Excerpt: ... statements during the “incident”; heard statements about the “incident” and/or who Defendant claims has knowledge of the “incident.” Defendant responded with numerous objections and referred Plaintiff to her medical chart “believed” to be in her possession. In a supplemental response, Defendant provided a privilege log which identifies three documents, each entitled “Incident & Accident Report Form” and invokes Evidence Code ...

Excerpt: ...auses of action. Plaintiff opposes the demurrer only as to the first cause of action for conversion. “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. [Citation.]” (Hodges v. County of Placer (2019) 41 Cal....

Excerpt: ...Professions Code 11212 (x), (1), (2). Issue Number 2: Plaintiffs are entitled to summary adjudication on the Third Cause as to Defendant because the defendant's sale of the time-share interest is subject to regulation by the California Department of Real Estate. Issue Number 3: Plaintiffs are entitled to summary adjudication on the Third Cause as to Defendant because the anti-deficiency laws of the state of California apply to the financing agree...

Excerpt: ...1.) However, when seeking to establish a statutory cause of action, general allegations are insufficient. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809 [75 Cal.Rptr. 240].) In Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5, specifically addressing governmental liability under the California Tort Claims Act (Gov. Code, § 810 et seq.), the Court of Appeal held, “[b]ecause recovery is based on a statutory cause of...

Excerpt: ...oduction of documents on July 23, 2020. (Dickson Decl., ¶ 2, Ex. 1.) No written objections to the deposition notice were served by Defendant prior to the original July 23, 2020 deposition date. (Dickson Decl., ¶ 3.) Defendant did not appear for his deposition on July 23 and Plaintiffs filed a motion to compel deposition. (Dickson Decl., ¶ 3.) Thereafter, Defendant agreed to appear on September 28, 2020 but refused to produce any documents requ...

Excerpt: ...orporation and Extra holidays, LLC demur to the entire complaint and each of the 12 causes of action alleged therein on the following grounds: · Plaintiff's joint employer assertions are insufficient to allege that any of the demurring defendants is her employer. · Plaintiff's alter ego allegations are insufficient to state a claim against any of the demurring defendants. · The complaint is fatally uncertain because Plaintiff does not clearly ...

Excerpt: ...al Aresh's Demurrer to Defendants' (Monica Marin–Morales, Akin Arikan, Glafira Cruz Sumano, David Marin Romero and Beatriz Marin-Morales) Answer to the Complaint as set forth below with 15 days leave to amend. In general, whenever a defendant bears the burden of proving at trial is “new matter” (also referred to as an “affirmative defense”) and thus must be specially pleaded in the answer. (See California Academy of Sciences v. County o...

Excerpt: ...that it is untimely. California Rules of Court, Rule 3.110 provides that: “The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.” Here, on September 11, 2020, Plaintiff served defendant O.C. Metro Patrol LLC with the Complaint by substitute service and served defendant Arthur Lucero with the Complaint by personal service. (Kirs...

Excerpt: ...ed by CCP § 580d. Defendant demurs to Plaintiff's claim for declaratory judgment on the ground that it is derivative of the unjust enrichment claim. Unjust enrichment as a claim in California. Citing Melchior v. New Line Productions, Inc. (2003) 106 Cal. App.4th 779, 793; Hill v. Roll Intern. Corp. (2011) 195 Cal.App.4th 1295, 1307, Defendant argues that Plaintiff's unjust enrichment claim fails because unjust enrichment is not recognized as a c...

Excerpt: ... As explained below, Defendants are entitled to mandatory relief. Code Civ. Proc.§ 473(b) states: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default entered ...

Excerpt: ...ing signed by the parties outside court. (CCP § 664.6.) As with any contract, the settlement agreement requires mutual consent: “The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811, internal quotes omitted.) Moreover, to be binding, ...

Excerpt: ... deposition dates for several individuals and have agreed on three dates in March. CCP § 437(h) reads: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or mak...

Excerpt: ...esponses to Form Interrogatories, Set One (filed on 11-12-20) is GRANTED. Code of Civil Procedure section 2030.210, subdivision (a), provides, “The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: [¶] (1) An answer containing the information sought to be discovered. [¶] (2) An exercise of the party's option to produce writings. [¶] (3) An objectio...

