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: ...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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ... § 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: ...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...

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: ...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: ...nd his surviving heirs (Plaintiffs Johanna Garcia and Katherine Vanessa Garcia) sue for medical negligence and wrongful death. Defendant Davinder Singh, M.D. was one of Sanchez's treaters. By this motion, he seeks summary judgment of Plaintiffs' complaint in his favor. This hearing is the second continued hearing on the motion. When Singh initially filed the MSJ, the notice period was two days short. Accordingly, the Court continued the hearing 8...

Excerpt: ...judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be 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...

Excerpt: ...ding to sue for financial elder abuse claim because they failed to comply with Section 377.32 of the Code of Civil Procedure. “The Elder Abuse Act . . . authorizes an action to be brought not only by the elder, but also by the elder's ‘personal representative' when the elder is alive but ‘lacks capacity pursuant to [s]ection 812 of the Probate Code, or is of unsound mind, but not entirely without understanding, pursuant to [section 38] of t...

Excerpt: ...-complaint has been filed may within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” It lies within the Court's discretion whether to consider a demurrer to an answer filed after that time. (C. Civ. Proc. § 473; McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282.) In McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281, the court stated: “Even assuming for a...

Excerpt: ...has not paid for the work performed and asserts the following six causes of action: (1) Breach of Contract; (2) Breach of Promissory Note; (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Common Count – Reasonable Value of Services; (5) Common Count – Open Book Account; and (6) Common Count – Account Stated. By this motion, Plaintiff BTP, Inc. moves for a Right to Attach Order in the amount of $1,797,498.47 ($1,048,975.98 ...

Excerpt: ...lar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845. If the plaintiff proves each element of each cause of action, the burden shifts and defendant must "show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto." CCP § 437c(p)(1). The defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead must set fort...

Excerpt: ...perty in court, he or she may be discharged from liability to any of the claimants. This enables the stakeholder to avoid multiplicity of actions and the risk of inconsistent results if each of the claimants were to sue him or her separately. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 874; City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1122.) However, the stakeholder may assert his or her own claim against the property d...

Excerpt: ...aki Awadallah, Mamdouh Zaki Awadalla, and Empire Brothers, Inc., that was allegedly cancelled. These defendants oppose the application, contending that certain sums must be deducted from the funds, including fees charged by Apex Escrow and liquidated damages claimed by the co- defendant sellers. A writ of possession is an extraordinary pre-judgment or post-judgment remedy that permits a creditor to obtain physical possession of tangible personal ...

Excerpt: ...gsoo Kim First COA – Fraudulent Deceit Plaintiffs' complaint alleges that they purchased shares of stock based on Defendants' fraudulent representations that the business would become profitable. Plaintiffs allege the business has lost money and they have not received a return on their investment. “Fraud allegations must be pled with more detail than other causes of action. The facts constituting the fraud, including every element of the caus...

Excerpt: ...foreclosure cause of action, agreeing with defendants' contention that plaintiff could not prove damages because there was no equity in the property. (Id. at 407.) Although plaintiff argued that he should be entitled to “include lost rental income, monies spent on improvements[,] attorneys' fees and emotional distress damages when calculating damages,” the trial court rejected this contention, concluding that these items of damages would be r...

Excerpt: ...ge to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Plaintiff has demonstrated that Plaintiff and Defendant entered a written contract wherein the parties agreed that Plaintiff would extend credit to Defendant, in exchange for repayment of the principal amount lent, plus interest and applicable fees. (SSUMF No. 1.) Plaintiff performed all its obligations under the agreement by extending credit to the Defendant. (SSUMF ...

Excerpt: ...nd that the Courts of the State of California are an inconvenient forum and the action should be filed and litigated in the U.S. District Court for the District of Delaware or any of the state courts located in Wilmington, Delaware under the forum selection clause in the contract that is at issue in this action. Under subdivision (a) of section 410.30, a court must stay or dismiss an action in whole or in part on any conditions that may be just w...

Excerpt: ...s Dominic DeSantis and Paul Cantlay held supervisory positions over Plaintiff during his employment. Plaintiff, who was born in Lebanon and is Muslim, alleges he was harassed and discriminated against on the basis of his race/national origin and religion and that when he complained of the treatment, he was retaliated against. Plaintiff suffered from various medical conditions including diabetes, congestive heart failure and severe sleep apnea. Pl...

