Excerpt: ...f trial, the matter was submitted to the jury for decision. One hour later the jury returned a non-unanimous defense verdict. Defendant submitted a cost bill of $72,678.27. Before the Court this day is plaintiffs' motion to tax said cost bill – or more specifically the process and expert fees. The prevailing party in any civil action is entitled to recover costs as a matter of right. CCP §1032. Defendant here clearly prevailed. If the items in...

Excerpt: ...ssory notes or loan agreements, with the rest acknowledged by Retrospecs. (See Kim Decl. ¶¶ 6-19, Exs. 1-3; Hwang Decl. ¶¶ 4-5, Ex. 6.) However, Plaintiffs have failed to adequately support the request for the other sums claimed. The interest claim purports to be based on Ex. 4, but no such exhibit was submitted. There is thus no evidence to support those calculations. Plaintiffs also claim an additional $89,029.14 for unreimbursed business e...

Excerpt: ...ther shenanigans and acts of malfeasance involving missing vehicles/parts. Plaintiff filed suit. Defendant denies all wrongdoing, and responded in kind with a counter-suit for defamation, wage/hour violations, and wrongful termination. Before the Court this day is a motion for fees associated with the successful SLAPP motion brought by plaintiff dealership and cross- defendant general manager, directed at defendant's cause of action for defamatio...

Excerpt: ...atute by defendant BANA (i.e., that the alleged violation affected plaintiffs' loan obligations or the modification process). (Cornejo v. Ocwen Loan Servicing, LLC (E.D. Cal. 2015) 151 F.Supp.3d 1102, 1113.) As to the second cause of action for violation of CC § 2923.7, plaintiffs fail to allege facts showing that they did not have a single point of contact, and that there was a material violation of the statute by defendant BANA. As to the 3 rd...

Excerpt: ...e agreement from all parties to the transfer, and (c) the ends of justice support such an order. Courts are to be guided by the following criteria: (1) The existence of a significant and predominating common question of fact or law between the actions; (2) The convenience of the parties, witnesses and counsel; (3) The relative development of the actions and the work product of counsel; (4) The efficient utilization of judicial resources; (5) The ...

Excerpt: ...ple and by way of punishing the defendant.” Civ. Code § 3294. It is not sufficient to allege merely that a defendant “acted with oppression, fraud or malice.” A plaintiff must allege specific facts showing that defendant's conduct was oppressive, fraudulent or malicious. Smith v. Sup.Ct. (Bucher) (1992) 10 Cal.App.4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643. Here Plaintiff has failed to ...

Excerpt: ...came out at a higher price, the Trust backed out of the contract, and then the Trust contracted to sell the property to Jordan Bennett. But when One Stop threatened legal action, the Trust came back to the deal with One Stop and backed out of the transaction with Bennett. However, Bennett proceeded to record a lis pendens. Both prospective buyers have filed suit against the Trust. The Court has consolidated their two cases. The Lead Case In 7/201...

Excerpt: ...C to fix and complete the platform in time for an annual human resource convention occurring three months later. Plaintiff also entered into a contract with non-party US Business Incubator for development assistance with the platform. Plaintiff entered into a third contract for consulting services to be provided by defendants herein, More Media Group and its owner William Ganz. A dispute arose regarding the work performed by Debello, leading to t...

Excerpt: ...th of the following apply: (1) An answer to a particular request is evasive or incomplete.(2) An objection to a particular request is without merit or too general."C.C.P. § 2033.290(a). CCP § 2033.220 provides as follows: (1) Each answer in the response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits… (2) Each answer shall: (1) Admit so much of the matt...

Excerpt: ...neck, left shoulder, back, and arms, as well as information related to anxiety, fatigue, sleep disruption, and fear of driving, for a period of 10 years prior to 10/27/16 (the accident date), through to present. Medical, billing, imaging, and workers' compensation records relating to the affected body parts and issues are discoverable, as long as they are narrowly tailored as noted above. The requests for sanctions made by both parties are Denied...

Excerpt: ... and Order attached to Opposition.] The defendant seeks monetary sanctions in the amount of $2950. The court finds that the plaintiff acted with substantial justification and that the circumstances make the imposition of monetary sanctions unjust. Authorities: The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expe...

Excerpt: ... the action. Defendants shall give notice. Demurrer to 1 st C/A for Fraud The Court sustains Defendant Kim's demurrer with leave to amend. This c/a is not asserted against Defendant Im. (See heading of 1st cause of action, Second Amended Complaint, p. 7.) The demurrer is sustained because the elements of fraud are not alleged with requisite specificity. General and conclusory allegations will not suffice for the claim. (Small v. Fritz Companies, ...

