Excerpt: ...iff Qi. By way of the subject motion, Verde seeks leave to file a FAXC against plaintiff Qi. Rule 3.1324 sets forth the requirements for a motion for leave to amend. Here, the motion fails to state what allegations are to be added and deleted. Therefore, the motion fails to comply with 3.1324(a)(2)&(3). Additionally, the Motion does not include an attached copy of the proposed amended XC. However, on the same day the motion was filed, Verde als...

Excerpt: ...1320(j).) Defendant Fountain Valley Regional Hospital and Medical Center (Defendant Hospital ) demurs to the 1st Cause of Action for Elder Abuse of the First Amended Complaint (FAC) filed by Plaintiff Maria Guadalupe Torres. Standard for Demurrer In ruling on a demurrer, a court must accept as true all allegations of fact contained in the compla int. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of...

Excerpt: ...ended Complaint using the same reservation number as Defendant's demurrer and motion to strike that are currently pending. As long as any demurrer and/or a motion to strike with respect to the Fourth Amended Complaint is filed and served in compliance with the Civil Procedure Code, they may be heard on May 20, 2024 at 8:30 a.m. in Department N15. Plaintiffs Thomas Phillips; Fashion Island Surgery Center, LLC; and Thomas J. Phillips, M.D. move fo...

Excerpt: ...the defendant's breach and resulting damage.” (Harris v. Rudin, R ichman & Appel (1999) 74 Cal.App.4th 299, 307.) Per the complaint, the parties entered into a Reseller Agreement on January 1, 2019 (Comp. ¶10 & Exhibit 1), which was amended on August 26, 2019 (Comp. ¶17 & Exhibit 1 -A) and again on November 4, 2021 (Com p. ¶18 & Exhibit 1 -B). The complaint includes several allegations of alleged breaches. (Comp. ¶¶39 -49.) Defendant, in t...

Excerpt: ...Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the second cause o f action for negligent infliction of emotional distress on the grounds the cause of action is uncertain and does not plead facts sufficient to state a cause of action. To plead negligent infliction of emotional distress (“NIED”), Plaintiffs must plead 1) the defendant was negligent, 2) the Plaintiff suffered serious emotional distress, and 3) Defendant's negl...

Excerpt: ... to state facts sufficient to constitute the claims. UPCOMING EV ENTS: Status Conference – May 14, 2024 FACTS/OVERVIEW: This is a putative class action for alleged violations of California's consumer protection laws. On May 30, 2019, Plaintiffs Joe Maldonado, Alfredo Mendez, J. Peter Tuma, Jonabette Michelle Tuma, and R oberto Mateos Salmeron, individually and on behalf of all others similarly situated (“Plaintiffs”), filed a Complaint aga...

Excerpt: ...e § 430.10(e) and (f).) “To state a cause of action for breach of contract, a party must plead the existen ce of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. [Citation.] If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body o f the complaint or a copy of the written agreement must be attached and incorpo...

Excerpt: ...e, untrue or misleading advertising.' [Cit ation.]” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370 (Zhang).) “Because the UCL is written in the disjunctive… An act can be alleged to violate any or all of the three prongs of the UCL — unlawful, unfair, or fraudulent. [Citation.]” (Aton center, Inc. v. United Healthcare Inc. Co. (2023) 93 Cal.App.5th 1214, 1248, internal quotation marks omitted.) “The UCL's unlawful prong borrows v...

Excerpt: ... the contract or excuse for nonperformance, the defendant's breach and resul ting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Defendants demur to the breach of contract claim, asserting the “facts pleaded in the Complaint fail to state any specific terms of any such agreement that Defendants breache d, and how Plaintiff fully performed under the terms of the agreement.” (Demurrer 4:22 -25.) Contrary to the a...

Excerpt: ...dicial Council form complaint and alleged a cause of action for intentional tort. (See Complaint, p. 5.) Plaintiffs allege (1) Defendant had a duty to avoid driving a motor vehicle while intoxicated or under the influence of a controlled substance; (2) immediately prior to driving, Defendant chose to consume alcohol/drugs until he was under the influence; (3) the substances severely impaired his physical and mental faculties; (4) he chose to in...

Excerpt: ...ns that Defendant contends are privileged from Plaintiff's SAC. DEMURRER A s an initial matter, the Court notes Defendant is asking the Court to sustain a demurrer to the fourth cause of action for which notice was not properly provided. Defendant did not include the demurrer to the fourth cause of action in Defendant's notice o f demurrer and demurrer. Plaintiff does not address the demurrer to the fourth cause of action in Plaintiff's oppositio...

