Excerpt: ...tatement shall “set[] forth plainly and concisely all material facts that the moving party contends are undisputed.” Rule 3.1350(d) states that the separate statement of undisputed material facts in support of a summary judgment or summary adjudication motion must identify “[e]ach supporting material fact claimed to be without dispute with respect to the cause of action . . . that is the subject of the motion.” Plaintiff's Separate Statem...

Excerpt: ... submitted, a redline version showing all changes, deletions and additions shall be submitted as well. 1. Please provide proof of service of the Settlement Agreement to the LWDA. (Labor Code § 2699(l).) 2. Defendant is to declare whether or not there are any pending PAGA actions or putative or certified class actions with a PAGA claim that overlaps with the claims in this action. 3. Please provide estimates and calculations for Defendant's total...

Excerpt: ...mount for attorney fees and awards this amount, split equally between the two firms. In making this award, the Court has considered all relevant factors. Costs are awarded in the amount of $10,049.78. Plaintiff is awarded an enhancement of $10,000. In making this award, the Court has considered the time and effort Plaintiff expended in prosecution of this action, the benefit conferred on the Class, and all other relevant factors. Pursuant to CCP ...

Excerpt: ...sts for Admissions (Set One) and Request for Monetary Sanctions Defendant's Demurrer to the First Amended Complaint Defendant American Financial Network, Inc.'s Demurrer to the First Amended Complaint is OVERRULED. Defendant's request for judicial notice is GRANTED. (ROA 49.) Defendant contends that Plaintiff Alejandro Pichardo (“Plaintiff”) has impermissibly split causes of action by virtue of filing two separate actions against Defendant. T...

Excerpt: ...m another or to do an act with a positive, active, and absolute disregard of its consequences.'” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412; Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140.) The effect of describing something as willful misconduct is that it is sufficiently opprobrious and culpable to have the legal consequences of an intentional tort. (Mahoney v. Corralej...

Excerpt: ...ntially the same claim as the second cause of action for equitable subrogation. The Court agrees and the demurrer is SUSTAINED without leave to amend. Furthermore, it appears that the dispute in the Underlying Action is no longer pending and Mercury made its last payment to KB Home in 2015, and that Mercury is simply seeking a declaration that it is entitled to recover some or all of the money it has already paid to KB Home with respect to the Un...

Excerpt: ...e a cause of action against this defendant for the reasons discussed in prior hearings. In reviewing the demurrer and the efficacy of the amended complaint in alleging a duty, the court also considered the Biajanka factors. (Biajanka v. Irving (1958) 49 Cal.2d 647, 650.) The defendant shall give notice. ...

Excerpt: ....4th 1422, 1428. Plaintiff shall file and serve the proposed Second Amended Complaint attached as Exhibit A to the McDougall Declaration by March 26, 2018. Plaintiff to give notice. ...

Excerpt: ...et for May 3, 2018. Plaintiff seeks to file amended pleadings in both the lead case and the consolidated case in order to add new defendants, a new cause of action for aiding and abetting, and to add some additional facts. Defendants Avalon, L.P. and Neil and Carol Anenberg (Trustees) do not oppose the filing of the amended pleading but ask that the 9-24-18 trial date be continued or vacated, contending that the new defendants will not be ready f...

Excerpt: ...ly formed. In return, plaintiff and her husband were given a 20% stake in the company. (FAC, ¶8.) The loan had a 12.6% interest rate and defendant has not paid any portion of the principal due and owing, although he has paid interest. (Id., ¶9.) Defendant contends that plaintiff has failed to allege all of the terms of the contract, and has failed to attach a copy of the promissory note, citing Otworth v. Southern Pacific Transportation Company...

Excerpt: ... that its counsel spent 24.1 hours in connection with bringing and prevailing on the special motion to strike and that counsel has spent 7.7 hours in connection with bringing the instant motion for fees. The Court finds that this time is reasonable and that the billing rate of $280/hr. is also reasonable. As a result, these fees are recoverable, as are the costs for filing the motions. ...

Excerpt: ...urt notes that judgment creditor has previously been able to personally serve third party examination notices on Ms. Stovall at an address different from the one listed on the proof of service for this motion. To-wit, this motion was mailed to Ms. Stovall at 1182 Letty Lane, Tustin, CA 92780, whereas third party examination notices were personally served on her at 12681 Newport Avenue, Tustin, CA 92780. The court is thus concerned that Ms. Stoval...

Excerpt: ...omplaint reveals little about the accident which gives rise to this action; the complaint fails to identify where the accident occurred, how the accident occurred, how Deft was negligent in causing the accident, what injuries and damages Plaintiff claims from the accident, etc. The court file reflects two prior Motions to Compel Plaintiff's responses and document production which were taken off-calendar, however, a deposition of Plaintiff is like...