Excerpt: ...proceeding under the California Arbitration Act. (See CCP § 1287.4(“If an award is confirmed, judgment shall be entered in conformity therewith”); CCP § 1291.2 (proceedings are summary in nature.) As such, there is nothing to consolidate and consolidation would serve no cognizable purpose. Defendant Trust shall give notice. 2. JAMS' Demurrer The Demurrers of JAMS Inc. to the Plaintiff Gross' First Amended Complaint are sustained with leave ...

Excerpt: ...se of action in the operative Complaint. According to defendant, the pleading is inadequate because plaintiff has not identified anything that the defendant did wrong (ie, breach of any duty). Defendant is correct, but is this really something that warrants lawyer time? Both sides agree that the cause of the fire remains unknown, but plaintiff's inability to pinpoint the cause of fire is not dispositive in negligence. Rather, plaintiff could rely...

Excerpt: ...w arguments. On a demurrer, the proper means to submit material outside of the complaint is by a request for judicial notice. (Thorburn v. Department of Corrections (1998) 66 Cal.App.4th 1284, 1287- 88; Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 88.) Defendants have not presented a proper request. However, in the opposition, Plaintiff concedes that it is the subject of a bankruptcy case commenced in Sweden in June of 2018. The dispute ...

Excerpt: ...udgment debtor, Saleen Signature Cars (formerly named SMS Signature Cars.) (See Def. Request for Judicial Notice herein, f. 11/2/17, Exhibit 26 and 42; see also Trial Exhibits herein, Joint Trial Exhibit List f. 2/14/18, at Ex. 23-29.) The Plaintiffs seek to distinguish their claim of entitlement to fees against defendant Saleen Automotive Inc. (SAI), from their potential liability for attorney fees to this defendant Steve Saleen, but the Court w...

Excerpt: ... - 9: Sustained; legal opinion, lacks foundation, improper argument and opinion of counsel, hearsay, lacks authentication Authorities: CCP Section 629(a) provides that: The court . . . either of its own motion . . . or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict . . . should have been granted had a previous...

Excerpt: ...does not support the jury's verdict. Declaration of Keith Greer: Plaintiffs' Objections 1 and 2: Sustained, hearsay Declaration of Eileen McCarty: Defendant's Objections 1-2: Sustained, hearsay, Evid. Code § 1150 Declaration of Kathy Short: Defendant's Objections 3 - 4: Sustained, hearsay, Evid. Code § 1150. Declaration of Kevin G. Liebeck: Defendant's Objections 5 - 7: Sustained, hearsay. Motion for New Trial: The requirements and grounds for ...

Excerpt: ... as follows: On 05/03/17, plaintiff went to the San Gabriel branch of HSBC Bank (hereinafter “Bank”) to deposit $5,000 in cash and a personal check in the amount of $4,100. According to plaintiff, the teller assured her that while the check could not be cashed, it would be immediately accessible as cash upon deposit (ie, no customary hold to see if the check cleared). Not so. The hold apparently put plaintiff in a bind as she needed funds rig...

Excerpt: ...'s request for monetary sanctions is granted and shall be paid within 30 days as provided in this order. Code Civ. Proc., § 2033.280, subd. (c) provides that the court shall deem the matters admitted unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. The subject...

Excerpt: ...ditional work done outside what insurance covered, amounting to roughly 1500 sq ft of new additions. Defendant retained plaintiff Marinel Puscas dba National Construction (“plaintiff”) to do both the insurance and non-insurance work on the property. The parties entered into a single written contract, dated 01/07/16, covering all of the work. Plaintiff alleges that defendant failed to pay $145,000 for the non-insurance work. Before the Court t...

Excerpt: ...erior Court (1989) 211 Cal.App.3d 1309, 1312–1313. After considering the merits of the Motion and counter-arguments, the Court denies the Motion on the basis that the records are producible as they may be relevant to issues of damages and liability. Slagle v. Superior Court, supra, 211 Cal.App.3d at 1312. Plaintiff's Complaint and Opposition allege that Defendants took products, confidential business records, and proprietary information belongi...

Excerpt: ...pears therein, not all of the material to which Plaintiff objects is improper. Defendant's evidentiary objections to Orloff Declaration filed with the Motion sustained regarding Nos. 5, 7, 9 and 11 (speculation/foundation), and Nos. 14-17 (relevance) but otherwise overruled since, the other objections are primarily as to relevance, but the material at issue has some potential bearing on the history of events behind the motion and/or Orloff's know...

Excerpt: ...ural History This case is related to Gross v. Charles B. Lehman Trust, 2017- 940784 (“Related Action”). The cases could be characterized procedurally as “a mess”. On 2/22/18, the Charles B. Lehman Trust (“Trust”) began this action by filing a formal Petition to Confirm an Arbitration Award issued by JAMS arbitrator, Hon. James L. Smith (Ret.), in favor of the Trust, and against John Hartwig (“Hartwig”), on a commercial lease dispu...

