Excerpt: ...�c performance of that contract. Little v. Pullman (2013) 219 Cal.App.4th 558, 565. The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Id. Defendant carried its burden of proving the existence of a valid arbitration agreement by the preponde...

Excerpt: ...action for (1) breach of equipment Þnance agreement; (2) recovery of possession of personal property; (3) breach of guaranty; and (4) indebtedness, and that they defended this case until on May 16, 2023, Plainti
¯ voluntarily dismissed its Complaint against Defendants. Defendants contend that they are the prevailing party under Code of Civil Procedure section 1032, regardless of whether the action is voluntarily dismissed with or without prejud...

Excerpt: ...Inßiction of Emotional Distress. In OCSC Case No. 23-01321684, styled Lucy Pham Le v. Jin Xiong Liu, et al., Ms. Le asserts a single cause of action for Partition. Both cases are directed at disputes regarding the same property located at 12232 Circula Panorama, Santa Ana, CA. Pursuant to CCP §430.10(c), a defendant may bring a special demurrer to a pleading on the basis “[t]here is another action pending between the same parties on the same ...

Excerpt: ... each cause of action is uncertain and fails to state facts su
¯icient to support a cause of action. The Court notes that the instant demurrer and motion to strike were Þled on 07/25/23 by the A. Nathan Dawood Defendants, prior to the Þling of the FAC on 09/15/23, but it appears that the counsel for the parties met and conferred concerning deÞciencies to the FAC on 07/19/23 by phone, prior to the Þling of the instant demurrer and motion to s...

Excerpt: ...ding, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundi
¯ v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) According to the First Amended Complaint (FAC), Defendant Jennifer White accused Frances McLuen of calling Defendant White a racial slur. (FAC, ¶ 10.) Jennifer White allegedly recorded this interaction and later posted a video of the interaction online on Nextdoor, ...

Excerpt: ..., but do[es] not assume the truth o contentions, deductions, or conclusions o law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, citing Moore v. Regents o Univ. o Cal. (1990) 51 Cal.3d 120, 125.) A demurrer challenges only the legal su
¯iciency o the a
¯ected pleading, not the truth o the actual allegations in the pleading or the pleaders ability to prove those allegations. (Cundi
¯ v. GTE Cal., Inc. (2002) 101 Cal.Ap...

Excerpt: ... memorandum as waiver of all grounds not supported. CRC 3.1113(a). Based upon these grounds, the Court sustains the unopposed demurrer. Although the demurrer is unopposed, the Court Þnds that Plainti
¯ should be given an opportunity to cure the defects in the operative complaint that were raised by Defendant in the demurrer. First Cause of Action – Negligence The statute of limitations for negligence, other than personal injury or property da...

Excerpt: ...r provided.” (Code Civ. Proc., § 1021.) Civil Code section 1717 authorizes an award of reasonable attorney's fees and costs to the prevailing party on contract causes of action. Civil Code section 1717 states: “(a)In any action on a contract, where the contract speciÞcally provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the p...

Excerpt: ... a valid and enforceable arbitration agreement found in Section M(2); that the arbitration provision in the home warranty service plan subjects all of Plainti
¯s' claims to an arbitrator, including on issues related to the applicability or arbitrability of the contract, including any disputes over payments; and that the arbitration provision explicitly delegates all questions of arbitrability to the arbitrator such that questions of whether the ...

Excerpt: ...he following Þndings: [¶] (1) The party has a substantial interest in the action as a whole. [¶] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. . . . (f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motio...

Excerpt: ...), which provides that “summary adjudication shall be granted only if it completely disposes of a cause of action, an a
¯irmative defense, a claim for damages, or an issue of duty.” (Emphasis added.)) The complaint (ROA 2) contains a single cause of action for medical negligence. It alleges that, on December 26, 2021 and thereafter, all Defendants, including the moving Defendant, undertook the care and treatment of the plainti
¯ in connecti...

Excerpt: ...action involving commerce.'” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2] [emphasis in original].) The arbitration provision contained in the Residence and Service Agreement (“RSA”) states that claims including claims for personal injury or wrongful death shall be resolved by binding arbitration “in accordance with the Federal Arbitration Act.” (Zaragova Decl., Ex. B, para. 19.) Plainti
...

Excerpt: ...n, and speculation. Mr. Lamkin states that he conducts “internal investigation into Judgment Debtors” for E-Tail. (Lamkin ¶1) Based on his “investigation,” he submits copies of documents that he obtained from the internet and makes several conclusions as to the alter ego and successor corporation theories. E-Tail states that Lamkin “is not an attorney and presents his declaration as a lay witness.” (Reply at 5:16) E-Tail argues that ...

