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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ... 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: ... - 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: ...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: ...'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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...9.40(c)(2)). ...

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

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