Excerpt: ...ce of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists. . .” C.C.P § 1281.2. “The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing ...

Excerpt: ...leading Fraud “[I]n California, fraud must be pled specifically; general and conclusory allegations do not suffice.” “‘Thus ‘the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.' ” “This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what meansthe representations were tendered.” (Robinso...

Excerpt: ...ion. The Court also considered the other pleadings, minutes, records, and judgment filed in the present case (see, e.g., the Parties Stipulated Facts filed 3/9/17), as well as the Court's recollection of the evidence at trial. Applying the legal concepts is challenging here. Recently, the Court of Appeal noted that a plaintiff can sue an alter ego directly in an action, or can amend the judgment later to add the alter ego. Here, the latter occurr...

Excerpt: ...ourt does attempt to accommodate counsel's personal scheduling requests, a belated request presented at the back of a reply brief is insufficient. That request is therefore DENIED. Plaintiff has also objected to both motions on the grounds that the citations in the Separate Statements lack adequate specificity. But both Separate Statements present sufficient detail to permit the Court to evaluate the supporting evidence cited, and to permit Plain...

Excerpt: ... that it is an abuse of discretion to deny an amendment unless the adverse party can show meaningful prejudice, such as the running of the statute of limitations, trial delay, the loss of critical evidence, or added preparation costs. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. Finding that there were no facts suggesting such prejudice in this case, the court made the following order in bold type: “The proposed amended answer has to ...

Excerpt: ...y favors an exercise of that discretion in favor of granting relief so that matters can be heard on their merits. (Shapiro v. Clark, 164 Cal. App. 4th 1128, 1139 (2008). Here, a request is timely presented within six months of the entry of default. Indeed, it is presented quite promptly within about one month of the event. Any doubts in applying the statute are to be resolved in favor of the party who is seeking relief from default. (Fasuyi v. Pe...

Excerpt: ...ts And Attorney Fees Are Awardable Thereon The contracts attached to Plaintiff/Cross-Defendant Wholesome Choice's First Amended Complaint (“Lease Agreements”), and upon which Digitech prevailed, did not contain an attorney fee provision clause. However, the Lease Agreements did contain a clause under the “Equipment Use” paragraph that considered additional agreements between Wholesome Choice and Digitech for payment of “maintenance, ser...

Excerpt: ...the application papers and a notice of hearing to be served upon the Defendant by substitute service. (See Proof of Service filed 5/9/18.) The Court has not received a timely response to this matter from the Defendant. Based upon the unopposed showing in the moving papers, the Court finds that the probable validity of Plaintiff's claim to possession of the vehicle is shown. The Court therefore GRANTS the application. (See CCP § 512.010, § 512.0...

Excerpt: ...h and a personal check in the amount of $4,100. According to plaintiff, the teller assured her that while the check could not be cashed, it would be immediately accessible as cash upon deposit (i.e., no customary hold to see if the check cleared). Not so. The hold apparently put plaintiff in a bind as she needed funds right away to cover her daughter's tuition and other undisclosed matters. Plaintiff became upset, spoke to the branch manager, and...

Excerpt: ... Motions is CONTINUED to July 20, 2018 at 9:30 am. As a preliminary matter, it appears that Motions 1 and 4 were not properly served on the subpoenaed parties, as they were evidently informed of the hearing only by email. The motions must be duly served on the subpoenaed parties. (See C.C.P. § 1985.3(g).) No evidence or authority has been presented to suggest that this was sufficient service for either third party. Defendants are thus directed t...

Excerpt: ...9.40(c)(2)). ...

Excerpt: ...uty to meet and confer pursuant to CCP § 430.10(a)(1). As part of the meet and confer process, the party who filed the complaint “shall” provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, could be amended to cure any legal insufficiency. (CCP §430.41(a).) Here, there is no indication that the Plaintiff has fulfilled this requirement. The hearing is therefore continued to...

Excerpt: ...y clear, defense counsel agreed to one continuance after another. After seven months of counsel's unfulfilled promises to comply, the pending motion to compel was filed. Trial was recently continued by stipulation, with the caveat that discovery remain open. On 09/15/17, defendant caused to be served upon plaintiff's counsel an initial set of document requests. For reasons which are not entirely clear, defense counsel agreed to one continuance af...

Excerpt: ...dant County of Orange will be denied as moot if the defendant has complied with its responses and produced documents, as promised, before this hearing. If the defendant has not produced responsive documents, the motion will be granted requiring such production within 10 days of this hearing. The plaintiff's request for monetary sanctions against Defendant in the amount of $ 4,610 is denied. Form Interrogatories –General, Set One. No. 17.1 The P...

