Excerpt: ...(See 2/22/18 minute order.) The FAC “supersedes all prior complaints,” which “cease[] to have any effect either as a pleading or as a basis for judgment.” (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-1131.) Thus, “the filing of an amended complaint moots a motion directed to a prior complaint.” (Id. at p. 1131.) The court declines defendant's request (made at the 2/22/18 hearing and now preserved f...

Excerpt: ...clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Plaintiffs' FAC is not organized in the traditional manner. The FAC alleges 16 causes of action, labeled as “Counts.” Each “Count” is asserted twice, once by each Plaintiff. Defendants demur to both sets of Counts 1 through 16 of the FAC on the ground that the FAC is ambiguous and unintelligible because half of the 32 cou...

Excerpt: ...to each topic (Similar to Form Interrogatory No. 17.1). Plaintiff did not repeat the topics, but used the same format. Code Civ. Proc., § 2030.090 (b) requires a showing of good cause, which has not been shown. Code Civ. Proc., § 2030.090 (a) requires that the protective order motion must be made promptly. Plaintiff propounded the Special Interrogatories (Set Two) on 12/7/17. Defendant did not act promptly, because it waited until 1/9/18 to fil...

Excerpt: ... an ordinary or heightened duty, plaintiff has a single primary right to be free from the harm suffered when defendant allegedly caused plaintiff to fall from the tow truck. That invasion of a single primary right supports one cause of action for negligence. Plaintiff may amend the complaint to allege alternate legal theories and alternate duties of care within that one cause of action for negligence. Defendant shall give notice. ...

Excerpt: ...a Defendants are ordered to meet and confer with Plaintiff and to submit a detaileddeclaration outlining the parties' meet and confer efforts as to each of the issues raised by the demurrer. (Code Civ. Proc., § 430.41.) The Ibarra Defendants shall file the declaration at least 9 court days before the continued hearing date. No further briefing is permitted. Pursuant to Code of Civil Procedure section 430.41(a), effective 01/01/16, before filing ...

Excerpt: ...rst Cause of Action for Breach of Contract The FAC does not adequately allege the existence of a contract. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.) The Complaint alleges that Plaintiff's counsel spoke with Defendant (FAC ¶ 11), and that conversation appears to be basis of the agreement—but there is no allegation counsel had authority to enter into the agreement on Plaintiff's behalf. Even if counsel had authority to enter int...

Excerpt: ...; Advance Transformer Co. v. Super.Ct. (1974) 44 Cal.App.3d 127, 144, and Security Pac. Nat. Bank v. Matek (1985) 175 Cal.App.3d 1071, 1077.) But here, the claim is based on an employment contract, and concerns money paid to Ms. Barrie as a bonus, which was to be treated as income and reported on her W-2. (McCarthy Decl., ¶¶ 2-14, Exs. A-E.) The claim at issue is thus effectively one to recover wages paid to a former employee - which is not a c...

Excerpt: ... Action: Previously, Defendants did not demurrer to the Second and Tenth Causes of Action of the First Amended Complaint. The Tenth Cause of Action has not been re-labeled the Sixth Cause of Action. Code Civ. Proc., § 430.41(b) provides that “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answ...

Excerpt: ... amount here is $87,970.10 and that no multiplier is necessary or appropriate. In arriving at these determinations, the Court has considered the facts and information before it on this motion, evaluated and considered the history of the litigation, and factored in the following: This litigation was not particularly complex and did not involve novel, difficult or complex issues. Nothing about this case suggests it required extraordinary skill – ...

Excerpt: ...ANTED. Moving Party is to reserve a hearing date for the Demurrer, and file and serve on counsel of record and any new parties with the Proposed Demurrer to the Complaint, by March 2, 2018. The Mandatory Settlement Conference currently scheduled for 4/27/18, and the Jury Trial currently scheduled for 6/4/18, are VACATED. All discovery and motion deadlines are CONTINUED pursuant to Code. A Trial Setting Conference is set for April 10, 2018 at 8:45...

Excerpt: ...rs were never provided to Plaintiff in Spanish, even though the terms of the purchases were negotiated primarily in Spanish. Plaintiff seeks to add allegations that, because the Debt Cancellation Agreements are part of the Retail Installment Sales Contracts (“RISC”) for both the Honda and the Nissan, Defendant was required to provide a Spanish translation off the Debt Cancellation Agreements – and that it failed to do so. Plaintiff argues h...

Excerpt: ... San Diego (2010) 184 Cal.App.4th 1422, 1428. Defendant opposes leave on the ground that amendment would be futile because this was a “garden- variety fender bender” and his conduct was not “despicable.” Not surprisingly, Plaintiffs characterize the collision and Defendant's conduct differently. Under the well-settled policy favoring amendment, Plaintiffs shall be given an opportunity to file an amended complaint. Plaintiffs are ordered t...