Excerpt: ...hth, tenth, and elev enth causes of action on the grounds they do not state sufficient facts to constitute a cause of action against Quan/MTC and they are uncertain. (Code Civ. Proc. §§ 430.10(e) and (f).) A demurrer challenges the defects appearing on the face of the pleadin g or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of th...

Excerpt: ...les of Court, rule 3.1345(a)(7).) Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) So, too, is disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, inc...

Excerpt: ...o v. Owens -Corning Fiberglas C orp. (1971) 22 Cal.App.3d 116, 124 -125 [property right required]; Edwards v. City of Los Angeles (1941) 48 Cal.App.2d 62, 67 [lodger has no property right]; see also Compl. Ex. A [hotel receipt].) On the other hand, defendants have not shown plaintiff can not assert a public nuisance. Plaintiff adequately “alleges facts showing special injury to himself in person . . . of a character different in kind from that ...

Excerpt: ...excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Sec. Pac. Bus. Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) The FAC sufficiently alleges the elements of a breach of contract claim. The demurrer to the first cause of action is OVERRULED. Second, Third and Fourth Cause of A ction - Breach of Oral Contract: Commercial Code section 2201(1) states: “Except as otherwise provided i...

Excerpt: ...rel. Allstate Ins. Co. v. Weitzman (2003) 107 Cal.App.4th 534, 5 38 (Weitzman).) The term “qui tam” comes from the Latin expression “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means, “'who pursues this action on our Lord the King's behalf as well as his own'.” (Ibid.) The Insurance Fraud s Prevention Act (IFPA) was enacted in 1993 to combat workers' compensation fraud. (People ex rel. State ...

Excerpt: ...ed Complaint (“TAC”). The BT Defendants' main arguments for each cause of action is that they owed no duty to the decedent, they did not provide alcohol at the event, they did not have constructive knowledge that alcohol was being served at the event, they were not present at the event, and they did not manage or supervise the event. The court disagrees with the BT Defendants that, at this pleading stage, the court can determine that the BT D...

Excerpt: ...t for 4/8/24. The Petition appears to have been prompted by the prior c ourt's ruling on a motion for judgment on the pleadings as to the Third Amended Complaint (“TAC”), a ruling issued on 12/1/23. The court granted the motion as to the second cause of action for negligence, finding that Plaintiffs failed to comply with Code of Civil Procedure section 425.15 and stating the following: “Code of Civil Procedure section 425.15 applies becaus...

Excerpt: ...thin 10 days after service upon the party of written notice of entry of the order.” (Code Civ. Proc., § 1008, subd. (a).) Defendant gave written notice of the court's ruling on defendant's motion for summary judgment on 7 -14 -23. (ROA No. 127.) The instant Motion was filed on 8 -14 -23, more than 10 days after Defen dant gave notice of the court's ruling. (ROA No. 148.) Even if the court were to find the motion timely, the court no longer h...

Excerpt: ...he court did not consider this document. Summary Judgment Standard “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie show...

Excerpt: ... Summary Adjudication of Issues. The motion concerns the follo wing three issues: • No. 1: Whether Defendant ROSAURA DE KUYPER (“Defendant”) breached her fiduciary duties to Plaintiff. • No. 2: Whether Defendant breached her duty of loyalty to Plaintiff. • No. 3: Whether there is no merit to Defendant's third affirma tive defense for failure to mitigate. “‘The elements of a claim for breach of fiduciary duty are (1) the existence ...

Excerpt: ... Complaint filed by Plaintiff JOSE MARTINEZ -DURAN (“Plaintiff” ). The Alternative Motion for Summary Adjudication of Issues is therefore MOOT. The Complaint contains 10 causes of action related to alleged discrimination and unpaid wages by Defendant, Plaintiff's former employer. After showing that Plaintiff faile d to comply with multiple court orders concerning discovery and finding that Plaintiff was not likely to comply with the discove...

Excerpt: ...urden to show any challenged cause of action has no merit. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 -851 [same].) Defendant has “the burden to show that it [is] entitled to judgment with respect to all theories of liability asserted by ” plaintiff. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 717; accord Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 942 [m...

Excerpt: ...efendants' expert witness Carl Mellinger (ROA 334) are OVERRULED. Plaintiff's objections to the declaration of Defendants' expert witness Harvey Kreitenberg (ROA 335) are OVERRULED. Plaintiff's objections to the declaration of Defendant Freitas (ROA 336) are OVERRULED. Defendants' objections to the declaratio n of Plaintiff Chang (ROA 344) are SUSTAINED as to objection no. 10 (hearsay) and OVERRULED as to the remaining objections. Defendants' obj...

