Excerpt: ...ir shared general counsel and the Board of Education did not appoint Jeffrey Riel as the shared general counsel. The first cause of action in the complaint by the Board of Education is for injunctive relief under Code Civ. Proc. sections 526 and 527. A claim for injunctive relief requires: (1) a tort or other wrongful act constituting a cause of action; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actua...

Excerpt: ...laint named defendant John Seidensticker as the responsible motorist. After learning that Behr was Seidensticker's employer at the time of the accident, Plaintiffs named Behr as Doe 1 defendant. After the court granted in part, and denied in part, Behr's motion to strike, but before Plaintiffs' filed the operative First Amended Complaint (“FAC”), Behr filed the instant motion. Although the Complaint to which the motion is directed is not the ...

Excerpt: ...rogatories and Requests for Production are GRANTED. The evidence submitted to the court shows that defendants received service of the discovery requests no later than 06/24/19 and have yet to serve any responses. All objections are thus waived, and defendants are ORDERED to serve verified responses, without objections, to the subject discovery within 15 days. Additionally, the court imposes monetary sanctions against each defendant in the amount ...

Excerpt: ...laintiffs alleged that Dennis Xu had defrauded them, or whether a third party had defrauded them. Based on the revisions made by plaintiffs to the pleading, it appears to the court that plaintiffs' theory of liability against Dennis Xu sounds in negligence, and that their theory against Tri Pointe Connect sounds in respondeat superior. “Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees ca...

Excerpt: ...d. Plaintiff alleges she began her employment with the Art of Gifting, Inc. “doing business as Bellagio Spas and Salons” on September 8, 2012. (See ¶6 of Complaint). Thereafter, Plaintiff alleges she received less in compensation than was agreed to, within an Independent Stylist Agreement, which is attached as Exhibit A to the Complaint. (See ¶7 of Complaint). As noted by Defendants, the Agreement attached to the Complaint was executed sole...

Excerpt: ...fault prove up hearing/bench trial, the court found in favor of plaintiff Balboa against defendants Ramian Estate, LLC dba Ramian Wines, Brian Graham and Ramian Wine (collectively “Defendants”) in the amount of $35,484.93, attorney's fees and post judgment interest to be determined. The lease agreement (“Lease”) upon which Balboa bases its suit includes an attorney's fee provision. See Lease, ¶ 13. As the prevailing party, plaintiff seek...

Excerpt: ...low, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Plaintiff argues that the Motion filed on September 26, 2019 is untimely because Reat Taste was served with the Summons and Complaint via substitute service on August 16, 2019, and based on the date of service, any motion to quash was required to be filed by September 25, 2019. Reat Taste contends t...

Excerpt: ...ing party in any civil action is entitled to recover costs as a matter of right. Code Civ. Proc. §1032; Charton v. Harkey (2016) 247 Cal.App.4th 730, 737. The parties do not dispute that Plaintiff is the prevailing party. If the items in the cost bill appear on their face to be proper, the verified memorandum of costs is prima facie evidence of their propriety. The burden then rests with the party seeking to tax costs to show they were improper,...

Excerpt: ... yards. 3. Plaintiff is the prevailing party in this action and entitle to costs of $2334.01 and attorneys' fees of $122,187.00. 4. Interest on the above penalties and costs will accrue at the rate of 10% per annum from entry of the amended judgment. RELIEF SOUGHT: Plaintiff and judgment creditor applies to the court for an Order of Sale of the property at 12 Gondoliers Bluff, Newport Coast, CA 92657. Moving Party's CONTENTIONS: Plaintiff is tryi...

Excerpt: ...eks judicial notice of various trial court rulings in other unrelated cases on purportedly similar motions. Pursuant to Evid. C. § 452(d)(1), the court may take judicial notice of records of “any court of this state.” However, while the court may “judicially notice a variety of matters, only relevant material may be noticed.” Aquila, Inc. v. Sup. Ct. (2007) 148 Cal.App.4 th 556, 569. The orders submitted by moving party are irrelevant to...

Excerpt: ... to modify the Note. However, he does not clarify whose offer it was. The fact that plaintiff signed the document indicates that he accepted an offer from Civic Financial Services, thus creating a binding written modification. See Riverside Rancho Corp. v. Cowan, 88 Cal.App.2d 197, 208 (1948). Additionally, the court notes that this cause of action is legally improper. Declaratory relief is inappropriate to “correct conduct that occurred in the...