Excerpt: ...ing caption page and notice of opposition. See Cal. Rule of Court 3.1113(d). Plaintiff did fail to include a table of contents and table of authorities, as required by California Rule of Court 3.1113, subdivision (f). Given the nature of the present motion, however, the court will consider the opposition in its discretion. Evidentiary Objections The court declines to rule on the City's evidentiary objections, as none are material to the dispositi...

Excerpt: ... and cross-complainant Prime Concrete Pumping. Under Code Civ. Proc. § 428.50, moving party may file its claims against existing parties and others in a cross-complaint filed before or at the time it files its answer to the cross- complaint against it. In the event that the cross-complaint against the moving party is dismissed before the moving party files its answer and cross-complaint and it is no longer a party, it may renew its motion for le...

Excerpt: ...d (injunction for restraining trespass) and 3 rd (IIED) causes of action, and granting defendants' motion to strike the claim for punitive damages and attorney's fees, with leave to amend. However, the operative pleading for purposes of a special motion to strike is the operative pleading at the time the motion was filed. “Nor may plaintiff amend the complaint before the hearing on the anti-SLAPP motion. [Citation] Rationale: Amendments could f...

Excerpt: ...ed to cause them injury or that he engaged in despicable conduct carried on with a willful and conscious disregard for the safety of others. Ibid. As the court has previously stated, simply taking many paragraphs to allege that the defendant drove while intoxicated is insufficient to warrant punitive damages. See Dawes v. Sup. Ct., 111 Cal.App.3d 82, 90 (1980). Nonetheless, plaintiff's counsel indicates that plaintiff can allege additional facts ...

Excerpt: ...pplicable statute of limitation for the fifth cause of action. Code of Civil Procedure section 338, subdivision (d), is the applicable statute of limitation for the sixth cause of action because it appears to be based on fraud. Code of Civil Procedure section 335.1 is the applicable statute of limitation for the seventh cause of action. (Pugliese v. Superior Court (2007) 146 Cal.App.4 th 1444, 1450.) “ ‘ “A demurrer based on a statute of li...

Excerpt: ...ade secrets. [¶] (b) This title does not affect (1) contractual remedies, whether or not based upon misappropriation of a trade secret, (2) other civil remedies that are not based upon misappropriation of a trade secret, or (3) criminal remedies, whether or not based upon misappropriation of a trade secret.” Civil Code section 3426.8 provides, “This title shall be applied and construed to effectuate its general purpose to make uniform the la...

Excerpt: ...Cal.App.4 th612, 616.) The court finds the facts pled as to these causes of action are not so uncertain that Defendant cannot reasonably respond. Second as to the fifth cause of action, Plaintiff pled sufficient facts showing that he relied on Defendant's misrepresentation (“experienced and knowledgable”) by entering into a contract based on this misrepresentation. (FAC, ¶¶ 10-13.) Third, as to the fifth cause of action, Defendant contends ...

Excerpt: ...tained without substitution of a personal representative after a party has died.” Sacks v. FSR Brokerage, Inc. (1992) 7 Cal. App. 4th 950, 957. Since a ruling on attorney's fees will be part of a judgment, the court is hesitant to move forward with the hearing as presently constituted. ...

Excerpt: ...: The Motion for Judgment on the Pleadings is GRANTED without leave to amend. Introduction: This case has been pending for 3 ½ years. In January 2018, the case trailed for several days. The trial is now re-set for March 19, 2018. Common Law Motion for Judgment on the Pleadings: Although the time has passed for a statutory motion, Defendant may make a common law motion for judgment on the pleadings. “'A motion for judgment on the pleadings may ...

Excerpt: ...r Defendants attempted to meet and confer in good faith seeking an extension of time to respond to the subject discovery before filing the instant motion. Specifically, it appears counsel attempted to come to an agreement as to the extension in time and Defendant's deposition, but counsel for Plaintiffs did not respond within the proposed time, and Defendants had to file the motion by 12-11- 17 [or risk waiving their objections to the discovery]....

Excerpt: ...er or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” The Motion was filed on November 22, 2017, well in excess of the 10 days permitted by Code of Civil Procedure section 1008, subdivision (e). Le Francois v. Goel (35 Cal.4 th 1094, 1107, states, “We hold that sections 437c and 1008 limit the parties' ability to file repetitive motions but do not limit the court's ability, ...

Excerpt: ...tion. (DSS ¶¶ 1-8.) Plaintiffs did not oppose the motion. Thus, the motion for summary judgment is granted. Defendant to give notice. (1) Defendant State of California's motion for summary judgment, or in the alternative, for summary adjudication, is CONTINUED to 5-15-18, Dept. C11, at 2 pm. Counsel for Plaintiffs, attests that: (1) immediately upon being served with this motion, Plaintiffs set a number of depositions in this matter, among them...