Excerpt: ... (See Cal. Code Civ. Proc., §437c, subds. ()(1) and (p)(2); Aguilar v. Atlantic RichÞeld Co. (2001) 25 Cal.4th 826, 850-851.) In support o their Motion, Plainti
¯s cite to Deendant's responses to various requests or admission and a corresponding Form Interrogatory No. 17.1. Plainti
¯s contend that Deendant's responses are devoid o actual content, evasive, and demonstrate that Deendant has no evidence to support the a
¯irmative deens...

Excerpt: ...nti
¯ made a reasonable investigation of the condition at issue before proceeding with his work before the concealed hazard exception will apply, and there is no evidence of either requirement. Lastly, Defendant contends that new case law shows that there is no duty to warn when a hazard is open and obvious, particularly when there are alternatives which could have been undertaken. Code of Civil Procedure section 1008(a) provides: “When an app...

Excerpt: ...ad problems with it, he brought it into Ken Grody Ford for repairs. Unhappy with the results, plainti
¯, with the assistance of counsel that specialize in Lemon Law cases, sent a letter dated February 28, 2022, outlining the problems and demanding that Ford repurchase the truck. (See Exh. “5.”) The matter settled pre-litigation. On July 13, 2022, plainti
¯ and Ford Motor Company entered into an agreement that provided that Ford would pay pl...

Excerpt: ...action for negligence, count two of the Þrst cause of action for liability under Civil Code section 846, and the second cause of action for general negligence are without merit as Plainti
¯ intends to Þle an Amended Complaint to remove these causes of action. Still, these causes of action are in the operative Complaint and the court will address them below. I. THE MOTION IS GRANTED AS TO COUNT ONE OF THE FIRST CAUSE OF ACTION AND THE SECOND CA...

Excerpt: ... 418.10(a) provides that a defendant, “on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and Þle a notice of motion… [t]o quash service of the summons on the ground of lack of jurisdiction of the court over him or her. Minimum Contacts A nonresident defendant may not be called upon to defend in a foreign forum unless he or she has minimal contacts with that sta...

Excerpt: ...ogatories and Requests for Production of Documents within 30 days of receiving notice of this ruling. Plainti
¯'s R e q u e s t s f o r Admission to both DAG & Associates, Inc. and FloorIt Financial, Inc. are deemed admitted. Defendants are ordered to pay Plainti
¯ total sanctions of $3,553.20 ($592.20 per motion), or $1,776.60 per Defendant. A party can Þle a motion to compel initial responses to its interrogatories, and its requests for prod...

Excerpt: ...g the discovery sought by the inspection demand pursuant to Code Civ. Proc., § 2031.310(b)(1).] To establish “good cause,” the burden is on the moving party to show both: (1) relevance to the subject matter (e.g., how the information in the document would tend to prove or disprove some issue in the case); and (2) speciÞc facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial...

Excerpt: ... grants Defendant's request to judicially notice its Exhibits 1-4. Objections The Court sustains evidentiary objections nos. 4-7, and 11 to the Declaration of Plainti
¯s' Counsel Deborah Rosenthal. The remainder of the objections by both sides are overruled. Legal Standard Pursuant to Code of Civil Procedure section 526 provides for when an injunction may be granted. Code of Civil Procedure section 526, subdivision (a)(3) provides that an injunc...

Excerpt: ...action against Defendants Gunlei Corporation, Egreen Transport Corporation, Hong Chen, Jing (Amy) Song, Yu Wang (Monica), Wen Chen, Elaine Huang, and Lucy Luo. On 11/04/21, Plainti
¯ Þled a First Amended Complaint (“FAC”), substituting Plainti
¯s William Young and Jennifer Young for Plainti
¯ JBY Enterprises. The FAC alleges causes of action for: 1. Interference with prospective advantage; 2. Breach of contract; 3. Material misrepresentat...

Excerpt: ...l based solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, rule 2.551(a).) “A party requesting that a record be Þled under seal must Þle a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts su
¯icient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1); see Cal. Rules of Court, rule 2.551(b)(2) [m...

Excerpt: ... protective order must issue because “a real possibility of Criminal Action remains open against Defendant.” (Motion, 10:8-9.) Defendant further argues that this is because any information Plainti
¯s seek during discovery will force Defendant to assert his Fifth Amendment rights, and forcing the Court to rule on this many assertions of the Fifth Amendment will be a waste of the parties and the Court's resources. However, as to the status of ...