Excerpt: ...ntiff Pedro Guerrero dismissed his cause of action for loss of consortium, which means that the sole remaining cause of action is for medical negligence. KHO contends that it is not directly liable for any alleged negligence in the care and treatment of plaintiff because it is not a healthcare provider. It contends that it is a holding company that is incorporated in Delaware and has its principal place of business in Louisville, Kentucky. It con...

Excerpt: ...proportionate liability.” See Toyota Motor Sales U.S.A., Inc. v. Sup. Ct., 220 Cal.App.3d 864, 871 (1990). However, even if the plaintiff's damages are potentially high, and a defendant's liability certain, “a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.” See County of Los Angeles v. Guerrero, 209 Cal.App.3d 1149, 1157 (1989). Here, Mr. ...

Excerpt: ...Cal.4th 245, 255. Therefore, it is Plaintiffs' burden to present competent evidence that the exclusion of Valencia from Deponents' depositions is warranted. Pursuant to Code of Civ. Proc. § 2025.420, a court may, “for good cause shown,” make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden or expense. Included with...

Excerpt: ...nd respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists unless it determines that the right to compel arbitration has been waived by the petitioner or that grounds exist for the rescission of the agreement. Code Civ. Proc. § 1281.2. A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such...

Excerpt: ...ry objections are all overruled because they do not comply with the requirements in CRC 3.1354(b), which requires each written objection to be numbered consecutively. Defendant's objections 1-10 to the expert declaration of Angelina Maria Arturo, D.P.T., R.P.T. are overruled. Defendant's objections 1-7 to the declaration of plaintiff Carmen Casas Guerrero are overruled. Defendant's objections 1-6 to the declaration of David Guerrero are overruled...

Excerpt: ...g in which the bond is given and the time for appeal has expired or, if an appeal is taken, until the appeal is finally determined. The motion shall not be made or notice of motion served more than one year after the later of the preceding dates. (c) Notice of motion shall be served on the principal and sureties at least 30 days before the time set for hearing of the motion. The notice shall state the amount of the claim and shall be supported by...

Excerpt: ... must order the petitioner and respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists unless it determines that the right to compel arbitration has been waived by the petitioner or that grounds exist for the rescission of the agreement. Code Civ. Proc. § 1281.2. A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and...

Excerpt: ...ges 4. Demurrer of Defendants CEP America-California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Plaintiffs' Second Amended Complaint 5. Motion by Defendants CEP America-California, Khanh P. Tran, M.D. and Khanh P. Tran, M.D., Inc. to Strike Portions of Plaintiffs' Second Amended Complaint Defendants Memorialcare Health System dba Memorial Health Services and Saddleback Memorial Medical Center's (collectively “Memorialcare”) demur t...

Excerpt: ...r Specific Performance of an Implied Agreement; and Fourth Cause of Action for Breach of Contract alleged in plaintiff Karin Holloway's Complaint is sustained with leave to amend. Defendant argues that the second, third and fourth causes of action are barred by Code of Civil Procedure Sections 366.2(a) and 366.3(a). Code of Civil Procedure§ 366.2(a) provides: "If a person against whom an action may be brought on a liability of the person, whethe...

Excerpt: ...should be disregarded because it was filed and served on October 23, 2019. However, plaintiff is incorrect because the general rules for filing and service in Code Civ. Proc. § 1005 do not apply. Rather, subdivision (a) of Code Civ. Proc. § 484.060 provides that if a defendant wishes “to oppose the issuance of the right to attach order sought by plaintiff or objects to the amount sought to be secured by the attachment, the defendant shall fil...

Excerpt: ...ified declaration? Yes 3. Service on the State Bar in San Francisco? Yes – filed on 10/3/19 4. Good standing and not currently suspended or disbarred? Yes – admitted in Illinois federal and state courts 5. Number of other California appearances? None 6. Residence address? 9943 S.Clifton Park, Evergreen Park, Illinois 7. Office Address? 190 So. LaSalle Street, Suite 3700, Chicago, Illinois 8. Proof of payment? Yes – filed on 10/3/19 Moving a...

Excerpt: ...tten instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may upon his application, be so adjudged, and ordered to be delivered up or cancelled.” (Civ. Code § 3412.) Here, Plaintiffs seek cancellation of the Notice of Default. (Complaint, ¶ 75.) The Complaint alleges that on February 28, 2007, Plaintiff refinanced her property a...

Excerpt: ...f a longstanding landlord-tenant relationship between plaintiff and the City of Fullerton. These motions – aimed at the complaint and cross-complaint - present some overlapping questions, all of which remain to be determined at trial: (1) When was the commencement date for the lease and when did the lease expire? (2) Did plaintiff properly exercise its option to renew the lease, and if not, why not? (3) Did the City repudiate the lease and if s...

