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