Excerpt: ...cation of state or federal law or the rules of the arbitration provider, that the drafting party pay certain fees and costs during the pendency of an arbitration proceeding, if the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consume...

Excerpt: ...wer within 20 days. Analysis. Defendant demurs generally and specially on the ground of uncertainty to all four causes of action in the FAC. First cause of action for breach of contract. The first cause of action is for breach of contract and based on the settlement agreement entered between the parties in a prior litigation, a copy of which is attached to the FAC as Exhibit 2. According to this agreement, the moving defendant was to “use his b...

Excerpt: ...o amend. Cross-Complainants' request for judicial notice of Exhibits 1 through 3 are DENIED as it is unnecessary for the court to take judicial notice of materials previously filed in the case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.) Demurrer as to Richard D. Moore (“Richard”), individually, and Moore Ma...

Excerpt: ...and Leonard M. Parker as to Defendant Gary Chamness 5. Motion to Compel Answers to Form Interrogatories filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker as to Defendant Green R U, LLC 6. Motion to Compel Production filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker as to Defendant Green R U, LLC 7. Motion for Sanctions filed by Plaintiffs Ennovus Group, LLC and Leonard M. Parker MOTION NOS. 1 & 2: Plaintiffs Leonard Parker a...

Excerpt: ...submitted by Defendant is not marked at all. I. MOTION FOR SUMMARY ADJUDICATION ON PLAINTIFF'S 1ST C/A A plaintiff moving for summary adjudication on her/his/its own claim has the burden to produce admissible evidence on each element of a cause of action entitling her, him or it to adjudication. CCP § 437c(p)(1); S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co. (2010) 186 Cal.App.4th 383, 388. This means that a plaintiff who bears the burden of...

Excerpt: ... (1967) 247 Cal. App. 2d 607.) The requirements for obtaining a writ of attachment are: • the claim upon which the attachment is based is one upon which an attachment may issue; • Plaintiff has established the probable validity of the claim; • the attachment is not sought for a purpose other than recovery of the claim upon which the attachment is based; and • the amount to be secured by the attachment is greater than zero. (Code Civ. Proc...

Excerpt: ...ere and which Plaintiff argues should be excluded from the five-year rule is whether for any period of time “[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile. (Code Civ. Proc. § 583.340(c).) This exception to the requirement that a case be brought to trial within five years of filing is recognized because the purpose of the five-year statute is to prevent avoidable delay. The exception makes an all...

Excerpt: ...rt. The motion is granted as to special interrogatories 1, 28. 31, 40, and 51, and plaintiff is to serve a verified further response containing supplemental answers to these interrogatories within 20 days. The motion is denied as to all of the other special interrogatories. Defendant's request for sanctions is denied. Plaintiff's request for a monetary sanction is also denied. Analysis. Each answer in the response to an interrogatory must be “a...

Excerpt: ...rder compelling compliance with the 5/2/19 court order and, again, ordered Plaintiff to pay the sanctions within 30 days. The Court also awarded an additional $560, to be paid within 30 days. On 6/18/20, the Court heard and granted a second motion by Defendants to enforce the earlier order. The Court ordered Plaintiff to pay the original 5/2/19 sanctions of $3,802, the 10/17/19 sanctions of $560 and awarded another $810 in sanctions. Plaintiff no...

Excerpt: ...ions of Kenneth Lee, Yongmuk Kim and Jong K. Lee because they are not material to the disposition of this motion. Code of Civil Procedure section 418.10(a) provides: “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 for one or more of the following purposes: [¶] (1) To quash service of summons on the ground of lack of jur...

Excerpt: ...e of limitations), counsel delivered the complaint to the e-filer Winston O'Malley. (Decl. of Barbara Ratliff, Esq., at ¶ 12.) O'Malley is the owner and operator of Cutting Edge Legal Services, LLC. (Decl. of Ratliff, at ¶ 6; Decl. of Winston O'Malley, at ¶ 4.) O'Malley mistakenly concluded that he had already e-filed the complaint in this action (Kellum v. Montoya, Case Number 30-2019-01108231). (Decl. of Ratliff, at ¶¶ 20-29; Decl. of O'Ma...