Excerpt: ...e proper, may allow the amendment of any pleading or pretrial conference order.” The court's discretion should be exercised liberally in favor of amendments. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a ...

Excerpt: ...efendants said would be used to entirely pay off the Company's debts. FAC, ¶ 33. Plaintiff now alleges, among other things, that Defendants used the funds for personal expenses and not to pay off the company's debts. FAC, ¶¶ 4, 33, 37-38 and 51-61. According to Defendants, the $850,000 was deposited into an account belonging to The 12 Franchise, a separate corporate entity that is not a party to this action. Plaintiff issued a subpoena seeking...

Excerpt: ...iams claims the dismissal was an improper tactical ploy. The case law favors Williams' position here. A dismissal without prejudice cannot be filed once the court posts an adverse tentative ruling. (Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 72.) But since Plaintiff has dismissed Williams all the court will do is make its tentative ruling of 12-17-2020 the final order on the demurrer. Williams is no longer a party so the ...

Excerpt: ...beying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g); Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) If a party fails to obey an order compelling answers to discovery, the court may impose whatever sanctions are just, including issue sanctions, evidence sanctions, terminating sanctions, and monetary sanctions. (Code Civ. Proc., § 2023.030.) Imposition of sanctions for misuse of discovery lies within the ...

Excerpt: ... § 437c(a).) Where plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (CCP § 437c(p)(1).) The requirement that there be “no triable issue of material fact” means that summary judgment can be granted only where the essential facts are either conceded or beyond dispute. If there is one, single material fact in dispute, the motion must be d...

Excerpt: ...Services, Inc. and Suzanne Smith MOTION NO. 1, DEMURRER: Defendants Avis Plumbing, Heating & Air Conditioning, Inc., Craig A. Smith, Suzanne Smith, Avis Home Solutions, Inc. AMC Marketing Services, Inc., Smitty, LLC, CAS, LLC and Epic Home Services and Water Solutions (collectively referred to herein as “Defendants”) demur to the Eighth (Conversion) and Ninth (Retaliation in Violation of the Fair Employment and Housing Act) Causes of Action. ...

Excerpt: ...by plaintiff Hye Jin Yang is SUSTAINED with 20 days leave to amend. Fifth Cause of Action for Fraud: The elements of fraud are: (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Kaldenbach v. Mut. of Omaha Life Ins. Co. (2009) 178 Cal. App. 4th 830, 850.) The elements of a c...

Excerpt: ...nd costs in Plaintiff's favor against Defendant Phiton Nguyen. The present action is based on the transfer of a 50% interest in real property from Defendant Phiton Nguyen to his brother, Defendant Vu Nguyen, which occurred approximately ten days after the prior judgment in Plaintiff's favor. Plaintiff alleges the transfer was an attempt to fraudulently avoid the judgment of attorneys' fees in her favor against Phiton Nguyen. The first cause of ac...

Excerpt: ...nt of $435,300.00 (ROA 465). (CCP § 1032(a)(4).) Thus, the questions here are (1) whether the CCP § 998 Offer to Compromise (“Offer”) served by Plaintiff on 4/17/17 in the amount of $100,000 to defendants Rubalcava and Lupercio jointly (McClaugherty Dec., ¶ 3.) is valid; and (2) whether the costs claimed are proper, reasonable and necessary. Whether the 998 Offer is Valid and Reasonable? Defendant challenges the CCP 998 Offer on several gr...

Excerpt: ...ogatory Nos. 2.4, 2.6, 2.7; and GRANTED as to Nos. 12.1, 12.7, 17.1 and 50.2. Code of Civil Procedure section 2030.300, subdivision (a) provides: “On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: [¶] (1) An answer to a particular interrogatory is evasive or incomplete. [¶] (2) An exercise of the option to produ...

Excerpt: ...ogatories, and Requests for Production. The mater was continued from 12/17/20 to permit supplemental briefing from the parties regarding the supplemental responses to Special Interrogatories and Requests for Production served by defendants and the issue of sanctions to the mooted Motion for Further Responses to Requests for Admission. The court rules as follows: Sanctions Re: Requests for Admission Contrary to defendants' representation that the ...

Excerpt: ... either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” Declaration of J...