Excerpt: ...tate a cause of action or discloses a complete defense.” (Id.) The Court assumes “the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal. App. 4th 97, 119.) First Cause of Action – F...

Excerpt: ...ection 387 provides for mandatory and permissive intervention. Section 387, subdivision (d)(1) states the requirements for mandatory intervention: “(d)(1) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisÞed: (A) A provision of law confers an unconditional right to intervene. (B) The person seeking intervention claims an interest relating to the p...

Excerpt: ...n, or undue burden and expense.” (Code Civ. Proc., § 2031.060(b)(5).) This includes orders that: “a trade secret or other conÞdential research, development, or commercial information not be disclosed or be disclosed only to speciÞed persons or only in a speciÞed way.” (Ibid.) CCP § 2017.020 provides that: “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearl...

Excerpt: ...n or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).) “A summary judgment may be granted only where it is shown that the entire ‘action' ‘has no merit.' [Citation.]” (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 834.) There is a three-step analysis for the court to determine a summary judgment motion. (Hawkins v. Wilt...

Excerpt: ...rbug Smart 2, fails because the Smart 2 was not part of the parties contract. TCTs evidentiary objection no. 24 to the Carlos Becerra declaration is OVERRULED. As to the remainder of the objections, the Court need not rule on them as they are not material to a disposition of this Motion. (Code Civ. Proc., § 437c(q).) The sole dispute in this case is whether the term “Jitterbug Smart” in the parties SOW was intended to include the subseque...

Excerpt: ...n from engaging in, committing, or performing, directly or indirectly, as to the four (4) foot wide Strip of Land described in paragraphs 5 through 9 of the amended complaint, from obstructing or interfering with Claudia's access to and use of such Strip of Land for her foot travel egress from the ear of her home at 11592 Desmond Street, Garden Grove, CA 92841 (Lot 35), to her front curb, and ingress from the front curb to the rear of her home, w...

Excerpt: ...ims “aris[e] rom” protected activity in which the deendant has engaged. (Code Civ. Proc., 426.15(b) [deÞning protected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67 I the deendant carries its burden, the plainti
¯ must then demonstrate the claims have at least “minimal merit.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v....

Excerpt: ...28, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or “the rights of parties to enforce an arbitration agreement within the FAAs scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “The party seeking arbitration bears the burden of pr...

Excerpt: ...to June 30, 2023, as well as identiÞcation of each category of patients' responsible parties. Defendant requests a protective order as to these requests, citing privacy concerns for the residents at issue. “In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circum...

Excerpt: ...he basic elements of a negligence action are: (1) The defendant had a legal duty to conform to a standard of conduct to protect the plainti
¯, (2) the defendant failed to meet this standard of conduct, (3) the defendant's failure was the proximate or legal cause of the resulting injury, and (4) the plainti
¯ was damaged as a result of the breach. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; CACI 400. “Premises liability is a form o...

Excerpt: ...1350. Additionally, the proof of service which lists all of the documents served by Verde in connection with the MSJ does not mention that a separate statement was served, even though it appears plainti
¯ received the document because she provided a response. In the motion, Verde seeks summary judgment as to the Complaint Þled by plainti
¯ Ying Qi in which she alleges a single cause of action for Premises Liability against Verde. Verde is alle...

Excerpt: ...ection 340.6, subdivision (a) (section 340.6(a)). (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic RichÞeld Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar) [same]; see also Code Civ. Proc., § 340.6, subd. (a) [applicable one-year statute of limitations].) The TAXC alleges a single cause of action for legal malpractice arising out of cross-defendants' representation of cross-complainant Martha Walters (Martha) in an u...

Excerpt: ...here is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1119; C.C.P. § 437c(c).) Where a defendant is the moving party, it must establish that one or more of the elements of a cause of action cannot be established or that a complete defense exists to the cause of action. (Id.; C.C.P. § 437c(o).) If the defendant meets this burden,...

Excerpt: ...ght of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plainti
¯ has established that there is a probability that the plainti
¯ will prevail on the claim. . . . (2) In making its determination, the court shall consider the pleadings, and supporting and opposing a
¯idavits stating the...

Excerpt: ...v. Code §§ 1717 and 5975(c). (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal. App. 4th 761, 773.) While fees are recoverable, they must be reasonable incurred and are subject to the lodestar method for determination of the proper sum. (PLCM Grp. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) Although there was apparently a contractual agreement between Plainti
¯s and their counsel for a $250/hr. billing rate, Plainti
¯s' counsel in...