Excerpt: ...sel represents there is a breach of an agreement or obligation to pay attorney as to expenses or fees, and that the client has engaged in a conduct such that it is unreasonably difficult for counsel to carry out employment effectively. The motion is unopposed. It also appears that the client will not be prejudiced if the motion is granted since the trial date is not until June 5, 2018. The order will take effect on filing of proof of service upon...

Excerpt: ... Plaintiff to prove by a preponderance of evidence a ground for denial. Plaintiff filed a Notice of Non-Opposition to Defendant's Motion to Compel Arbitration” on 2-27-18. Thus, the motion is GRANTED. The court stays this action pursuant to Code of Civil Procedure section 1281.4. The court sets this case for an arbitration review hearing on 9-7-18 at 9:00 a.m. in Department C19. Plaintiff is to give notice. ...

Excerpt: ... t a l l . (Appleton v. Superior Court (Cook) (1988) 206 Cal.App.3d 632, 636.) The Court ORDERS Cross-Defendant PRELUDE to produce documents responsive to Request Nos. 7, 1, 13, 17, 23 and 25 in compliance with its Response within the next 21-calendar days. The Court ORDERS Cross-Defendant PRELUDE to provide further responses to Request Nos. 8-10, 12, 14-16, 20-22, and 24 within the next 21-calendar days. The Court OVERRULES the objection that th...

Excerpt: ...part, “Within 30 days after service of the requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared . . . .” Code of Civil Procedure section 2033.260, subdivision (a), explains, “The party requesting admissions and the responding party may agree to extend the time for service of a response to...

Excerpt: ...intiff contends that Defendant has failed to comply with the settlement agreement by failing to give these funds to Plaintiff. Here, the transcript of the settlement agreement, attached as Exhibit A to the motion, states, “All remaining proceeds from the sale of the property shall be paid to Plaintiff.” (RT 5:7-12.) The transcript also indicates, “The Court: And that after the deed of trust is paid from the sale's proceeds, plus the costs, ...

Excerpt: ...ffs have not demonstrated any tangible prejudice from the granting of this motion. The Court VACATES the default entered against Moving Party on 11-17-17. Moving Party is to separately file the Motion to Quash, attached as Exhibit 4 to the declaration of Mr. McAndrew, within the next 5-calendar days. The Court SUSTAINS Plaintiffs' objection to Exhibit 1 only. Moving Party is to give notice. ...

Excerpt: ...duty, breach of duty, causation, and damages apply…Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability. [Citation.]” (Burgess v. Superior Court (1992) 2 Cal.4 th1064, 1072.) Proof of negligence requires a showing of duty, breach of duty and causation of injury. (McIntyre v. The Colonies-Pacific, L...

Excerpt: ...Flores v. Kmart Corp. (2012) 202 Cal.App.4th 1316, 1325; Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183. The Court finds that the records supplied by the RJN indicate Plaintiffs filed a proof of claim in connection with the individual defendants' Chapter 11 bankruptcy case, and that the bankruptcy court's “Order On Objections to Claims, entered on July 19, 2017, provides that the claim s disallowed in its entirety. “[T]the allowa...

Excerpt: ...the material allegations of the complaint, including all essential elements of the claims. Advantac Group, Inc. v. Edwin's Plumbing Co., Inc. (2007) 153 Cal.App.4 th 621, 627. Although the defendant should aver “carefully and with as much detail” as possible, allegations should be liberally construed. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384. Since a general denial puts in issue the material allegations of the complai...

Excerpt: ...e Court encourages a review of the theories of fraud in CACI Nos. 1900-1903. Plaintiff should label the claim by the appropriate theory. It appears to be alleging false promise. In order to plead a claim for false promise, the plaintiff must allege some facts which give rise to a reasonable inference that the defendant lacked intent to perform. The mere breach of a promise is not enough to establish promissory fraud (aka false promise). (Riverisl...

Excerpt: ...y is held at a private place, plaintiff must also establish probable cause to believe that the property is in fact located at the private place. CCP §512.010(b)(4). A claim for possession has probable validity where it is “more likely than not” that the plaintiff will obtain a judgment against the defendant on the possession claim. See Code of Civil Procedure §511.090; People v. Superior Court (2002) 27 Cal.4 th 888, 919. To meet this stand...