Excerpt: ...tional arbitrations during the new trial date, as the trial date will not be continued. ...

Excerpt: ...ourse of conduct, or when other conduct by the client renders it unreasonably difficult for the attorney to do his job, including when there is a breakdown in the attorney-client relationship. California Rules of Professional Conduct, Rule 3-700(c); Estate of Falco v. Decker (1987) 188 Cal.App.3d 1004, 1014. If withdrawal is by client consent, the attorney need only submit Judicial Council form MC-050: Substitution of Counsel – Civil. See CCP �...

Excerpt: ... part and denied in part as set forth below. Plaintiff shall give notice. IT APPEARS THAT THE DEFENDANTS' 998 OFFER WAS NOT VALID The Court considered the following authorities and principles. “An offer to settle under section 998 must have several features to be valid. For example, it must not dispose of any claims beyond the claims at issue in the pending lawsuit... That limitation exists because of the difficulty in calculating whether a jur...

Excerpt: ...led at least nine court days prior to the hearing. See CCP §472(a). Although plaintiff failed to heed this requirement, the absence of opposition coupled with an obvious attempt to file an amended pleading leads this Court to the inescapable conclusion that there is no need to address the demurrer or motion to strike substantively. For technical purposes, the demurrer is SUSTAINED, the motion to strike is moot, and plaintiff shall have 10 days l...

Excerpt: ...86; Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1343 [“while portions of the… contract claim are undoubtedly time-barred, the action is timely as to those breaches occurring within the four-year limitations period preceding the filing of the original lawsuit.”].) Here, the FAC alleges that Plaintiff was hired “in or around 2008.” Plaintiff has since testified that he was not hired until 2010. (RJN Ex. A.) But in an...

Excerpt: ...86; Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1343 [“while portions of the… contract claim are undoubtedly time-barred, the action is timely as to those breaches occurring within the four-year limitations period preceding the filing of the original lawsuit.”].) Here, the FAC alleges that Plaintiff was hired “in or around June 2012” and worked for Defendants until July 2016, and that the alleged violations occurre...

Excerpt: ...s, or through reasonable diligence should have discovered, the injury, whichever occurs first. CCP § 340.5. “The one-year limitation period of section 340.5 is a codification of the discovery rule, under which a cause of action accrues when the plaintiff is aware, or reasonably should be aware, of “injury,” a term of art which means “both the negligent cause and the damaging effect of the alleged wrongful act.” Arroyo v. Plosay (2014) ...

Excerpt: ...d not have raised when the court ruled on the Motion for Protective Order on May 4, 2018 or made its Protective Order Ruling on May 10, 2018. May 4, 2018 Minute Order Ruling on the Motion for Protective Order: The May 4, 2018 Minute Order after which the court issued its May 10, 2018 Protective Order provided in pertinent part as follows: The Court hears oral argument and adopts the tentative ruling as follows: Plaintiff's motion for protective o...

Excerpt: ...us call that would be forever etched in history. The details of that call are not directly relevant for today's bifurcated proceeding, but this much should be said: a homeless and mentally compromised individual by the name of Kelly Thomas was detained on suspicion of possessing stolen property (mail) and trying to break into parked cars; he later died from injuries suffered when officers converted that detention into an arrest. One of those offi...

Excerpt: ...tion to tax cost that is appearing in the docket. Thus, the memo appears to be final and it is proper to award the cross-complainants these costs. (See CRC 8.278, 3.1700.) The $9,020 in costs claimed by Cross-Complainants, in the 4/25/18 memos, are allowed. However, there are additional costs that are outstanding. 2. 2013 COSTS MEMO – OUTSTANDING & TO BE DETERMINED This Motion appears to ask the Court to rule on an additional cost memorandum, f...

Excerpt: ...r C.C.P. § 1008(b) in his application do not provide the Court with any valid reason to reconsider or revoke its prior order. Plaintiff has provided no new facts or evidence that an attorney-client relationship ever existed between himself and Defendant. At most the “new facts” may be relevant to Plaintiff's former attorney Greer's representation in the prior Bankruptcy Matters, however that case is not before this Court. Defendant to give n...

Excerpt: ...From time to time he knocked on the side door, the only accessible door to the property. According to the process server, at roughly 7pm an individual inside the home confirmed her identity as the defendant, but refused to open the door. She invited the server to simply leave the papers outside, which defendant admittedly retrieved the next morning. See Maes Decl Para 8; Minniti Decl Para 4, 9. According to defendant, she “did not speak with th...