Excerpt: ...ove for an order compelling the deponent's attendance and testimony at deposition. The motion must be accompanied by a declaration under Code of Civil Procedure section 2016.040 stating that the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).) Code of Civil Procedure section 2025.410, subdivision (b) provides in part that any deposition taken after the service of a written objec...

Excerpt: ...aud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).) At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Punitive damages cannot be pled in conclusory ...

Excerpt: ...in civil actions.'” (Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 737 –738.) Specifically, in a ctions to enforce the governing documents of a common interest development such as covenants, conditions and restrictions ("CC&Rs"), Civil Code section 5975, subdivision (c) provides that “the prevailing party shall be awarded reasonable attorney's fees and costs.” Code of Civil Procedure section 1032, subdivision (b), ...

Excerpt: ... is taxed in the total amount of $41,089.46, as further discussed b e l ow. Pl aintiff's remaining costs in the total amount of $115,732.31 are granted against defendant Regents only. Plaintiff's 998 offer Plaintiff's Code of Civil Procedure section 998 (section 998) offer to compromise (998 offer) served on Regents on 8/18/17 was valid and effective. The fact that plaintiff obtained a more favorable judgment than his 998 offer is prima facie evi...

Excerpt: ...e of damages is required for default judgment]; see also ROA No. 356 –Heidary Decl., in passim [one -page conclusory declaration].) There is also no affidavit of notice. (See Code Civ. Proc., § 587; Bae v. T.D. Service Co. of Arizona (2016) 245 Cal.App.4th 89, 108, fn. 15.) Even if plaintiff had complied with the for egoing requirements, the request for default judgment would still be denied because the operative first amended complaint (FAC)...

Excerpt: ...se to a request for reasonable accommodation by an employee or app licant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) “Although the interactive process is an informal process designed to identify a reasonable accommodation that will enable the employee to perfo rm his or her job effectively [citation], an employer's failure to properly engage in the process is separate from the fai...

Excerpt: ... defendants filed the instant motion for reconsider ation which is largely the same as the papers filed on 10/18/23. Defective Service of Motion The Proof of Service attached to the motion fails to comply with CCP § 1013b. The proof of service for the motion does not list the electronic service address of the person making the electronic service. Instead, only the business physical address and not the email or electronic service address is pro...

Excerpt: ...ot state the three declarations were served on the LWDA. Was the Orde r Granting Preliminary Approval (ROA 114) served on the LWDA? See ROA 125. Plaintiff must file a proof of service reflecting service of the declarations and the Order Granting Preliminary Approval on the LWDA. 2. How many class members are there? The Is las Declaration (ROA 128, ¶ 13) states there are 1,360 class members. The motion (ROA 127) states in one place there are 1,...

Excerpt: ...1. All demurrers to the first amended complaint based on Civil Procedure Code section 583.210 are overruled; 2. Lake's demurrer to Causes of Action Nos. 6 through 10 based on Labor Code section 2699.3 is overruled; 3. Diamond PEO, BZ Resources, VL Best PEO aka VL PEO, and Skyhigh PEO's demurrers to Causes of Action Nos. 6 through 10 based on Labor Code section 2699.3 are sustained without leave to amend; 4. Lake's demurrer to the first amended ...

Excerpt: ...l be withheld or augmented as provided in this section…[¶] (c)(1) If an off er made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer…(2)(A) In determining whe ther the plaintiff obtains a more favorable judgment, the court or arbitrator shall exclude the post offer c...

Excerpt: ... fee setting inquiry in California ordinarily begins with the “lodestar,” i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM Group).) “The reasonable hourly rate is that prevailing in the community for similar work. The lodesta r figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fe...

Excerpt: ... hearing on March 7, 2024. [ROA ## 69 & 70.] The Non- Attorney Defendants also filed a special motion to strike (antiSLAPP) to the complaint, which is set for hearing on April 18, 2024. Plaintiff filed a first amended complaint on February 14, 2024. [ROA # 98.] The court's ruling analyzes th e interplay and effect of all of these filings by the parties. Under California Code of Civil Procedure section 472: (a) A party may amend its pleading o...

Excerpt: ...ewise time -barred as they arise from the same contract. Defendant co ntends that Plaintiffs' counsel wrote to Defendant on October 1, 2018, outlining the claims they had against Defendant, but that the Complaint in this action was not filed until October 14, 2022, 13 days beyond the four -year statute of limitations imposed by Code of Civil Procedure section 337(a). Plaintiff has not filed an opposition. “A party may move for summary judgmen...