Excerpt: ...(See V3, ROA Nos. 23 & 25.) The window to file a SLAPP was open until approximately mid-August 2018. Instead of filing a SLAPP motion, defendant C.A.R. Law, P.C. removed the case to federal court on 07/19/18. The California Supreme Court last year addressed the applicability of the 60-day deadline to amended pleadings when it affirmed a SLAPP denial in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 4 Cal.5 th 637 (2018). In that...

Excerpt: ... that, “[w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding.” Subdivision (b) provides that the motion is to be made on the ground that the plaintiff resid...

Excerpt: ... court denied two prior motions brought by Plaintiffs for the same relief, on the same grounds. Plaintiffs fail to comply with the requirements of Code of Civ. Proc.§ 1008. Moreover, the motion is procedurally deficient, as it fails to include a notice. A notice of motion “must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order,” as well as the papers upon which it is based. (CCP § ...

Excerpt: ...g party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal.” (CRC 8.278(a)(2).) Here, Kelsey was the Respondent on appeal. The court of appeal affirmed the trial court's orders granting Kelsey his attorney fees. (Opinion, Case No. G055668.) The appellate opinion also awarded costs on appeal to Kelsey. (Id., p. 28.) Thus, the court finds that Kelsey is the prevailing party on appeal. (CRC, ...

Excerpt: ...ry except as otherwise provided by statute. (Gov't Code § 815(a).) City further argues that the liability of a public entity for injury caused by the dangerous condition of public properly is exclusively governed by Government Code Section 835, which Plaintiff has already alleged in her first cause of action for premises liability. City correctly argues that Plaintiff's premises liability cause of action alleges liability based on the dangerous ...

Excerpt: ... of Action), Issue No. 3 (Fourth Cause of Action) and Issue No. 4 (Third Cause of Action). The District's motion for summary judgment is DENIED, The District's motion for summary adjudication is GRANTED in part, and DENIED in part. Procedural Defect: Plaintiff objects to District's exhibits A through I on the grounds that Plaintiff has failed to comply with California Rules of Court, Rule 3.1350(g) which requires that “[i]f evidence in support ...

Excerpt: ...sts as the prevailing party after the surrender of the vehicle and as agreed by the parties by stipulation or, if the parties cannot agree, as determined by the court in a single noticed motion.” A prevailing buyer in an action under the Song-Beverly Act is permitted to recover “a sum equal to the aggregate amount of costs and expenses, including attorneys' fees based on actual time expended, determined by the court to have been reasonable in...

Excerpt: ...C US, David Earl Stephens, James Leroy Cotterman, Jr., James D. Weber, Mark P. Hontz, Kimberly R. Kerry, Colin J. Schottlaender, William H. Swanson, Thomas A. Kennedy, Matthew Brewer, F. Kinsey Haffner, Brian J. Armstrong and Keith Peden: Standard of Proof for Summary Judgment/Adjudication Since res judicata and the statute of limitations are affirmative defenses, defendants have the burden of proof: “The burden on a defendant moving for summar...

Excerpt: ...ond, he wants the court to declare that plaintiffs' use of vehicles on his property related to commercial or noncommercial equestrian operations constitutes an impermissible excessive burden and overuse of the easements such that they have extinguished any right plaintiffs may have had to use his property for any purpose. Summary adjudication of the First Cause of Action requires that Thier negate both grounds for declaratory relief. Thier argues...

Excerpt: ...rty to a civil action to recover damages for personal injury who is under the age of 14 shall be entitled to preference upon motion “unless the court finds that the party does not have a substantial interest in the case as a whole.” Further, per Code of Civ. Proc. § 36(e), the “court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by gr...

Excerpt: ...driving with a BAC of .08% or more supported by the weight of the evidence? Pederson was the only person who testified during the Administrative Hearing on 11/16/18. She admitted to having “an alcoholic beverage.” [AR 32, 9-12] She also testified that if she has two drinks, “I throw up.” [AR 32,15-19] She confirmed the officer's report that she had two vodka tonics. [AR 32:22 – AR 33:1] Field sobriety tests were administered. [AR 36:10 ...

Excerpt: ...tion to strike, Defendant seeks Judicial Notice of plaintiff's governmental claim against the City. The demurrer is SUSTAINED in part and OVERRULED in part. The request for judicial notice is GRANTED. The motion to strike is MOOT. Request for Judicial Notice The court takes judicial notice of the date plaintiff presented his claim against the City under Cal. Evid. Code §§ 452(h) and 453. However, the court may not take judicial notice of the tr...