Excerpt: ...ich was settled in 2015. (UF 17, 20, 21.) A written settlement agreement (“Agreement”) was signed by the parties to that suit - Astra, Suretec, and Hardy & Harper. (UF 21.) Gavrilescu signed the Agreement for Astra. (UF 22.) It is undisputed that Gavrilescu personally was not a party in the Action, and was not individually a party to the Agreement. (UF 17-21.) Gavrilescu contends that the Agreement nonetheless released him personally from his...

Excerpt: ...r's fees, as agreed upon in the arbitration agreement (¶ 7). Defendant shall give notice. Basic Standard Defendant has met the burden to show that there is an arbitration agreement covering the dispute. (See Petition, Agreement to Arbitrate.) The Plaintiff has the burden to show there is a defense to its enforcement. (CCP § 1281.2;Segal v. Silberstein (2007) 156 Cal.App.4th 627, 633.) Waiver The Court cannot agree that Defendant has waived the ...

Excerpt: ...onses, and all objections had already been waived. (C.C.P. §2033.280(a).) Therefore, unless responses in substantial compliance with §2033.220 are provided before the hearing, the matters specified in RFAs Set One, for RFA Nos. 1-5, 7-15, & 19, shall be deemed admitted. (C.C.P. §2033.280(b)(c).) Sanctions are imposed against Steward alone in the amount of $860 under C.C.P. § 2033.280(c). No basis for also imposing those sanctions on defense c...

Excerpt: ...v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 62 [the “critical point in time is when the claims accrued” – i.e. when the conduct at issue occurred].) Defendants have not shown that Plaintiff had either agreed in advance to arbitrate those claims, or that he gave express consent in the Agreement that it would have retroactive application. Arbitration thus cannot be compelled here. (See Cobb v. Ironwood Country Club (201...

Excerpt: ...on, entitled Hardy & Harper Inc. v. Astra Builders, Inc. et al., (OCSC Case No. 2014 00726136) (the “Action”). (UF 5.) That Action was settled in 2015. (UF 6.) A written settlement agreement (“Agreement”) was signed by the parties to that suit - Astra, Suretec, and Hardy &Harper. (UF 6; Gavrilescu Decl. Ex. B.) Gavrilescu signed the Agreement for Astra. (UF 7.) The instant motion is based on the Agreement. It is undisputed that Gavrilescu...

Excerpt: ...lly the causes of action; there are many alleged. Defendants are to give notice unless notice is waived. MEET AND CONFER IS SUFFICIENT In the emails, both counsel identified their respective positions and legal support. This is sufficient for a meet and confer. (See CCP §430.41(a)(1), §435.5(a)(1); 6/8/18 Park Decl., Exhibit A, B.) However, in the future, Defendants must meet and confer “in person or by telephone” in accordance with the sta...

Excerpt: ...a relatively innocuous call that would be forever etched in memory. The details of that call are not directly relevant for today's bifurcated proceeding, but this much should be said: a homeless and mentally compromised individual by the name of Kelly Thomas was detained on suspicion of possessing stolen property (mail) and trying to break into parked cars; he later died from injuries suffered when officers converted that detention into an arrest...

Excerpt: ...d 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. Before the Court this day is yet another defense attack to the operative pleading. 1st COA: Negligence �...

Excerpt: ...upon a contract, which is cited as the 2014 Settlement Agreement and Mutual Release made in the underlying action in Riverside Superior Court. The parties to the settlement agreement are reflected as the Plaintiffs, and certain nonparties here, defendants there, who were identified as SMS Retail Corona and SMS Signature Cars Inc. The settlement agreement has an attorney fee provision that reads, “in the event of any legal action or proceeding b...

Excerpt: ...om US Healthworks, Dr. Chi, and CGMC. (Morris Decl. ¶ 5.) But only unspecified “portions of” those records were then submitted with the motion. (Alexander Decl. ¶ 4-7, Exs. C-E.) Testimony derived from medical and hospital records not properly before the court, have “no evidentiary basis” or evidentiary value. (Garibay, supra, 161 Cal.App.4th at 742-743.) “Only after the facts were properly before the trial court could the expert form...

Excerpt: ... Court as the responsive pleadings to Plaintiff's Complaint within 5 days. 4. Plaintiff's requested penalty of $1,000 is denied. “[T]he court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.” C.C.P. § 473.5; Ellard v. Conway (2001) 94 Cal. App. 4th 540, 544. “Actual notice of the action alone is not a substitute for proper service of process and is not sufficient to confer ...

Excerpt: ...ior Court (2004) 121 Cal.App.4th 1100, 1106; Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 77.) Evidence proffered in support of, or in opposition to, an application must be set forth with particularity, admissible, competent and under oath by declarants with personal knowledge of the facts proffered. (CCP §§ 482.040, 484.020, 484.030; Goldstein v. Barak Const. (2008) 164 Cal.App.4th 845, 853; VFS Financing, Inc. v. CHF Express, LLC, 620 F.Supp.2d 1...