Excerpt: ...ute Four entered into consulting agreements with Brandon Burkhart and Amberlee Rails, pursuant to which each would provide consulting services at a specified monthly salary for a specified period of time. On 2/3/20, Route Four filed an action, Case No. 2020-01129185, alleging Canop, Burkhart and Rails breached the APA and associated consulting agreements in a variety of ways, including material pre-agreement misrepresentations regarding Canop's a...

Excerpt: ...e request by responding party Rockwood for a monetary sanction is also denied. Analysis: Plaintiff and cross-defendant The Coop Franchise Group moves for an order compelling defendant and cross-complainant Peter Rockwood to serve a further response to the first set of requests for production that contains supplemental answers to requests 16, 19, 20, and 21. The Coop Franchise Group also moves for an order imposing a monetary sanction of $1860 aga...

Excerpt: ...ider the additional evidence submitted by Plaintiffs in support of their Supplemental Brief because it violates the Court's September 3, 2020 Minute Order, which permitted the parties to submit supplemental briefing “not to exceed six pages,” “on the issue of whether the Plaintiff Entities that were not in existence at the Engagement Agreement was signed are bound by it.” (ROA 58.) The Court's Minute Order did not permit the parties to su...

Excerpt: ...ts, heating units, etc. Both Maax and Groupe Gecko named Ron Roberts dba OC Spa and OC Spa (collectively “OC Spa”) as cross-defendants, seeking to recover under indemnity and contribution theories. OC Spa seeks summary judgment on Maax Spas and Groupe Gecko Alliance, Inc.'s cross- complaints for indemnity and contribution. Although OC Spa's notice of motion states that it is also seeking summary adjudication, it does not specifically state th...

Excerpt: ...uñez-Bellamy, ¶¶ 3-11.) “If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading,” before filing a demurrer or motion to strike to the amended pleading. (Code Civ. Proc. § 430.41(a), 435.5(a); emphasis added.) Defendant attempted to meet and confer via email, but Plaintiff did not respond. Code Civ. Proc. § 430.41(b) provides that the dec...

Excerpt: ...f Gov. Code § 12940 et seq. All liability against a public entity such as the defendant must be based on statute or enactment and the plaintiff must plead every fact essential to the existence of that statutory liability with particularity. Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802. The first cause of action in the FAC is for disability discrimination under Gov. Code § 12940 et seq., which makes it unlawful for an e...

Excerpt: ... $31,680 against the plaintiffs and their attorneys of record is also denied. Analysis. Plaintiffs move for an order compelling responding non-party to comply with a subpoena for testimony and production of documents Responding party contends that the motion was improperly served on it and that it should be denied on this basis. The motion was originally filed on May 26, 2020 with a hearing date of August 13, 2020 (ROA 183). However, it was conti...

Excerpt: ... rule is whether for any period of time “[b]ringing the action to trial, for any other reason, was impossible, impracticable, or futile. (Code Civ. Proc. § 583.340(c).) This exception to the requirement that case be brought to trial within five years of filing is recognized because purpose of five- year statute is to prevent avoidable delay. The exception makes an allowance for circumstances beyond plaintiff's control, in which moving case to ...

Excerpt: ... declaration of expert Edward Ruzak. Defendant's evidentiary objections are all overruled. Discussion. Although the city purports to move in the alternative for summary adjudication as to three issues, the FAC only asserts a single cause of action against it. Therefore, because summary adjudication of an issue may “be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty”...

Excerpt: ...declarations, supplemental declaration of Jennifer Serentelos and a declaration of Sarah Kellykilgore. New evidence is not permitted with reply papers and was not considered by the court in ruling on this Motion. The burden is on Plaintiff to show all elements necessary to support issuance of the injunction. O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481. “A superior court must evaluate two interrelated factors when ruling on a r...

Excerpt: ...e respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for rescission of the agreement. [¶] (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or serie...

Excerpt: ...s GRANTED. The burden is on Plaintiff to show all elements necessary to support issuance of the injunction. O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481. “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction we...

