authorities 1. The memorandum of points and authorities states that Plaintiff Miranda filed a similar case against Genex, Case No. 3:17-cv-01438 (USDC, N.Cal.) The parties do not, however, provide any further information regarding the...

Excerpt: ...ine version showing all changes, deletions, and additions shall be submitted as well. Notwithstanding this continuance, the parties are required to appear on March 2 for the status conference in this case. As to the Settlement: 1. For those claims in the operative 4AC that are not part of this Settlement, Plaintiff intends to dismiss certain claims and pursue others. (Settlement ¶¶ 45, 78.) Moreover, on 02/27/18 Defendant filed a motion to cons...

Excerpt: ...led to do so. In the SAC, Plaintiff alleges that he was told that the sale date would be on hold until a decision was made on his LMA, and that he did not learn that his LMA had been denied until after the foreclosure occurred. (SAC ¶¶50, 57.) But he does not allege any material misrepresentations about the status of his LMA, or about the date, time, or status of the foreclosure sale. As Plaintiff has failed to cure the defects in this COA, aft...

Excerpt: ...sible. Going forward, counsel for all parties, and in particular counsel for Plaintiff, are admonished to timely file his pleadings and briefs, consistent with the deadlines established by the applicable rules of civil procedure. II. Defendants' Demurrer to the FAC Defendants Christopher Wallace, Shawn Dua, Arvin Lal, Ankur Garg, and Fit Life Group LLC demur to all 11 causes of action in the First Amended Complaint filed on 12/27/17 by Plaintiff ...

Excerpt: ...nder the circumstances, the Court finds there is a sufficient mistake, surprise, inadvertence or other basis to grant relief. (CCP §473(b),(d)); Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21–22 (a court retains JD to to set aside dismissal). As a separate matter, the Court may not have had the jurisdiction to enter the dismissals in the first place. As Petitioners argue, the bankruptcy court did not send a certified copy of the reman...