Excerpt: ...ich it imposed on 12/14/17 and to issue an updated writ of possession, now that the appeals process has been concluded. (CCP 1176.) The court GRANTS the motion, for the following reasons. CCP 1176 (a) provides that on appeal from a judgment in a unlawful detainer action, no automatic stay shall apply, but this court has discretion to enter a stay. “An appeal taken by the defendant shall not automatically stay proceedings upon the judgment. Peti...

Excerpt: ...Admissions was for good reason. The Requests were served shortly after the Answer was served. A demand letter had been served on defendants' insurer after the action was served, but before the Requests were served. The demand letter, and documents later produced to defendants' counsel, showed that at least one preexisting condition, specifically to the left shoulder. The records showed only post- accident medical history. There were no records wi...

Excerpt: ...owever, the court's authority may be placed into the hands of the arbitrator by language in the arbitration agreement that “clearly and unmistakably” empowers the arbitrator to decide what matters are arbitrible. Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84 There is no “clear and unmistakable” language conferring the decision to determine enforceability to the arbitrator. That said, this is the point at which some of the ar...

Excerpt: ...lishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had...

Excerpt: ...(Doe 3); and (4) Marriott Vacation Club (Doe 4). (Evidence Code 452(d)(1).) The demurrer by defendant Marriott Resorts Hospitality Corporation (erroneously sued and served as Marriott's Newport Coast Villas, DOE 3; erroneously sued as Marriott Vacation Club, DOE 4; erroneously sued as Marriott Vacation Club International, DOE 2; and erroneously sued as Marriott Vacations Worldwide, DOE 1) is overruled. Moving party argues that plaintiff was not g...

Excerpt: ...” of the 2016 case because it deals with the same issues as this case. In fact, Plaintiff admits in his opposition that the same trade secrets are involved in both cases when he asserts he has the right to discovery in this case because he adequately described the trade secrets in the 2016 case. However, on 1-31-2019 the Court of Appeal dismissed Plaintiff's appeal. Therefore the 2016 case may be “resolved”. Accordingly, the court will hear...

Excerpt: ...f Douglas Ramirez to Serve Verified Responses Without Objections to Defendant's Supplemental Interrogatory and Imposition of Monetary Sanctions is GRANTED. (See Code Civ. Proc. § 2030.290). Motion No. 2. Defendant Mercury Insurance Group's Motion for Order Compelling Plaintiff Douglas Ramirez to Serve Verified Responses Without Objections and All Responsive Documents to Defendant's Supplemental Inspection Demand and Imposition of Monetary Sancti...

Excerpt: ...on was filed by Orange Holdings on 11/26/18. There were no objections by Board. On 12/26/18, the court issued its final Statement of Decision. Summarizing, the court found the following:  The Administrative Record shows there was substantial evidence to support Board's revision of its Findings of Fact  There was no violation of procedural due process with regard to the new valuation  There was no abuse of discretion in finding that there...

Excerpt: ...Gansen Law Group, P.C. is not entitled to attorney fees on any other basis; for example, pursuant to a written fee agreement, as indicated in the Notice of Lien. Attorney Gansen has in fact provided evidence that the parties executed a written fee agreement providing for a lien. Absent evidence that Gansen Law Group, P.C. is not entitled to attorney fees at all, on any basis, moving party has not shown that the Notice of Lien contains “irreleva...

Excerpt: ...c., dba “BSI Financial Services” to Plaintiff's Second Amended Complaint (‘2 ndAC”) are each SUSTAINED with leave to amend. (Code Civ. Proc. § 430.10(e)). The Demurrer to the First Cause of Action For Negligence is SUSTAINED on the grounds that the 2 ndAC fails to allege fact sufficient to create a duty of due care in favor of Plaintiff. (Nymark v. Heart Fed. Sav. & Loan Ass'n (1991) 231 Cal.App.3d 1089, 1100). The Demurrer to the Second...

Excerpt: ...party if any party to the action requests attorney's fees and costs upon the initiation of the action. However, if the prevailing party in the court action is not an employee, attorney's fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith. This section shall not apply to an action brought by the Labor Commissioner. This section shall not apply to a surety issuing...