Excerpt: ...e statutes, case, and textbooks cited in support of the position advanced.” Failure to include points and authorities supporting each ground for the motion may be treated as an admission that the motion is not meritorious, and as ground to deny it. California Rules of Court, rule 3.1113(a). The motion does not cite to authority to support amending the complaint and does not discuss leave to Þle a Second Amended Complaint. To the extent that Pl...

Excerpt: ...which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities su
¯icient service literature and replacement parts to e
¯ect repairs during the express warranty period.” Civ. Code § 1793.2(A)(3). Plainti
¯ largely just parrots the language in the code, without making any actual factual allegations regarding what authorized service and repair facilities Plainti
¯ presented to ...

Excerpt: ... plainti
¯.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 154.) “[I]n cases involving automobiles or other vehicles, it is su
¯icient to aver that defendant negligently operated the vehicle without alleging how or in what respect it was done.” (Id. at 155.) Likewise, it is su
¯icient to allege damages “as a direct and proximate consequence and result” of the negligence. (Id. at 156.) “[N]egligence and proximate cause m...

Excerpt: ...ement to enter into the contract, second cause o action or negligent misrepresentation, third cause o action or breach o written contract, ourth cause o action or breach o covenant o good aith and air dealing, tenth cause o action or recission and restitution ail, eleventh cause o action or intentional inßiction o emotional distress, and thirteenth cause o action or accounting. The Court rules as ollows: • The Demurrer to ...

Excerpt: ...aint) the Request is denied, on the basis the attached exhibits are not Þle-stamped. As these documents give no indication they were Þled, it is unclear whether they constitute “court records” for purposes of Evidence Code section 452, subdivision (d). The remainder of the request is granted. The doctrine of res judicata has two aspects: claim preclusion and collateral estoppel. People v. Barragan (2004) 32 Cal.4th 236, 252. “The prerequi...

Excerpt: ...822, 830. “An oral contract may be pleaded generally as to its e
¯ect, because it is rarely possible to allege the exact words.” Khoury v. Maly's of California (1993) 14 Cal.App.4th 612, 616. However, the burden of establishing an oral contract exists is on the party alleging breach. Sully v. Kern Drilling Corp. (1954) 126 Cal.App.2d 651, 654. Moreover, there cannot be both an express (written or oral) contract AND an implied contract that c...

Excerpt: ...between the same parties on the same cause of action.” Id. First, defendant Mariners Escrow, named in the FAC, is not named in the Þrst Þled action (OCSC Case No. 30-2017- 00955138), so the parties are not the same. Defendant's arguments about unity of interest between an escrow company and a party litigating liability are not persuasive. (Demurrer at 8.) Second, the causes of action in the Þrst Þled action and the FACare not the same. The ...

Excerpt: ...he Þrst ground and does not reach the second. 1) COA No. 5 – Fraudulent Inducement – Concealment Concealment is, “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact” (Civ. Code § 1710(3).) “To state a claim for fraudulent concealment under California law, a plainti
¯ must allege: “ ‘(1) a misrepresentation (fal...

Excerpt: ...ve a timely response, the following rules apply: [¶] (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010)…[¶] (b) The party propounding the interrogatories may move for an order compelling ...

Excerpt: ...rved on Plainti
¯s counsel at the wrong email address. Plainti
¯ contends Defendant still has not served the moving papers and served and Þled an opposition on the merits. (Mahnke Decl., ¶ 6.) No proof of service has been Þled to show the moving papers were properly served. The Court exercises its discretion to consider the moving papers. The Court notes Plainti
¯s proof of service states the opposition was served on 9/19/2023, the reques...

Excerpt: ...ise, or excusable neglect, or he seeks relief based on the mandatory relief provision of Section 473(b) and his attorney's mistake, inadvertence, surprise, or neglect. The notice and motion only refer to relieve under the discretionary relief provision of Section 473(b), but Grantham attaches a declaration by his attorney, Mr. Iskander, who vaguely claims the default was entered due to his mistake (to the extent it was a mistake) in Þling the an...

Excerpt: ...this motion. The court thus refrains from ruling on the evidentiary objections for that reason and all of the objections shall be considered preserved. Defendant Shana Hernandez specially moves to strike all claims in the First Amended Complaint Þled by Plainti
¯ Harper's Pharmacy, Inc. pursuant to Civil Procedure Code section 425.16 (AntiSLAPP Statute). Standard for Special Motion to Strike (Anti-SLAPP) Civil Procedure Code section 425.16(b) p...