Excerpt: ...an employee (or independent contractor) thereof, who was injured in the course of the work, the burden then shifts to plaintiff to produce evidence raising a triable issue of fact as to application of a Privette exception. It is undisputed that Plaintiff was hired by Defendant to perform housekeep ing work at the subject property and that Plaintiff was a self- employed independent contractor (UMF 3, 7). In the course of completing that work, Plai...

Excerpt: ... the doctrine of issue preclusion, and failure to state suff icient facts. Statute of Limitations A demurrer on limitations grounds 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 b arred. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1232). Under California law, the statute of limitations for a fraud claim is three year...

Excerpt: ...alif. Rules of Court, rule 3.1350(b); Truong v. Glasser (2010) 181 Cal.App.4th 102, 118.) Defendant's separate statement fails to comply with Calif. Rules of Court, rule 3.1350(b). Rather than deny the motion outright (CCP 437c(b)(1); Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875), the court el ects to treat defendant's motion as one for summary judgment only. Defendants fails to meet their initial burden to show the e...

Excerpt: ...ted protective order to the court. If the parties fa il to timely do so, the court will impose a protective order limiting the use of responses to the interrogatories in which a confidentiality/privacy right is claimed to this litigation and requiring that such information be surrendered or destroyed at the conclusion of this litigation. Upon entry of the protective order, Defendant John Marcin is ordered to serve complete, non- evasive further ...

Excerpt: ...party may give notice that he or she will not appear at a law and motion hearing and submi t the matter without an appearance unless the court orders otherwise. The Court must rule on the motion as if the party had appeared.” The Court ORDERS Plaintiff's counsel to appear at the hearing on February 29, 2024. Plaintiff's counsel contends that counsel failed to appear at the May 11, 2023 order to show cause hearing where the instant action was or...

Excerpt: ...der Code of Civil Procedure section 1032. However, Defendants also seek to recover expert witness fees under Code of Civil Procedure section 998. Plaintiff contends Defendants' Code of Civil Procedure section 998 offers were unreasonable. Defendants served a 998 offer of $5,000 on 9/28/20 and a s econd 998 offer of $25,000 on 12/6/21. The second offer was served after Defendants' expert Dr. Kiester conducted an examination of Plaintiff and prepar...

Excerpt: ...hysical and mental condition. (ROA 491, Exs. 1 -4.) Riemann here asserts that because Plaintiff had obtained trial continuances and a temporary stay on certain discovery based on neurosurgeries performed in 2022 and her subsequent recuperation requirements, these subpoenas were justified and appropriate. However, the records sought are plainly confidential records subject to substantial privacy protections. Where privacy rights are at issue in ...

Excerpt: ...earing shall name as respondents all parties to the arbitration, and othe rs bound by the award (Civ. Proc. Code, § 1285), and must set forth the grounds on which the request is made. (Civ. Proc. Code, § 1285.8). The petition must also set forth the substance of the arbitration agreement or have a copy attached, name the arbitra t o r, and set forth or have attached a copy of the award and the arbitrator's written opinion, if any. (Civ. Pro...

Excerpt: ...(Bohrer v. County of San Diego (1980) 104 Cal.App.3d 15 5, 164 [“[a]bsent a special statute, there is no authority for the court to take judicial notice … from a governmental document to establish the cause of death”].) Defendant's Reply Separate Statement (ROA 315) is not authorized and was not considered. (Na zir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) 1st cause of action: elder abuse / neglect. Moving party has not met...

Excerpt: ... to Civ. Proc. Code § 2031.310. As to relevance of d ocuments, “[u]nless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the dis...

Excerpt: ...�lessee,” and Norm Reeves Honda Superstore is identified as “les sor (dealer).” Below that, in a separate area, it states that, “‘Lessor' refers to the Lessor (‘Dealer') named above and Assignee,” which is identified as “Honda Lease Trust.” Pertinent here, paragraph 15 on the first page of the agreement states that “p arties agree that any unresolved disputes shall be submitted to arbitration in accordance with the Arbitrat...

Excerpt: ...Page 7 of 23 an individual, under Code of Civil Procedure section 187. Defendants contend that Mr. D'Al essio is the owner, sole member, manager, president, and alter ego of NHV and VMG; that there is a unity of ownership; that Mr. D'Alessio refers to them interchangeably with himself; that NHV and VMG have not adhered to corporate formalities for years and have been suspended multiple times during this litigation; that Mr. D'Alessio testified h...