Excerpt: ...esented evidence to create triable issues of material fact as to a prima facie case for violation of Labor Code § 1102.5. Labor Code § 1102.5(b), Civil Code § 1798.81.5(b), McVeigh v. Recology San Francisco (2013) 213 Cal.App.4 th 443, 468. [Plaintiff's Response to Defendant's UMF Nos. 3 and 16.] Also, temporal proximity between the claimed reporting and termination is sufficient to support a prima facie case. Loggins v. Kaiser Permanente Int'...

Excerpt: ... terminating, issue and/or evidentiary sanctions is GRANTED in part as to an evidentiary sanction. C.C.P. § 2023.030(c) but DENIED as to terminating sanctions. Terminating sanctions are to be used sparingly and plaintiff Nancy Horner has submitted to depositions and produced discovery responses, even if not fully compliant with the discovery act. Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4 th 736, 764 to 765. The Parker case is disti...

Excerpt: ...eneral jurisdiction, in that Plaintiff fails to present evidence that demonstrates that Defendant Brook Kozlowski was located in California, or that he conducted sufficient business in California to support general jurisdiction. (Daimler AG v. Bauman (2014) 571 U.S. 117). However, Plaintiff's evidence is sufficient to demonstrate the existence of specific jurisdiction over Defendant Brook Kozlowski. Plaintiff presents evidence that Defendant Kozl...

Excerpt: ...nt AAI conceded a joint employer relationship can exist and presented no argument or authority in support of its general demurrer. Rule 3.1113(b). Hence defendant AAI's general demurrer is overruled. As to the special demurrer, defendant AAI is clearly apprised that plaintiff Anderson is contending AAI is her joint employer. A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably ...

Excerpt: ...to amend. (Code Civ. Proc. § 430.10,(e)). The Demurrers to the First, Second, Third, and Fourth Causes of Action in the 3 rdAC are SUSTAINED without leave on the basis that the 3 rdAC again fails to allege adequate facts to bring the subject loan within the statutory scheme supporting these causes of action. Even if the predicate facts were pled, Civ. Code § 2923.4, which states that nothing in the HBOR shall be interpreted to require a particu...

Excerpt: ... upon giving notice in the manner provided in subdivision (b) of Section 1005. … … (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. (c) A determination by the court that the settlement was made in good faith shall bar any other join...

Excerpt: ... of punitive damages. No allegations of “malice” or intent to injure plaintiff are required, because fraud is an alternative basis for recovery (“oppression, fraud or malice”). (Weil & Brown, Civil Procedure Before Trial, Chapter 6-B, Section 6:165, citing Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610 [“Civil Code section 3294 … treats ‘oppression, fraud, or malice' as separate bases for imposition of exemplary damages �...

Excerpt: ...774 (Ladas).) Code of Civil Procedure section 1033.5 enumerates allowable costs and costs which are not allowable. Even those amounts that are defined as recoverable under section 1033.5, subdivision (a), may only be recovered if they are both reasonable in amount and reasonably necessary to the conduct of the litigation, as opposed to merely convenient or beneficial to its preparation. (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3).) Finally, an ...

Excerpt: ...to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. (b) For purposes of this section: (1) “Actions or tactics” include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading. The mere filing of a complaint without service thereof on a...

Excerpt: ...for waiting time penalties, such a cause of action can be stated against defendant Jeffrey Bulger in his individual capacity based on Labor Code § 558.1, which became effective in 2016. Labor Code § 558.1, McClain v. PQ Beverly Hills, Inc. (CD Cal. 2017) 2017 WL 1250978, and Roush v. MSI Inventory Service Corp. (ED Cal 2018) 2018 WL 3637066. The Reynolds decision in 2005 pre-dates the passage of Labor Code § 558.1. Next, plaintiff Wagner has a...

Excerpt: ...t is time barred by the 3-year statute of limitations under CCP § 338(d). The Complaint does not invoke the delayed discovery rule. Even if it did, the delayed discovery rule does not apply. Constructive notice is the equivalent of actual notice (Citizens for Covenant Compliance v. Anderson(1995) 12 Cal.4th 345, 355). A marriage certificate is a matter of public record. If Alma Bouchot Soto was legally married to someone else, plaintiff would ha...

Excerpt: ...e declaration of Laya Dogmetchi, although no specific request for judicial notice was made by moving parties as to these documents. As to Ex. A, the unpublished Court of Appeal decision, the court takes judicial notice of the opinion, but not as to the truth of factual findings made therein. (Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548; Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1485.) As to Exs. B and C, the court takes ju...

Excerpt: ... manner provided in subdivision (b) of Section 1005. … [¶] … [¶] (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or ...