Excerpt: ...ny dispute between Owner and Broker relating to this Agreement, the Property or Owner or Brokers performance hereunder, Owner and Broker agree that such dispute shall be resolved by means of binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association . . . .” (Id. at ¶11.) Defendant does not dispute the existence of the above agreement, her signature thereon, or its application to Plainti
¯...

Excerpt: ...ain circumstances as laid out in Civ. Proc. Code § 2031.310(a). “Unless 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 disc...

Excerpt: ...gatory no. 12.1, GM provided only a cursory response. The party responding to an interrogatory is to make a reasonable and good faith e
¯ort to obtain the information by inquiry to other natural persons or organizations, and has a duty to conduct a reasonable investigation to obtain responsive information and furnish information from all sources under his or her control. (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496...

Excerpt: ...an v. White (2021) 71 Cal.App.5th 358, 371—“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void” (internal quotes and citation omitted).] A defendant is under no duty to respond in any way to a defectively served summons. It makes no di
¯erence that...

Excerpt: ...ehr, asserts that Defendant Thetford's bankruptcy case was discharged on August 28, 2023. The Court notes that there is no proof of service showing that the declaration was properly served. Counsel for Plainti
¯s is admonished to properly serve all future documents Þled with the Court and to Þle proofs of service as required. Despite the failure to properly serve the declaration, the Court takes judicial notice of the fact that Defendant Thetf...

Excerpt: ... Dara Whitworth, Mackenzie Whitworth, and Ryland Whitworth. (ROA 264.) On April 18, 2023, Plainti
¯'s c o u n s e l Timothy Fatone submitted a declaration as an “Opposition to Defendant Ford Motor Company's Motions to Compel Deposition of 3rd Party Witnesses.” Mr. Fatone stated he was not opposing the motion and “My o
¯ice is willing to produce all three witnesses for deposition (Dara, Ryland and McKenzie Whitworth) now that all the parti...

Excerpt: ...ition, but shall do so no later February 8, 2024. Defendant Law O
¯ices of Sunil Shah moves to set aside the default entered on July 25, 2023. (See ROA #256.) Standard to Set Aside Entry of Default or Default Judgment The Civil Procedure Code authorizes the court to “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surpri...

Excerpt: ...on, set one (“RFPs”), nos. 11-19, 20- 23, and 39-48, is granted in part and denied in part. The court sustains Defendants' objection to “outside” in nos. 13 and 17 as vague and ambiguous. The motion to compel further responses is denied to this extent. Otherwise, the motion is granted with the limitation that where information about prior incidents is requested, limit response to incidents that are similar insofar as they involving unauth...

Excerpt: ...su
¯icient evidence to show that Attorney Behle is likely to be a witness governing relevant events. Testimony regarding purported cause for plainti
¯'s termination can be obtained from other sources, and there is no evidence that Behle's testimony regarding the formation and/or value of TEM Capital is necessary or even likely. (Doe v. Yim, supra at 583-584 [“In exercising its discretion to disqualify counsel under the advocate- witness rule,...

Excerpt: ...ved a valid objection under Code o Civil Procedure section 2025.410, ails to appear or deposition, the party giving notice may move or an order compelling the deponent's attendance and testimony at deposition. The motion must be accompanied by a declaration under Code o Civil Procedure section 2016.040 stating that the moving party contacted the deponent to inquire about the nonappearance. Code Civ. Proc. § 2025.450(b)(2). Section 2025.450(...

Excerpt: ....2, 12.1 – 12.7, 14.1, 14.2, and 50.1 – 50.6, without objections within 30 days of service of the notice of ruling. Plainti
¯ Katarzyna Nowocin-Kowalczyk is ORDERED to pay to Defendant Lotus Property Services, Inc sanctions in the amount of $852 (3.3 hours x $240 per hour in reasonable attorney's fees and $60 in motion Þling fees) within 30 days of service of the notice of ruling. Defendant Lotus Property Services, Inc. moves to compel resp...

Excerpt: ...ce camera and system ocused on the area. Site inspections are permissible under Code o Civil Procedure section 2031.010, et seq. Through no ault o Plainti
¯s, they were unable to view/access the surveillance system at the school. While the system is purported to be controlled at a district o
¯ice and not at the school itsel, Deendant stated the camera view may be accessed on-campus through a laptop. This was unable to occur at the origina...

Excerpt: ... June 27, 2023 and denied the notice to deem related. [ROA 45] Also on November 15, 2023, the Naylonnavarette court (C32) issued a minute order and denied her ex parte application to relate the cases based on the minute order issued by the Nguyen court (C18). [2023-1322713, ROA 57] This motion ollowed. As a general proposition, one Superior Court judge is not permitted to reconsider an order o another Superior Court judge. The power o a judge ...