Excerpt: ...t of form interrogatories and imposing a monetary sanction of $2025 against this plaintiff is denied. Under subdivision (a) of Code Civ. Proc. § 2030.300, on receipt of a response to a set of 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 ...

Excerpt: ...identiary objections of the plaintiffs are not considered by the Court because they do not comply with the mandatory format specified in CRC 3.1354(b). The evidentiary objections of the moving defendant to the declarations of Mr. Everlove, Dr. Shah, and plaintiff Anton Rosandic are all overruled. Analysis. The TAC contains two viable causes of action for negligence and loss of consortium. The TAC alleges that the moving defendant is a healthcare ...

Excerpt: ...3, and 14. Plaintiff's request for sanctions is denied. Plaintiff contends that defendant's PMK, Robert Gerken, appeared for deposition on November 20, 2019 under the amended deposition notice served on October 15, 2019 and that he was unable to testify to many topics identified in the deposition notice and did not produce any documents. The person or persons designated by the entity must testify “to the extent of any information known or reaso...

Excerpt: ...ve motion for summary adjudication of both causes of action is also DENIED for the same reason. The Court declines to rule on the plaintiffs' evidentiary objections to defendants' evidence under Code Civ. Proc. § 437c(q) because the defendants' evidence is not material to its ruling on the motion. Analysis. Plaintiffs City of Costa Mesa and the People of the State of California move for summary judgment on their complaint as to all defendants. I...

Excerpt: ...uyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” It is Plaintiff's burden of proof to show the fees it incurred and that the fees were reasonably incurred. (Christian Resea...

Excerpt: ...e elements for applying the doctrine to either an entire cause of action [claim preclusion] or one or more issues [collateral estoppel] are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior p...

Excerpt: ...important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's repr...

Excerpt: ...ts is $50,000. Analysis. Plaintiff applies for a writ of possession concerning four Dodge Ram 5500 vehicles with all attachments and accessories. Plaintiff contends that the vehicles are in the possession of defendant Irvine Auto Towing. A writ of possession is an extraordinary pre-judgment (or post-judgment) remedy that allows a creditor to obtain physical possession of tangible personal property. As a pre- judgment remedy, it is used to seize l...

Excerpt: ...g date of 4-16-20. They were continued by the Court to 7-16-20 At oral argument on 7-16-20, the Court continued the hearing on the motions to 8-27-20, which was when additional motions to compel were set for hearing. The Court instructed counsel to engage in meet and confer to narrow the issues. The Court indicated that it would inquire at the hearing on 8-27-20 whether a discovery referee should be appointed. On 8-10-20, plaintiffs' counsel file...

Excerpt: ... 2018, plaintiff Richard A. Jones (“R. Jones”) made an offer to buy the property located at 5058 Via Ingresso, Yorba Linda, CA (“Property”). (See Jones Decl., Ex. A.) The offer was made using the California Association of Realtors form titled California Residential Purchase Agreement and Joint Escrow Instructions (“RPA”). Defendants Brett R. Yaden, Darci Yaden, Brett A. Yaden and Melodie Yaden accepted the offer on March 5, 2018. (See...

Excerpt: ...l not be considered by the Court. Analysis. Defendants move for summary judgment on the third amended complaint, which contains two viable causes of action for negligence and loss of consortium. The TAC alleges that, on March 26, 2016, plaintiff Anton Rosandic presented to the emergency room of defendants' hospital in San Clemente complaining of severe pain in his shoulder and chest and of difficulty in breathing. (TAC, ¶ 13.) It alleges that th...

Excerpt: ...extension of time via either stipulation or declaration. However, Plaintiff does not object to the demurrer as being untimely on behalf of Roham. So that objection is waived. The only argument raised as to timeliness is that Roham Inc. cannot demurrer because it already answered. C. Confusion as to Moving Party There was an error as to the moving party. The demurrer is captioned as being brought on behalf of Roham Inc. while in pro per. This was ...

Excerpt: ...d by Plaintiff Hussain Mohammed SPECIAL INTERROGATORIES SPECIAL INTERROGATORY NO. 26: IDENTIFY YOUR present employee in California who is most knowledgeable regarding YOUR warranty policies, including but not limited to any policies YOU may have had regarding the replacement or reimbursement of allegedly defective automobiles, during the RELEVANT PERIOD. RESPONSE NO. 26: FCA US will designate a corporate representative pursuant to California Code...