Excerpt: ...discovery and disobeying a court order are misuses of the discovery process. (C CP § 2023.010(d) and (g).) Here, Plaintiff failed to provide further responses, produce the component parts, and pay the sanctions within 30 days as ordered by this Court. Plaintiff argues that it has since complied with the 11 -9 -23 order, however, the dec laration does not contest that Plaintiff failed to comply within the 30 days required by the order. Thus, Plai...

Excerpt: ...y must contain an answer with the information sought, an exercise of th e party's option to produce writings, or an objection. Each response must be “complete and straightforward as the information reasonably available to the responding party permits. (Code Civ. Proc., § 2030.220, subd. (a).) “If an interrogatory cannot be ans wered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220 subd. (b).) If a tim...

Excerpt: ...tion 877 provides in pertinent part: “Where a release ... is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co -obligors mutually subject to contribution rights, it shall have the fo llowing effect: [¶] (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the oth...

Excerpt: ...lenges only the legal sufficiency of the affected plead ing, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404 -05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider ...

Excerpt: ...s a cause of action. Hahn v. Mirda (20 07) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720 -21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or v ia proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the plea...

Excerpt: ...h, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; CACI 303.) PSG argues that the Service Contract at issue ended in April of 2018 and that any allegation that the agreement was extended is conclusory. The Court disagrees. The SACC alleges that the Service Agreement was initially drafted to terminate after two years (i.e., in April 2018), but the parties extended the Agreement beyond that initi...

Excerpt: ... of the remainder of the exhibits because they are not relevant to the disposition of the demurrer. (Sweeney v. California Regional Water Quality Control Bd. (2021) 61 Cal.App.5th 1, 1118, fn. 3.) The Court also declines to exercise its discretion to refuse to consider the opposition for being untimely by one day. Defendant demurs to the Complaint a nd the three causes of action asserted therein for: (1) breach of fiduciary duty – failure to u...

Excerpt: ... shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., §430.41, subd. (a)(4).) The Court once again opts to proceed to the merits. On the merits, the demurrer is overruled. Within the demurrer itself Defendant asserts the first cause of action fails as “Plaintiff has not se t out the terms of such contract, nor has any contract been attached that demonstrates a contractual relationship between Plaintiff and any of the p...

Excerpt: ...t are legitimately in dispute and pertinent to the di sposition of the summary judgment motion. (Reid v. Google, Inc.  (2010) 50 Cal.4th 512, 532 -533; accord, Cohen v. Kabbalah Centre Internat., Inc. (2019) 35 Cal.App.5th 13, 20 -21.) Standard for Summary Judgment “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties ' pleadings in order to determine whether, despite their allegations, t...

Excerpt: ...arties' evidentiary objections are as follows. Respondents' objections: • Declaration of Brendan Ba rth (ROA 158): o Overrule 1 -2; Sustain 3 -6 • Declaration of Erin Allgaier (ROA 157) o Overrule 1, 5, 6; Sustain 2 -4 • Declaration of Amy Searls (ROA 156) o Sustain 1 -5 • Declaration of Jessica LaPalme (ROA 155) o Overrule 1; Sustain 2 -7 • Declaration of Ro cky Benoit, MD (ROA 154) o Overrule 1; Sustain 2 -7 • Declaration of Kelly U...

Excerpt: ...tiff filed a separate statement in support of its reply. There is no provision in CCP se ction 437c for a reply separate statement. (Code Civ. Proc., § 437c; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) The Court declines to consider Plaintiff's reply separate statement. Plaintiff's objections to Role's Declaration are overruled. Applicable Law In both summary judgment and summary adjudication proceedings, the pleadings dete...

Excerpt: ...ections. (Jenkins Decl. ¶ 4, Ex. B.) Defen dant initiated the meet and confer process on 11/01/2023 and demanded further responses and responsive documents by Friday, 11/10/2023. (Jenkins Decl. ¶ 5, Ex. C.) One day before that deadline, Plaintiff asked for a 30 -day extension to respond. (Jenkins De cl. ¶ 6, Ex. D.) Defendant compromised by offering an extension to Monday 11/13/2023 —effectively a one- court- day extension. (Jenkins Decl. ¶...

Excerpt: ...plemental Declaration, are sealed. [ROA # 958 -967] St atement of Law “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.) “A record must not be filed under seal without a court orde r. The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.” (Cal. ...