Excerpt: ...ntrue or misleading advertising.” In the First Amended Complaint (“FAC”), the unfair and/or unlawful conduct alleged by Plaintiffs as the basis of this cause of action was the claimed violations of the HBOR. The only difference in the SAC is that Plaintiff removed the citations to the Civil Code sections comprising the HBOR. However, the wrongful conduct Plaintiff alleges continues to be the conduct that (according to Plaintiffs' prior alle...

Excerpt: ...tained without substitution of a personal representative after a party has died.” Sacks v. FSR Brokerage, Inc. (1992) 7 Cal. App. 4th 950, 957. Since a ruling on attorney's fees will be part of a judgment, the court is hesitant to move forward with the hearing as presently constituted. ...

Excerpt: ...until 2/28 and not served until 3/2/18. As Defendant filed a reply addressing the merits, the Court has elected to consider the Opposition here. However, future failures to comply with the statutory filing and service requirements may prevent consideration of the submission. The Motion also reflects that the OCTA made sufficient efforts to meet and confer, in both letters and an in-person meeting. (Tam Decl. ¶ ¶4-9, Exs. E-K.) OCTA's Separate S...

Excerpt: ...ancial affairs. (Fortunato v. Sup.Ct. (Ingrassia) (2003) 114 Cal.App.4th 475, 480-481.) The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Defendants have done so here. (See Alpert Decl. at ¶ 11.) The requests at issue could thus resu...

Excerpt: ... declaration stating that the moving party contacted the deponent to inquire about the nonappearance.” Code Civ. Proc. § 2025.450(b)(2). The record reflects that, on 11/2/17 (the same day Hayden answered and cross- complained), Plaintiff served a notice for the deposition of Defendant to take place on 11/13/17. Defendant's counsel emailed in response on 11/2/17, stating that he was unavailable on that date and asking Plaintiff to propose 4 or ...

Excerpt: ...S should withhold those documents. The Court is not persuaded by either argument. Most of the requests are so broad that the records sought will likely reveal the identity, diagnosis, prognosis, or treatment of a patient. Further, a “warning” that no private documents are sought is insufficient to protect the serious privacy interests involved here. Moreover, in the face of a serious privacy concern, discovery will not be ordered if the infor...

Excerpt: ...r has withdrawn the subpoena. (See Opp. at p. 3.) Anaheim Capital Partners shall give notice. Motion to Quash Metropolitan Acoustics Subpoena House of Blues Anaheim Restaurant's motion to quash Delia Hauser's subpoena to Metropolitan Acoustics on September 11, 2017, is DENIED as moot. Hauser has withdrawn the subpoena. (See Opp. at p. 3.) House of Blues shall give notice. Motion to Quash Veneklasen Subpoena +3 Anaheim Capital Partners, Arcturus M...

Excerpt: ...ppression, fraud, or malice. Here, Plaintiff alleges Defendants failed to pay it the funds owed per the lien; but Plaintiff fails to allege any facts supporting circumstances of malice, fraud, or oppression. See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation] Not only must there be circumstances of oppression, f...

Excerpt: ...ded complaint within 14 days. 1st cause of action, equitable estoppel. The FAC fails to state facts sufficient to constitute this claim. “A stand-alone cause of action for equitable estoppel will not lie as a matter of law.” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1463; accord Money Store Investment Corp. v. Southern Cal. Bank (2002) 98 Cal.App.4th 722, 732.) 2nd cause of action, injunctive relief. The FAC fails to...

Excerpt: ...r the nature of any right to payment from Durst; specifically, whether Judgment Debtor is an employee of Durst, or if her payments are earnings, in which case the proper collections method is an earnings withholding order. (Ahart, et al., Rutter Group, Enforcing Judgments and Debts, Chapter 6D-3, Sections 6:396 and 6:573; Chapter 6G-5, Sections 6:1422.5 et seq. and 6:1430 et seq.; Chapter 6F- 2, Sections 6:1076, 6:1103 et seq.; CCP 706.020.) The ...

Excerpt: ...aintiff Channry's employment law claims are within the scope of this agreement. Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4 th 394, 413. The burden thus shifted to plaintiff Victoria Channry to establish some ground such that arbitration should not be compelled. Correctional Peace Officers Ass'n v. State of Calif. (2006) 142 Cal.App.4 th 198, 205. Plaintiff Channry has not filed any opposition and/or presented evidence to es...

Excerpt: ......

Excerpt: ...bjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” It is not sufficient to show that the defendant's conduct was negligent, grossly negligent or even...

Excerpt: ...y enforce such a mandatory provision, unless it concludes that enforcing the mandatory forum selection clause would be unreasonable or unfair under the circumstances. The first question is whether there is a suitable alternative forum? The forum selection clause here sets venue of litigation in the courts of New York. But the defendant suggests the New York state courts will not take this matter because it does not rise to the $1 million threshol...