Excerpt: ...le pleadings.] The demurrer is Overruled in part and Sustained with 20 days leave to amend in part, for the reasons set forth below. The Court notes that at pp. 12-13 the FAC contains two paragraphs which are both numbered as paragraph 54. The Plaintiff should correct this clerical error in its SAC. Justifiable Reliance Failure to State a Claim Overruled on this ground. Defendant argues that Plaintiff has failed to adequately plead justifiable re...

Excerpt: ...randum thereof, are in writing and subscribed by the party to be charged or by the party's agent: … (3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.” In addition, Civil Code § 1698 (c)...

Excerpt: ..., the amount of the settlement is not “disproportionately low” to make the settlor's financial condition the dispositive issue. See L. C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 749. The Court believes it has sufficient information to assess the settlement, from the parties' papers and the records of this action. There is certainly more scope for MP to have liability for any future medical care for plaintiff, and for non...

Excerpt: ...endant to drill along the side of plaintiff's #3 tooth broke loose and lodged in the portal between the maxilla and sinus cavity. Bijal immediately packed the area and referred plaintiff to an expert who could safely retrieve the broken bur head. The bur was removed the following day. Plaintiff alleges that as a result of the botched extraction, and subsequent remedial procedure, she suffers ongoing physical symptoms. On 01/05/18, this Court gran...

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: ...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: ...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: ...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: ...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: ....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: ...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: ...e from Orange Coast Memorial Medical Center, Kaiser Permanente, Huntington Beach Hospital, and Sea Cliff Healthcare and opined that Defendant Amanda Donohue, D.O. complied with the applicable standard of care at all times and no act or omission on the part of Amanda Donohue, D.O. caused or contributed to Ms. Garcia's death. Brown Dec. ¶¶ 4-7 and 12. Dr. Brown further noted that although Dr. Donohue is associated with California Heart Associates...

Excerpt: ...f has yet to provide responsive documents that are legible and complete documents. Normally, a separate statement would be required, but in this case the court will waive the requirement for the time being as the instances in which pages are illegible or incomplete may be too numerous and cumbersome for Defendant to set forth in detail at this time. Within 10 calendar days after service of notice of this ruling, Plaintiff is ordered to personally...

Excerpt: ...ts in force at the time of Lowery's death “on or about December 27, 2016” that named her as an insured. Plaintiff incorrectly argues that the requested material is protected from discovery byIns. Code §791.13. But the statute expressly permits disclosure in response to a facially valid subpoena. (Ins. Code §791.13(h).) Nor is the statute meant to preclude discovery in a civil action. (Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.Ap...

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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ...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...