Excerpt: ...rees. CITA provides for “[a]ctual damages, attorney's fees, and costs, and any equitable relief that the court deems appropriate.” (Civ. Code § 1798.93(c)(5), emphasis added.) Thus, the remedies are not all in the hands of the Court. Second, MCM argues that there is no right to a jury trial on this statutory claim because the gist of the relief is equitable, as opposed to at law, comparing it to the unfair competition law and the false a...

Excerpt: ...nwarranted or the required specification of those docume nts is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) With respect to interrogatories, the burden of showing good cause does not exist. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220 -221.) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure...

Excerpt: ... and 28. The request as to Exhibits 2, 4, 5, 15, and 16 is GRANTED. (Evid. Code, § 452(c).) The request as to Exhibit 28, excerpts of a deposition transcript, is DENIED. The deposition excerpts do not fall within any of the categories of which the Court may take judicial notice. The relevant facts are largely undisputed. Plaintiff purchased property located wit hin San Juan Capistrano in 2013 and obtained a policy of title insurance underwritten...

Excerpt: ...(ROA No. 326.) Nonetheless, consistent with the brie fing by the parties, the Court takes judicial notice of the complaints filed in this action, along with the Minute Order dated February 21, 2023, pursuant to Evidence Code section 452, subdivision (d). Thereafter, Plaintiff disputes Defendants' ability to demurrer to the Fifth Cause of Action, asserting the right to demurrer has been waived, pursuant to Code of Civil Procedure section 430.80....

Excerpt: ... of Actions (“ROA”) 649, Declaration of Chris M. Hei kaus Weaver (“Weaver Decl.”), ¶ 9, Ex. 5.) Said Order provides, “[a]s set forth in the tentative ruling adopted herein, the Court abstains pursuant to 28 U.S.C. 1334(c)(1) and allows the Superior Court for the County of Orange, in Case NO. 30 -2018 -00983085 -CU -OE -CJC (‘State Court Action') to complete trial and post- trial matters, but reserves jurisdiction over the discharge o...

Excerpt: ...sustained Jocelyn Plummer's demurrer to the FACC without leave to amend on 2/13/24 . Legal Standard Code of Civil Procedure section 437c(c) states, “(c) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a jud gment as a matter of law. In determining if the papers show that there is no triable issue as to any material f...

Excerpt: ...inent part: “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the prop ounding party deems that any 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 tho se documents is inadequate. [¶] (3) An ...

Excerpt: ...otion. First, Defendants seek to strike the word “Direct” from the caption of the FAC next to the 1st and 3rd causes of action on the grounds Plaintiff has no standing to assert his direct causes of action because the alleged wrongdoings harmed the companies, not Plaintiff. Defendants cannot see k to strike entire causes of action by a motion to strike. Rather, lack of standing should be raised by demurrer as it is a threshold element require...

Excerpt: ...ntiffs' Supplemental Brief p. 5:11). Yet they argue that, the conclusion to be drawn from the decision in Law Finance Group is that a petition to vacate the arbitration award must be filed within 100 days of service of the arbitration award. A response to a petition to confirm must be filed within 10 days of service of the petition to confirm and a timely -filed response may seek the remedy of vacatur. The 10 -day period for a response found...

Excerpt: ...here Bennett breached his duty of fidelity or l oyalty, since Bennett had a legal relationship and owed a duty to Defendant to protect him from risk of harm or death from a third party, which was his co -worker, then later his client. Plaintiff does not address this argument, and thereby arguably concede s Defendant has standing. Notwithstanding the foregoing, “no California case has held that only a client or former client may bring a disqual...

Excerpt: ...ffected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process…” the court may impose monetary, issue or evidentiary sanctions. CCP § 2030.290(c) provides: The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes ...

Excerpt: ...roperly subject to judici al notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or i...

Excerpt: ...e allegations in the Complaint that concern Defendant Sherwood all identify conduct that was part of the exercise of Sherwood's discretion vested in her in her capacity as a public employee. Accordingly, she is not liable for any injury resulting from any act or omission alleged in the Complaint, and amendment would not cure this defect. (Cal. Govt. Code § 820.2.) Plaintiff fails to address this argument at all in opposition to the demurrer. As ...

Excerpt: ...(Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 14041 405.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) “Because a demurrer tests only the legal sufficiency of the pleading, the facts alleged in the pleading are deemed to be true. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1190 [citation omitted].) As to the Trespass cause of action, the disputed issue is ...

Excerpt: ...st cause of action. Defendant's request for judicial notice is denied as unnecessary. See Cal. Prac. Guide, Civil Procedure before Tr ial §9:53.1a (“It is not necessary to ask the court to take judicial notice of materials previously filed in the case; all that is necessary is to call the court's attention to such papers. Such papers, however, are not necessarily admissible evidence. Exc ept for admissions in pleadings, matters stated in ...