Excerpt: ... amend. Under C.C.P. § 430.41(b), 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 answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross- complaint, or answer.” (C.C.P. § 430.41(b) [emphasis added].) Owner's current demurrer does not comply....

Excerpt: ...he contracted attorney fee rate; 3) to identify the what the $1,126.84 in fees are for and why they were not included in the Memorandum of Costs; and 4) a breakdown of the “anticipated” fees and costs. This will aid the Court it determining the reasonableness of the requested amounts. The re-filed Motion is to be regularly filed and noticed under the requirements of C.C.P. § 1005. Motion for Leave to Amend Digitech's Motion To Amend the Cros...

Excerpt: ...s no power to balance the differing interests of opposing litigants in applying the provision.” Id., at 1085. Plaintiff has established that she is 85-years old, has a substantial interest in the action as the sole plaintiff and that her health is such that a trial preference is necessary to prevent prejudicing the party's interest in the litigation due to her high blood pressure and lapses of cognitive ability which are increasing in frequency...

Excerpt: ...se of action, based on evidence that would support a ruling in the plaintiff's favor if no controverting evidence is presented. (ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 613; see also Yelp Inc. v. Superior Court of Orange County (2017) 17 Cal.App.5 th 1, at *13-14.) The statements at issue must also be identified with specificity. (ZL Technologies, supra, 13 Cal.App.5 th at 616.) These standards have been met for the “lovely...

Excerpt: ...ive from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no ...

Excerpt: ... that there were none for any years prior to 2014, but agreed to produce those he had for 2014-2016. (Sheetz Decl. Ex. J.) Plaintiff has evidently now produced responsive documents for 2014 and 2016. (Reply p. 8.) It thus appears that the only material still at issue for these requests are the 2015 returns. If Plaintiff has them, they must be produced. If not, Plaintiff's counsel should be prepared to address at the time of the hearing, with spec...

Excerpt: ...r dismissal from the academy, she had just completed her 15 th and 16 thweeks. The grade sheets for those weeks had already been posted for all recruits to review, and according to plaintiff showed her doing quite well compared to her peers. Following ejectment from the academy, plaintiff has attempted unsuccessfully to secure a copy of those key weekly grade sheets. Even after the recent PMK deposition, it remains defendants' position that the g...

Excerpt: ...levant to the claims and defenses presented. (See Supp. Ettinghoff Decl., and Exs. A-D thereto.) And it does not appear that there is any less intrusive means available to Plaintiff to obtain the information requested. In addition, as Plaintiff has limited the requests to bank statements alone, it seems unlikely that SSNs or tax returns would be included in the requested production. Plaintiff also appears to have narrowly tailored the requests, t...

Excerpt: ...has established that Plaintiff's counsel Thomas E. Donahue, Esq.'s illness has precluded him from adequately preparing for trial and delayed plaintiff's deposition from taking place. Defendant Gonzalez has established that she needs additional time to prepare for trial. Designation of experts is quickly approaching and neither Plaintiff has been deposed nor experts designated. Defendant Gonzalez's lead trial counsel, Mark Franzen, will be engaged...

Excerpt: ...levant to the claims and defenses presented. (See Supp. Ettinghoff Decl., and Exs. A-D thereto.) And it does not appear that there is any less intrusive means available to Plaintiff to obtain the information requested. In addition, as Plaintiff has limited the requests to bank statements alone, it seems unlikely that SSNs or tax returns would be included in the requested production. Plaintiff also appears to have narrowly tailored the requests, t...

Excerpt: ...ive from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no ...

Excerpt: ... that there were none for any years prior to 2014, but agreed to produce those he had for 2014-2016. (Sheetz Decl. Ex. J.) Plaintiff has evidently now produced responsive documents for 2014 and 2016. (Reply p. 8.) It thus appears that the only material still at issue for these requests are the 2015 returns. If Plaintiff has them, they must be produced. If not, Plaintiff's counsel should be prepared to address at the time of the hearing, with spec...

Excerpt: ... of entry of judgment is by mail, the period is extended accordingly. (Kahn v. The Dewey Group (2015) 240 Cal.App.4th 227, 234–235.) Here, the Notice of Entry of Judgment shows service by mail on 1/26/18. The MOC here was thus timely filed on 2/13/18. However, costs here may not be imposed unless the Court finds that Plaintiff's claims were frivolous, unreasonable, objectively without foundation, or brought in bad faith, or that Plaintiff conti...