Excerpt: ....C.P. § 418.10(a).) Pursuant to the stipulation submitted by the parties and the court's signed order, Defendants in Intervention had until 6/12/20 to file their responsive pleading to the Complaint in Intervention (ROA 435), the instant motion was indeed filed on 6/12/20. Thus, the motion is timely. Merits. C.C.P. § 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 th...

Excerpt: ...se, 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, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. Doubtful cases are usually resolved in favor of granting relief: “Because the law strongly favors trial and dispo...

Excerpt: ... one or more elements of the cause of action cannot be established or there is a complete defense. (CCP § 437c(a), (p)(2).) The scope of a moving defendant's initial burden is determined by the allegations of the plaintiff's complaint, as “the pleadings set the boundaries of the issues to be resolved at summary judgment.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648; FPI Development, Inc. v. Nakashima (1991) 2...

Excerpt: ...a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto....

Excerpt: ...provides that: “On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too g...

Excerpt: ... private information of Pearhead employees that are not parties to this case. RFPs 47, 48, and 53 seeks documents regarding Pearhead's business, such as financial statements, insurance policies, and communications between Pearhead and non-party supply chain management companies. While a party need not always show a “compelling need” for the discovery, “when a discovery request seeks information implicating the constitutional right of privac...

Excerpt: ...o the allegations of the First Amended Complaint, Plaintiff reported fraud to her management in the fall of 2018. Rather than take action, the County retaliated against Plaintiff by giving her a poor performance review, a demotion and a decrease in pay. Plaintiff then developed anxiety, depression and an adjustment disorder which necessitated an extended leave. When she was cleared to return to work in April 2019, the County informed her they cou...

Excerpt: ... the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurr...

Excerpt: ... of action), declaratory relief (3rd cause of action) and breach of fiduciary duty (4th cause of action). Defendants' demurrer is OVERRULED. Plaintiffs also request judicial notice. Meet and Confer Declaration The demurrer is accompanied by the requisite meet and confer declaration under Code of Civil Procedure §430.41. (See Declaration of Jessica N. Walker, ¶ 3.) Requests for Judicial Notice (“RJN”) Plaintiffs seek judicial notice of the s...

Excerpt: ... Burkhart, the owner of Hydroponics, and Amberlee Rails, Burkhart's sister and a former employee of Hydroponics. On 2/3/20, Route Four sued Burkhart, Rails and Hydroponics (now known and sued as Canop Holdings, LLC), alleging various breaches of the APA, including alleged breaches of non-compete and non-solicitation provisions. Route Four v. Burkhart, Case No. 30-2020- 01129185. Route Four alleged that Burkhart was using non-parties Luxx Lighting...

Excerpt: .... Nicole Vincent and Dr. Grace Mucci, relating to Plaintiff Lunden David Peterson, dated after November 9, 2018 (the date of Plaintiff's alleged injury) through to the present. (¶10 of Complaint). This production is ordered to occur within 15 days-notice of this order. Initially, the Court finds the instant Motion was timely and accompanied by sufficient attempts to meet and confer, in compliance with C.C.P. §2025.480(b). Per the Declaration of...

Excerpt: ...tached to Motion to Transfer Venue)). Consequently, per C.C.P. §395(a), Plaintiffs were entitled to select any county in California, to proceed with their action. Nonetheless, pursuant to C.C.P. §397(c) a Court may, on motion, change the place of trial “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” However, “a motion for change of venue on the ground of the convenience of witnesses will not ...

Excerpt: ...as to the first cause of action as to PBK, only; OVERRULED as to the third and fifth causes of action; SUSTAINED without leave to amend as to the first cause of action as to Christine Kim, Phillip Kim, Young Sun Sunwoo, and Karen S. Lim; SUSTAINED without leave as to the second cause of action; and SUSTAINED with 20 days leave to amend as to the fourth cause of action. General Principles A demurrer presents an issue of law regarding the sufficien...