Excerpt: ...v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [“A “presentation o f extrinsic evidence is...not proper on a motion for judgment on the pleadings.”] As to the 12th cause of action for Unfair Business Practices, the Court finds the cause of action is not sufficiently pled. Here, Plaintiff alleges that as a result of Defendant's discrimination and retaliation toward Plaintiff and his wrongful termination, which constitutes unfair a...

Excerpt: ...NIED in part. The two motions and arguments are largely duplicative and t hus will be handled together. Plaintiff seeks to compel Defendant Marriot to produce all documents and ESI responsive to Requests for Product (“RFP”) (Set One) Nos 2, 6, 14, and 26. As to Defendant Lerma, Plaintiff seeks to compel him to produce all docu ments and ESI responsive to RFP (Set one) Nos 2, 6, 14, 18, 20, 26, 30, and 32. As to the format of the ESI, Under C....

Excerpt: ...upport of each of these causes of action. S pecifically, the complaint alleges plaintiff Oscar Camarena (plaintiff) and defendants (both of them) entered into a contract by which defendants agreed “to act plaintiff's real estate agent/brokers” with respect to the subject real estate transaction and provide plaintiff with “1% of the purchase price as credit towards plaintiff's closing costs,” and plaintiff agreed to pay defendants for the...

Excerpt: ... element of his negligent misrepresent ation cause of action. (Code Civ. Proc., § 437c, subd. (p)(1) [burden]; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173174 [elements].) Numerous facts in plaintiff's separate statement are not supported by the evidence cited, in particular, Fac t Nos. 7, 13, and 14, where plaintiff's separate statement cites numerous portions of the deposition transcript of Dr. Wakim, which were not provided. As t...

Excerpt: ... extent Cross -Complainant moves for summary adjudication, the Notice of Motion fai ls to comply with California Rules of Court, rule 3.1350, subdivision (b) which provides in pertinent part: “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affir mative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion ...

Excerpt: ... as required by the Rules. (Cal. R. Ct. Rule 3.1354, subd. (b); see Hodjat v . State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8.) The Court also did not consider any fact purportedly in dispute, where the response did not provide “the nature of the dispute and describe the evidence that supports the position that t he fact is controverted.” (Cal. R. Ct. Rules 3.1350, subd. (f)(2); Bacoka v. Best Buy Stores, L.P. (2021) 71 Cal...

Excerpt: ...overy responses. (See Oppositions: 4:2 -12 [ROA Nos. 73, 75 and 79] a nd ¶6 of Reynolds Declarations [ROA Nos. 85, 86 and 87].) Indeed, Plaintiff concedes Defendant's new counsel has “worked diligently in providing code compliant Responses.” (See Replies 2:6 -8 and 5:20 -21 [ROA Nos. 89, 91 and 93].) Nonetheless, dueling req uests for sanctions remain. Pursuant to Code of Civil Procedure section 2030.300, subdivision (d), “[t]he court shal...

Excerpt: ...cial Council.” Id., § 583.410, subd. (b). A court may not dismiss an a ction under section 583.410, subdivision (a), unless the defendant was not served within two years after the action was commenced or the action was not brought to trial, or conditionally settled, within two years after commenced against the defendant. Cod e Civ. 6 Proc., § 583.240, subd. (a), California Rules of Court, rule 3.1340(a). The computation of time for the aforem...

Excerpt: ...n 128.5, filed by Plaintiff on July 21, 202 3, as ROA 285; (5) The “Motion for Sanctions” under Code of Civil Procedure section 128.5, etc., filed by Plaintiff on July 21, 2023, as ROA 290; (6) The “Motion for Reconsideration” filed by Plaintiff on July 21, 2023, as ROA 280; (7) The “Motion to Reconsideration” filed by Plaintiff on December 18, 2023 as ROA 363; and (8) The “Motion to Quash Service of Summons” filed by defenda...

Excerpt: .... A court may strike out any irrelevant, false , or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Code Civ. Proc. § 436. “Irrelevant” matters include: allegat ions not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment reque...

Excerpt: ... burden of showing that a cause of action has no merit if the party has shown that one or mo re elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or crossdefendant has met that burden, the burden shifts to the plaintiff or cross -com plainant to show that a triable issue of one or more material facts exists as to the cause of actio...