Excerpt: ...onal addresses for the lienholders is also granted. The moving party assignee Cal-West Equities has established that the original Order for Sale of Dwelling entered on 1/17/18 included estimated amounts owed to Aegis Wholesale Corporation, Discover Bank and The County of Orange Auditor-Controller. Townsend Declaration ¶¶ 3-6. Since then, the moving party has obtained the actual amounts. Originally, Aegis Wholesale Corporation (Mr. Cooper) was e...

Excerpt: ...follows: 1. Defendants misappropriated AGA's trade secrets, and were unjustly enriched in the amount of $1,028,431.00; 2. Defendants negligently interfered with AGA's prospective economic advantage – but caused no economic harm; 3. Johnson breached his duty of loyalty – but caused no economic harm. Judgment was entered thereon, ordering all three defendants to be jointly and severally liable for the whole of the enrichment obtained by defenda...

Excerpt: ...ers by Hamilton and Sundberg (“Individual Defendants”) The demurrers are overruled. According to Defendants, the real contracting party was M2T, and these Defendants were merely the officers/agents of M2T in dealings with plaintiff or Bersiek. However, the pleading expressly alleges that an oral agreement was made with Sundberg and Hamilton, individually. (See FAC ¶¶ 10, 20, 21, 22, 23, 24, 25, and repeated in ¶ 37, 38.) It would be improp...

Excerpt: ...relied upon (see Cal. R. Ct 3.1306(c)) but in any event, according to the argument, there were “fatal” facts in the prior pleading, which were omitted from the amended pleading, which makes the latter pleading a sham. However, the Court is not persuaded that the doctrine of sham pleading is properly applied. The moving brief does not make clear at times where the prior “fatal” facts exist in the record, nor how/ what was “fatal”. For ...

Excerpt: ...ng missing vehicles/parts. Plaintiff filed suit. Defendant denies all wrongdoing, and responded in kind with a counter-suit for defamation, wage/hour violations, and wrongful termination. Before the Court this day is a demurrer to employee's cross-complaint. Three causes of action are at issue herein: defamation, retaliation, and wrongful termination. 1st COA: Defamation This cause of action did not survive the special motion to strike; the demur...

Excerpt: ...eir garage in or about 2011. Before the Court this day is a motion for summary judgment brought by defendant Sal's Auto Service (Doe #2). At issue herein is whether there is any evidence that a single repair service (wheel alignment) 14 days pre-incident contributed in any fashion to the accident. 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, d...

Excerpt: ...rmative Defense, which is a requirement of C.C.P. § 437c(f)(1). If that were the case, then Ortho would not later argue in its Motion that all of the elements of the Affirmative Defense have been met. See, Motion, pg. 5-6. Additionally, if Ortho actually believed that its Affirmative Defense had no merit, then it could simply withdraw the defense, not assert it, stipulate with plaintiff, or propose a Motion in Limine at time of trial. Instead Or...

Excerpt: ...bitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Mansouri v. Superior Court (2010) 181 Cal.App.4 th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4 th1569, 1575. The burden rests with the party seeking to compel arbitration to establish these th...

Excerpt: ...ing on the punitive damages motion below, Plaintiff has not satisfied the standards for the punitive damages amendment pursuant to CCP §425.13. Thus, any amended pleading that is filed shall eliminate claims to punitive damages against the Hospital. The Court may, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading. CCP §473(a). Courts have a policy of liberality in allowing a...

Excerpt: ... occurred. It appears to the Court that this was somewhat under the control of counsel versus an unforeseen or unavoidable emergency-type of situation that traditionally justifies a continuance of trial. (See CRC 3.1332(a) (“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.”); Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1250�...

Excerpt: ... and acts of malfeasance involving missing vehicles/parts. Plaintiff filed suit. Defendant denies all wrongdoing, and responded in kind with a counter-suit for defamation, wage/hour violations, and wrongful termination. Before the Court this day is a special motion to strike brought by plaintiff dealership and cross-defendant general manager, directed at defendant's cause of action for defamation. Analyzing a special motion to strike under CCP §...

Excerpt: ... Los Angeles (2000) 85 Cal.App.4th 316, 324; ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) Generally, a cause of action accrues and the statute of limitations begins to run when the plaintiff has suffered wrongdoing and resulting harm. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) Here, the alleged fraud consists of the sale of the vehicle to Plaintiff, without disclosing the alleged defects. It appears that th...

Excerpt: ...t cite any procedural defect, but rather, challenges the legal sufficiency of Plaintiff's proposed fraud cause. The evidence does not support a finding that the fraud cause is a sham pleading. In any event, the argument is not appropriate at this stage, as motion for leave to amend, does not generally consider the legal sufficiency of the amended pleading. Kittredge Sports Co. v. Sup.Ct. (1989) 213 Cal.App.3d 1045, 1048. Any prejudice to the defe...