Excerpt: ...ary 1, 2024, at 2:00 p.m. in Department N15. Plainti
¯ Cliq, Inc. f/k/a Cardßex, Inc.'s Motion for An Order that the Truth of Any Matter SpeciÞed in Requests for Admissions to Capital Managers, LLC Be Deed Admitted is CONTINUED to February 1, 2024, at 2:00 p.m. in Department N15. Plainti
¯ Cliq, Inc. f/k/a Cardßex, Inc.'s Motion for An Order that the Truth of Any Matter SpeciÞed in Requests for Admissions to Eventus Holdings, LLC Be Deed Ad...

Excerpt: ...ary 1, 2024, at 2:00 p.m. in Department N15. Plainti
¯ Cliq, Inc. f/k/a Cardßex, Inc.'s Motion for An Order that the Truth of Any Matter SpeciÞed in Requests for Admissions to Capital Managers, LLC Be Deed Admitted is CONTINUED to February 1, 2024, at 2:00 p.m. in Department N15. Plainti
¯ Cliq, Inc. f/k/a Cardßex, Inc.'s Motion for An Order that the Truth of Any Matter SpeciÞed in Requests for Admissions to Eventus Holdings, LLC Be Deed Ad...

Excerpt: ...ate a reply separate statement. Defendant did not obtain prior permission from the court to file a reply to Plaintiffs separate statement. Accordingly, this document was not considered. A 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 judgment as a matter of law. (Code Civ. Proc„ S 437c, subd. (c).) The scope of this ...

Excerpt: ...enant of quiet enjoyment, and 8) nuisance. The court SUSTAINS in part, and OVERRULES in part, the demurrer. Entire FAC as to Plaintiff Hang Vu - SUSTAINED As Kona Kai notes, the FAC names Hang Vu as a Plaintiff but never alleges any facts about Plaintiff Vu. Plaintiffs did not address this issue in any Opposition. Indeed, the first page of the Opposition filed states only "that Plaintiff Tony Kennedy opposes the demurer and motion to strike." As ...

Excerpt: ...ion; and SUSTAINS defendants Bridgemed Solutions ("Bridgemed") and Tara Kupumbat's demurrer to the fourth, eighth, and tenth causes of achon with 20 days leave to amend. Entire Complaint (re Plaintiff's Capacity to Sue) — OVERRULED Defendants contend plaintiff lacks capacity to sue because Plaintiff failed to comply with the statutory requirements to do business in California by obtaining a certificate of qualification as described in Corporati...

Excerpt: ...Servicing, LLC, and PHH Mortgage Corporation, as to plaintiff's 13th cause of action for fraud by concealment / fraudulent misrepresentation, is DENIED. (Code Civ. Proc., S 1008 [authorizing reconsideration].) The only "new" facts set forth in the moving papers are: (1) defendants' filing a notice of ruling as to the 10-13-23 order; and (2) defendants' filing a crosscomplaint. (Exs. 1 and 2 to moving papers.) However, plaintiff has not shown why ...

Excerpt: ...ry Objections The court overrules the Garrett Defendants' evidentiary objections to the opinions expressed in paragraphs 7 and 8 of the Declaration of Albert G. Handelman, as well as the testimony that provides the basis for those opinions in paragraphs 9 and 10. The court liberally construes the declaration of Plaintiff's expert, and determines Handelman adequately states the matters relied on in expressing these opinions and also provides a rea...

Excerpt: ...tly note all three causes of action asserted against them sound in professional negligence and are therefore subject to Code of Civil Procedure secton 340.5. (See Larson v. UHS of Rancho springs, Inc. (2014) 230 cal.App.4th 336, 347; see also TAC 498- 508 [medical malpractice], 510-516 [battery by injection without informed consent], 517-525 [breach of fiduciary duty by failing to diagnose and inform].) As construed by case law, Section 340.5 bar...

Excerpt: ...sness/gross negligence. Defendant contends it cannot be held vicariously liable for acts that fall outside of the course and scope of Co-Defendant, Paul Alden Miller's employment, citing Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297 (Lisa M.) and Farmers Insurance Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1005. In contending the conduct alleged against Miller fell outside the course and scope of his employ...

Excerpt: ... of motion and be repeated, verbatim, in the separate statement of undisputed material facts." Code of Civil Procedure section 437c, subdivision (f)(l) states, "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense...

Excerpt: ...gful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in ...