Excerpt: ...e in the actions; it may order all the actions consolidated and it may make such orders co ncerning 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 (1995) 32 Cal.App.4th 687, 701.) Where the actions at issue presen t essentially the same or overlapping issues, they should be consolidated and disposed of as a sin...

Excerpt: ...d to stay the action. UPCOMING EVENTS: None FACTS/OVERVIEW: T his is an employment discrimination matter, as well as an individual wage -and -hour class and PAGA action. On September 6, 2023, Plaintiff Elida Martin (“Plaintiff”) filed a Complaint against Defendants Contactability.com LLC dba SmartFinancial and Stephani e Schneider (collectively, “Defendants”). (ROA 2.) The Complaint alleges the following 16 causes of action: 1. Discrimin...

Excerpt: ...atment Process and Mutual Arbitration Agreement” (the “Arbitration Agreement”) and Acknowledgment of the Tenet Health employee handbook (the “Employee Handbook”). (Stip. re Authentication of Arb. Agmt. and Handbook Acknowledgment [Def.'s Evid. at p. 97]; Doe Decl. ¶ 2.) The Arbitration Agreement “covers all disputes relating to or arising out of an employee's employment with the Company or the termination of employment.... Examples o...

Excerpt: ...D pending completion of arbitration. An arbitration review conference will take place in Department CX -101 on November 18, 2024 at 8:30 a.m. Because no prejudice will result from consideration of Plaintiff's untimely, overlong opposition papers, the Court has elected to consider them. EVIDENTIARY MATTERS I. Plaintiff's Initial Objections A. Monica Stombaugh 1. Overrule. 2. Sustain on foundation grounds to the extent she testifies Plaintiff sign...

Excerpt: ...ed to appear for examinati on that was set for 9/13/23. (Hook Decl. ¶¶ 8, 13, Exh. G.) Plaintiff's counsel appears to have objected to Defendant unilaterally setting Plaintiff's deposition. (Hook Decl. ¶ 9, Exh. H.) Plaintiff's counsel also opposed Los Angeles as a location for Plai ntiff's in-person deposition and requested that the parties discuss the option for Plaintiff's deposition to be taken via Zoom. (Id.) Defendant has complied with t...

Excerpt: ...652 (citations omitted).) “By its nature, tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511; see also Everest Invs. 8 v. Whitehall Real Est. Ltd. P'ship XI (2002)100 ...

Excerpt: ...3, Fuentes reached a settlement with Plaintiff for $90,000. (Settlement Agreement attached as Exh. A to Application.) Fuentes then filed an application for a good faith settlement determination under Code of Civil Procedure section 877.6. In response, Garcia filed the instant motion contesting the good faith of the settlement. The party asserting the lack of good faith shall have the burden of proof on that issue. (Code Civ. Proc. § 877.6(d).)...

Excerpt: ... is DENIED. EVIDENTIARY MATTERS The Court incorporates by refe rence the portion of its prior tentative ruling regarding Best Buy's evidentiary objections. The Court DENIES Best Buy's request for judicial notice (ROA 179) as unnecessary. GROUNDS FOR RULING While the Court originally sought further briefing and evidence on the issue of whether Best Buy's counsel actually received an invoice from AAA by email on September 7, 2023, the Court ultima...

Excerpt: ...-1538; see ROA 221.) Plaintiff's evidentiary objection to Dr. Lewandowski's declara tion is overruled. Dr. Lewandowski's evidentiary objections nos. 1 and 2 are overruled; nos. 3 and 4 are sustained. Any party to the action or the witness may bring a motion to quash a subpoena and may request the court to quash it entirely, modify it, o r direct compliance with it upon those terms and conditions as the court shall declare including protective ord...

Excerpt: ...glas Hughes should not be held in contempt for willfully violating sever al Court Orders. 2. Plaintiff moves for monetary and terminating sanctions against Defendants Elena Medo and Adrianne Weir for the spoliation and intentional destruction of evidence by Medo in violation of the Court's TRO and Preliminary Injunction Orders. FACTS/OVERVIEW: This is a trade secret misappropriation case. In the operative Fourth Amended Complaint, filed November...

Excerpt: ...icial notice is granted. Defendants' request for judicial not ice that was included as part of the declaration of Christopher Hoo is denied. (Hoo Decl., at ¶ 17.) Requests for judicial notice should be filed as a separate document. (Cal. Rules of Court, rule 3.1113(l).) Also, this request does not comply with Calif ornia Rules of Court, rule 3.1306. Procedural Issues Plaintiff's opposition suffers from a number of procedural defects. First, Pla...

Excerpt: ...rt shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement 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. (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same...