Excerpt: ...ith 15 days leave to amend. The motion to strike is therefore moot. Defendant's request for judicial notice of the documents labeled A through 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 eval...

Excerpt: ...ctions under Code. Civ. Proc. § 128.5 is also denied. The Notice of Motion failed to identify the parties against whom the sanctions were sought, and the specific type of sanctions requested. Respondent's evidence failed to establish the type of egregious litigation conduct by Petitioner which would support an award of monetary or other sanctions. On its own motion, the court orders Petitioner to show cause why this action should not be dismisse...

Excerpt: ... which states, it has filed for bankruptcy protection in the Central District of California, in case no. 8:17-bk-14545-TA. (See Docket #363, Notice of Stay f. 12/28/17, and attachments thereto, in 2012-594022.) Among the creditors or the participants who were listed in the bankruptcy notice there, included the moving attorneys here (Cornman & Swartz) as well as the plaintiff here (Mission Recruiting LLC). (See id.) This Motion is denied without p...

Excerpt: ... on reply.) Plaintiff contends she gave her password to Brittany Rodriguez, and that Rodriguez may have filled out the agreement online on plaintiff's behalf. However, Rodriguez expressly denies doing so, and more importantly, Roth has shown that on the same day the arbitration agreement was signed using plaintiff's name, someone also electronically filled out a direct deposit form with plaintiff's bank information as well as a W-4 tax form for p...

Excerpt: ...equest for monetary sanctions is not broken down by hourly rate or number of hours spent, resulting in plaintiff's failure to establish a reasonable amount. The court has awarded an amount it considers reasonable. Plaintiff's Motion to Compel Further Responses to Form Interrogatories is granted. Defendant Christina LeBlanc must serve full and complete responses, without objections, to Form Interrogatory #15.1 and 17.1 within 20 days. Plaintiff's ...

Excerpt: ... meet and confer letter to Plaintiff on December 8, 2017. After receiving no response, Defendant again reached out on January 8, 2018, and again received no response. On January 8, 2018, the court signed and filed the stipulated protective order. Only after Defendant filed the instant Motion, did Plaintiff served verified supplemental responses on February 9, 2018. Plaintiff asserts that the Motion is moot because Plaintiff served further respons...

Excerpt: ...ition does not constitute a general appearance unless and untll the court has ruled on defendant's motion to quash. [Hopefully, the defective service will be moot if the petitioner voluntarily agrees to dismiss moving party as discussed at the hearing on the petition.] Moving party to give notice. ...

Excerpt: ...fendant sufficient notice of this ruling in time to file an answer or responsive pleading. While Plaintiff has failed to submit sufficient evidence of “actual delivery” under CCP 417.20, nevertheless Defendant waived the service requirement and consented to the jurisdiction of this court by making multiple general appearances at CMC conferences and by requesting continuances of the haerings and other relief. These apearnces were made by Defen...

Excerpt: ...ost recent known address for the Defendant Vo. The Stipulation indicates that the Defendant received the summons and complaint, however, the Court requests that, any proof of service of the summons and the complaint be filed in the court records, by the Plaintiff's counsel. In addition, counsel shall report if any additional payments were received or are to be credited towards the total amount owed. Otherwise, pursuant to CCP §664.6, Plaintiff's...

Excerpt: ...ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 9.53.1a, p. 9(l)-33.) Code of Civil Procedure section 426.30 clearly states that the compulsory counterclaims are waived only if: “a party against whom a complaint has been filed and served fails to allege in a cross-complaint any related cause of action which (at the time of servin...

Excerpt: .... The Court finds that there are common questions of fact or law. All actions assert causes of action based upon failure to pay all wages owed and failure to provide meal and rest periods, as well as derivative claims. The proposed class definitions in the Olvera and Perez actions overlap. The Olvera class is limited to cooks, and the Perez class of all nonexempt employees necessarily includes cooks. The class periods for the Olvera and Perez cla...

Excerpt: ..., 694; Aguilar v. Lerner (2004) 32 Cal.4th 974, 989.) Petitioner has also demonstrated compliance with the MFAA and that the respondents have waived their right to arbitrate thereunder. (Mudge Decl. at ¶ 18, 19, Exh. 1; Bus. & Prof. Code, § 6201, subd. (a).) Also, the fact that respondents may assert claims against a third party does not vitiate their obligation to resolve their existing professional disputes with petitioner through binding arb...

Excerpt: ...oth the Class Action Settlement Agreement (Settlement Agreement) and the proposed orders omit the provision in the Notice of Pendency of Class Action Settlement and Hearing Date for Court Approval (Notice to Class) that everyone receiving money will be paid in four installments, after defendant makes each payment to the Administrator. The $45,000.00 estimated Administrator fee appears high for a class and settlement of this size. An explanation i...