Excerpt: ...d or supplemental proof of service on the clients, to be filed no later than 5 court days before the continued hearing date of 1/26/24 (i.e., by 1/19/24). As of 1/25/24, counsel has not filed a new proof of service. 2. Motion for Summary Judgment The court GRANTS Plaintiff NATIONAL FUNDING, INC's motion for summary judgment on its Complaint. The Complaint alleges causes of achon for breach of contract (against defendant M&M Custom Builders, LLC) ...

Excerpt: ...vide a red- lined version of any revised papers, including the proposed letter to the aggrieved employees. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the proposed letter to the aggrieved employees, rather than with just a supplemental declaration or brief simply asserting that the issues have been resolved. The proposed relea...

Excerpt: ... any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice." (Code Civ. Proc, S 2025.450, subd. (a).) A motion to compel must: (1) "set forth specific facts showing...

Excerpt: ...ned to encourage the parties to work out their differences informally so as to awid the necessity for a formal order. This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293; Code Civ. Proc„ SS 2016.040, 2031.310, subd. (b)(2).) Defense counsel stated that...

Excerpt: ...e arbitration. Defendants' Request for Judicial Notice is denied as irrelevant. Zucchet v. Galardi (2014) 229 Cal. App. 4th 1466, 1474 n.5. The Case Management Conference set for today is ordered off calendar. A PostArbitration Review Hearing is set for July 25, 2024 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. The court concludes tha...

Excerpt: ... Dev. LLC (2011) 191 Cal.App.4th 1047, 1068 sets forth the applicable test for determining whether a party waives attorney-client privilege and/or work product protection through use of a company-provided e-mail address. While Holmes sets forth the applicable standard for determining whether privilege has been waived, Moving Party fails to make the requisite factual showing that would demonstrate the attorney-client privilege has in fact been wai...

Excerpt: ...mplainants Michael Akpeke, MO, PL, dba Delta Internal Medicine Center and Michael Akpeke's Crosscomplaint for forum non-conveniens. A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court over him or her. (Code Civ. Proc„ S 418.10, subd. (a)(l).) A par...

Excerpt: ...to do so. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 574.) Code of Civil Procedure secton 761.020 provides that in any action to quiet title to real property "[t]he complaint shall be verified." Here, Plaintiffs Complaint is unverified. Accordingly, the motion to strike is granted with 15 days leave to amend. OSC RE: PRELIMINARY INJUNCTION The court grants Defendant's request to issue a preliminary injunction restraining Plaintiff and ...

Excerpt: ...tiff has shown that defendant failed to pay the $14,000 JAMS invoice, first sent on September 13, 2023, within 30 days of its due date. JAMS sent follow-up notices on September 14 and 27, and October 12, 2023. The email sent on September 14, 2023 said that the invoice was due on receipt. Defense counsel admits receiving the invoice and notices but admits not paying JAMS until October 26, 2023, one day after plaintiff served his letter saying he w...

Excerpt: ...f service of the signed order upon the clients and other parties. Ms. Birndorf shall give notice of the ruling. MOTION TO COMPEL PRODUCTION Plaintiff Craig Ziegler's motion to compel Defendant Joseph Del Signore's ("Defendant") further responses to his requests for production of documents, set one, is granted in part and denied in part as set forth below. Nos. 1-18, 27-32, 41, and 43 In addition to various objections, Defendant states in his resp...

Excerpt: ...blitt (2014) 223 Cal.App.4th 104, 1026 [citing Witkin Cal. Proc. (5th ed. 2008) Judgment, §67 for the proposition that “[a] court of general jurisdiction has the power, after Þnal judgment, and regardless of lapse of time, to correct clerical errors or misprisons on its records, whether made by the clerk, counsel, or the court itself, so that the records will conform to and speak the truth”].) Where a “clerical error” is shown, the judg...

Excerpt: ...�6th causes of action for breach of contract, negligence, breach of the covenant of good faith and fair dealing, wrongful foreclosure, cancellation of instruments, and declaratory relief. (See Mtn. P&As at pp. 5-12.) All six causes of action are based on the same set of factual allegations and the same alleged misconduct with respect to the foreclosure on plaintiff's second mortgage. (See, e.g„ Compl. 1, 4, 12, 15-21, 23 [general allegations], ...

Excerpt: ...intiff's complaint alleges that "Ryan Morris agreed to rent from Plaintiffs Insured, Ability Center / Arch Channel Investments, LLC, a 20 Toyota Sienna." (Comp'. BC-I) Plaintiff's evidnece only establishes the existence of a rental agreement between Ryan Morris and Ability Center. There is no evidnece of a rental agreement between Mr. Morris and Arch Channel Investments, LLC, or the plaintiffs other INSURED. Where a party seeking summary judgment...