Excerpt: ..., or intrusiveness of Defendant's requested conditions on the deposition process onto Plaintiff in order for him to depose Defendant's employees, for the discovery of information he is entitled to obtain. Additionally, Defendant did not promptly bring this motion. Defendant never sought a protective order prior to the first noticed depositions of the witnesses, despite asserting that Plaintiff was threatening at Khader's deposition. Plaintiff ser...

Excerpt: ...he bank to actually deposit them into the “Stone-Lamm Trust” – an account held exclusively by Walji. Sometime thereafter, Walji withdrew, and absconded with, the funds. Walji is now serving time in a federal prison for his shenanigans. Plaintiff is out $1.4 million – representing a large portion of his retirement savings. Plaintiff believes that defendant should have been alerted to the activity given the size of the deposits. Before the ...

Excerpt: ...the $550,000 that Plaintiff paid to Greer for representation during the Bankruptcy Matters. Complaint ¶¶ 8-61; 63-64. It also alleges that Defendant failed to properly represent Plaintiff in the Bankruptcy Matters. Id. As a result of alleged inadequate representation on the part of attorney Greer and Defendant, Plaintiff was eventually found liable for an over $7 million judgment in the bankruptcy action. Complaint ¶ 28. Plaintiff also claims ...

Excerpt: ...ention that it was not dealing with a situation involving litigation and a formal judgment which were involved here. Probate Code § 1000 says “Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under … the Code of Civil Procedure,apply to, and constitute the rules of practice in, proceedings under this code. . . .” The Law Revisio...

Excerpt: ...�� This is true where the plaintiff voluntarily dismisses or where the trial court orders an involuntary dismissal . . . Defendant is entitled to costs regardless of whether the dismissal is with or without prejudice”) (internal cites omitted); Mon Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4th 87, 94 (“voluntary dismissal of a lawsuit is always conditioned ‘upon payment of the costs; even if the dismissal is without pre...

Excerpt: ...llegations that an officer, director or managing agent committed, ratified, or authorized an act of fraud, oppression or malice. Motion to Strike: Pursuant to Code of Civil Procedure Section 436 the court may strike out “any irrelevant, false, or improper matter inserted in any pleading.” A motion to strike may be used to strike punitive damages allegations in a complaint lacking factual foundation. Turman v. Turning Point of Central Calif., ...

Excerpt: ...al distress) and 4 th (abuse of process) causes of action. At issue is whether defendants' reporting of plaintiffs' alleged embezzlement is protected activity subject to anti-SLAPP protection. Relevant Background Between 2012 and 2015, Sterling Plumbing began suffering significant financial setbacks. By some accounts, this was the byproduct of a downturn in the economy, coupled with Sterling's ill-advised decision to venture into government-spons...

Excerpt: ... case is that the Court, in rendering its Minute Order of February 22, 2018 did not know, consider or address the fact that the “Court failed to serve its Notice of Case Assignment to Plaintiff. Specifically: (1) The Court's E-file Clerk(s) failed to include the Notice of Case Assignment to Plaintiff's counsel via the completion of the Court's processing of Plaintiffs e-filing of the lawsuit documents on November 15, 2018. (2) The Court clerk(s...

Excerpt: ...ke loose and lodged in the portal between the maxilla and sinus cavity. Plaintiff alleges that as a result of the botched extraction, and subsequent remedial procedure, she suffers ongoing physical symptoms. Before the Court this day is a motion to quash summons by specially-appearing defendant Dentsply Sirona. This entity is alleged to have had some role in the design, manufacture or distribution of the surgical bur used by Bijal which broke (id...

Excerpt: ...9. The court will complete the information noting the trial date is presently scheduled for May 14, 2018, at 9:00 am in Department C20. It appears there is no timely written opposition in response to this matter. The Motion is granted. However, the withdrawal will not be effective until Gordon & Rees LLP causes a copy of the signed Order to be served upon the Client, and a proof of service is filed with the Court demonstrating the service. Gordon...

Excerpt: ...Defendant's entire Verified Answer to Plaintiffs First Amended Verified Complaint is DENIED AS MOOT. The policy favoring leave to amend is so strong that it is an abuse of discretion to deny an amendment unless the adverse party can show meaningful prejudice, such as the running of the statute of limitations, trial delay, the loss of critical evidence, or added preparation costs. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. There are no...

Excerpt: ...urt to determine the proper trustee of the Sacher Family Trust as between plaintiff Fred Sacher and his alleged successor Alexander (Ted) Alvarez, and by defendant Kenneth Sacher, as competing alleged trustee. The determination of the probate court will apparently determine the proper plaintiff for this case; vested with standing to pursue the present action for the trust. In the Answer to the Complaint filed here, Defendant Kenneth Sacher is ass...