Excerpt: ...ile a responsive pleading was 2/20/20 (30 days after service). (CCP § 430.40(a).) The demurrer was filed on 3/13/20 and there is no evidence of an extension of time via either stipulation or declaration. However, Plaintiff does not object to the demurrer as being untimely on behalf of Roham. So that objection is waived. The only argument raised as to timeliness is that Roham Inc. cannot demurrer because it already answered. C. Confusion as to Mo...

Excerpt: ... 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 trial court's discretion. (Doppes v. Bentley Motors, ...

Excerpt: ...urther, fails to sufficiently allege damage he, personally, suffered from the alleged breach. Olen demurs to the 3rd cause of action for Declaratory Relief on the ground that it is redundant of the 1st and 2nd causes of action. The contract claims (1st and 2nd causes of action): Civil Code section 1559 provides: “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind i...

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 Offer is Valid and Reasonable? Defendant challenges the Offer on several grounds: (1) i...

Excerpt: ... Cal. App. 3d. 494, 501 (finding that the trial court properly sustained the demurrer to the fifth cause of action without leave to amend because it “contains, by necessary implication, all of the allegations of each of the preceding four alleged causes and thus adds nothing to the complaint by way of fact or theory of recovery”); Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1134-1135 (claims for negligence and intentional...

Excerpt: ... of Hyung Kim dated May 21, 2020 are SUSTAINED because the declarations were not signed under penalty of perjury. Defendants' objections to Declaration of Hyung Kim are SUSTAINED as to paragraphs 10, 12, 13, 21, and 28 and OVERRULED as to the remaining paragraphs. The burden is on Plaintiff to show all elements necessary to support issuance of the injunction. O'Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481. “A superior court must ...

Excerpt: ...gations set forth in the complaint. (Lambert v. Carneghi (2008) 158 Cal.App.4th 1120, 1126.) The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or from matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. Although California courts take a liberal view of in- artfully drawn complaints, it remains essential that a complaint set f...

Excerpt: ... negligent misrepresentation; and (9) unfair competition. The FAC alleges that plaintiffs have been providing addiction treatment services to defendant's insureds as out-of-network providers since 2012 and 2015 (FAC, ¶ 79) and that, beginning in 2016, defendants engaged in a pattern of unjustified denials and claim processing roadblocks to deny payment, underpay claims, or withhold payment to plaintiffs (FAC, ¶ 89). It alleges that plaintiffs' ...

Excerpt: ...um of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first.” Farah contends that Van Sickle and Cashman gave notice of the judgment on May 30, 2019, which makes the memo of costs filed on July 23, 2019 untimely...

Excerpt: ...mit a Joint Stipulation agreeing to adjudication of the issues, along with Declarations which assert the Motion will further the interests of judicial economy. (C.C.P. §437c(t)(1)). Following compliance with these requirements, the Court is required to notify the parties whether the Motion will be permitted. (C.C.P. §437c(t)(2)). The record of this action does not reveal compliance with C.C.P. §437c(t). Thereafter, the Motion for Summary Judgm...

Excerpt: ...ullerton (“plaintiff” or the “City”) pursuant to Code of Civil Procedure §425.16, the “anti-SLAPP” statute. The second is a request by the City for an injunction prohibiting defendants from: (1) deleting, altering, or destroying documents from 20 Dropbox folders, (2) publishing or disseminating those documents, and (3) downloading data or further accessing City networks without permission. These motions - especially the second - have...

Excerpt: ...demurrer to the cross-complaint (Exhibit 3); and (4) this court's October 17, 2019 tentative ruling on cross-defendants' demurrer to the cross-complaint (Exhibit 4). This court will take judicial notice of its tentative rulings and documents filed in this litigation (Exhibits 1, 3-4). (Evid. Code, § 452, subd. (d).) The court denies judicial notice of the letter/quote (Exhibit 2). Evidence Code section 452, subdivision (h) provides that judicial...

Excerpt: ...endants contend that the bankruptcy stay that is in place should be extended to them because of the nature of plaintiff's claims and their relationship to South Coast Behavioral Health, Inc. Plaintiff opposes the motion. Both sides cite numerous federal cases discussing the scope of the bankruptcy stay. These cases make it clear that, ordinarily, “unless the assets of the bankrupt estate are at stake, the automatic stay does not extend to actio...