Excerpt: ...f quantum meruit —that the plaintiff acted pursuant to an express or implied request for services by the defendant. LHS focuses on presenting evidence that it did not make an express request to Plaintiffs to provide any services to the non-party patients. However, LHS overlooks that a quantum meruit claim can arise where the services are provided pursuant to an implied request for services. (Ochs v. PacifiCare (2004) 115 Cal.App.4th 782, 794 ["...

Excerpt: ...f the lengthy videos that the court should notice. As the first video is 6.5 hours long and the second is 3.5 hours, the entire recordings are not pertinent, nor can the court easily determine which parts are pertinent. Defendants' objection to Plaintiff's Exhibit 4 is OVERRULED. Defendants' objections to the Declaration of Rick Nehora are SUSTAINED as to objections 6, 7, 9-12, and OVERRULED as to the rest. Defendants' objections to the Declarati...

Excerpt: ...'s discretion to deny motion on the basis of failure to comply with Rule 3.1350]. ) Summary judgment is denied because moving parties have not shown that there is no triable issue as to any material fact and that they are entitled to a judgment as a matter of law on plaintiff's entire operative Second Amended Complaint [SAC]. (Code Civ. Proc„ S 437c, subd. (c).) Specifically, as to the 1st cause of action, moving parties have not met their init...

Excerpt: ...rcycle brakes had failed but lost. The court notes that during trial, Achstein called an eyewitness who was driving a short distance behind the motorcyclist. He stated that when defendant Kroeger made her left-hand turn, the motorcyclist "didn't have a chance." The achon against the "Suzuki" defendants was based on a theory that the motorcycle brakes had failed due to a manufacturing defect and that brake failure was the basic cause of the accide...

Excerpt: ...objection or failure fully to answer the discovery requests. (Coy v. Sup.Ct. (Wolcher) (1962) 58 cal.2d 210, 220-221; Kirkland v. superior court (2002) 95 Cal.App.4th 92, 98 [burden shifts to objector after good cause shown for RFPsl; Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733 [party claiming the privilege has burden of establishing preliminary facts necessary to support objection].) The Court finds Plaintiff has shown go...

Excerpt: ...ants provided pursuant to this Court's Order is inadequate because it does not contain sufficient detail to enable Plaintiff to evaluate the merits of Defendants' privilege objection. Upon review of Defendants' privilege log, the Court finds the privilege log to contain sufficient information to evaluate Defendants' claims of privilege and/or work product protection. Defendants have complied with the Court's Order that they produce a privilege lo...

Excerpt: ...proceeding before it, in every manner pertaining thereto.” (Code Civ. Proc., § 128, subd. (a)(5).) This includes the power to disqualify counsel in appropriate cases. (In re Complex Asbestos Litig. (1991) 232 Cal.App.3d 572, 585.) Generally, deciding a motion to disqualify requires the court to weigh the following variables, including: (1) the party's right to counsel of choice; (2) the attorney's interest in representing a client; (3) the Þn...

Excerpt: ...itive damages, the complaint must allege facts of defendant's oppression, fraud, or malice. (Civ. Code § 3294(a).) “Malice” is deÞned as conduct which is intended by the defendant to cause injury to the plainti
¯ or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (CC § 3294(c)(1).) “Oppression” is deÞned as despicable conduct that subjects a person to c...

Excerpt: ...endant conceded that the costs entered on lines 3 and 4 (Item No. 4 is for depositions) were supposed to be on lines 4 and 5 (Item No. 5 is for service of process). In its discretion, the court allows the amended cost bill to be filed as the original memorandum of costs contained clear errors. There is no prejudice to any party in allowing an amended cost bill as the numbers themselves have not changed. They are just now in the correct column. Th...

Excerpt: ...art and CONTINUED in part. The motions are granted as to Defendants being required to produce a more detailed privilege log ("Log"). (Beral Decl., Ex. 5.) "The purpose of a "privilege log" is to provide a specific factual description of documents in aid of substantiating a claim of privilege in connection with a request for document production. [Citation.] The purpose of providing a specific factual description of documents is to permit a judicia...

Excerpt: ...llows: "(b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." In ...

Excerpt: ...of the second cause of achon be struck. Quality brings its Mohon pursuant to Civ. Proc. Code S 438, which permits motions for judgment on the pleadings. "A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citation omitted.] The court must assume the truth of all factual allegations in the complaint, along with matters subject to judicial notice." (Wise v. Pa...