Excerpt: ...n for Reconsideration is DENIED. (Code Civ. Proc. § 1008). Real Parties' motion was not based upon new or different facts, circumstances, or law, and failed to establish why such facts, conditions, or law were not provided at the initial hearing. The Real Parties' own moving brief cited Gov. Gray Davis Com. v. American Taxpayer Alliance (2002) 102 Cal.App.4th 449, thus it is not a “new” or “different” fact or law. The court's tentative d...

Excerpt: ...way Corporation dba Technologent for an Order Compelling Defendant Mary Gore's Further Responses to Demand for Inspection, Set Two, and For Production of ESI: 5. Motion by Plaintiff Thomas Gallaway Corporation dba Technologent for an Order Compelling Defendant Jonathan Grimm's Further Responses to Demand for Inspection, Set Two, and For Production of ESI: 6. Motion by Plaintiff Thomas Gallaway Corporation dba Technologent for an Order Compelling ...

Excerpt: ...use,” the burden shifts to responding party to justify any objections made to the document production. Kirkland v. Superior Court (2002) 95 Cal.App.4 th 92, 98. Also, defendant Walt Disney Parks and Resorts, U.S., Inc. was ordered two times to produce a privilege log as to any and all documents being withheld under a claim of privilege yet defendant failed to produce any privilege log as ordered. (11-2-19 Minute Order and 11-29-18 Minute Order....

Excerpt: ...rt of corporate/employer liability. Civil Code section 3294 authorizes an award of punitive damages in an action “for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disrega...

Excerpt: ...tion to compel further RFPD responses by plaintiff Nancy Horner was granted as to RFPD Nos. 1, 3, 4, 5, 6, 7, 8, 9, 11, and 17 through 65, plaintiff Nancy Horner is ordered to serve a supplemental verified response to these document requests, in compliance with C.C.P. § 2031.220, within 21 days, and denied as to RPFD No. 66. Plaintiff Horner served supplemental RFPD responses as to both defendant Nationstar and defendant BONY's RFPD. (Declaratio...

Excerpt: ...action but a remedy. (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162; County of Del Norte v. City of Crescent City (1998) 71 Cal.App.4th 965, 973.) Cross-complainants are granted leave to amend, so as to allege injunctive relief as a remedy in connection with another valid cause of action. The remainder of the demurrer is overruled. As to the first, second, and third causes of action, the cross- complaint alleges that cross-defendan...

Excerpt: ...arty to give notice. 2. Application of Jocelyn Wiesner to Appear as Counsel Pro Hac Vice for Defendant Cynosure, Inc.: Attorney Jocelyn Wiesner's application for admission pro hac vice is GRANTED. Attorney Wiesner has presented evidence that her application complies with Rule 9.40. Also, evidence of payment of the $50.00 filing fee to the State Bar of California and service of this application on the State Bar of California has been filed. Moving...

Excerpt: ...al claim. [CCP § 483.010] Upon the filing of a complaint or at any time thereafter, the plaintiff may apply for a right to attach order (“RTAO”) and writ of attachment by filing an application for the order and writ with the court in which the action is brought. (Code Civ. Proc., § 484.010.) The application must be executed under oath and must include the following statements: (1) the attachment is sought to secure the recovery on a claim o...

Excerpt: ...bin Duncan's motion to compel responses to plaintiff's third set of request for admissions by defendant DKG is DENIED because this discovery is untimely. C.C.P. § 2024.020. 3. Motion by Plaintiff Robin Duncan for Leave to Reopen Discovery: Plaintiff Robin Duncan's motion to reopen discovery against defendant Duncan Kitchen Grips, Inc., pursuant to C.C.P. § 2024.050(b), is DENIED. Regan v. Lanet (1987) 197 Cal.App.3d 353, 359 to 360. Plaintiff R...

Excerpt: ...based on some contract. The burden is on plaintiffs to establish the validity of the attachment. Loeb & Loeb v. Beverly Glen Music, Inc. (1983) 166 Cal.App.3d 1110, 1116. Also, since California's attachment law is purely statutory, it must be strictly construed. Kemp Bros. Construction, Inc. (2007) 146 Cal.App.4 th 1474, 1476. The Klein case is distinguishable as it involved a president of a corporation who solicited investment by plaintiff and t...

Excerpt: ...mpel arbitration because there is another, similar action pending in Riverside County that involves a third party; Gary's mother Colleen. A defense to enforcement of an arbitration agreement is that litigation is pending with a third party arising from the same transaction, and there is a possibility of conflicting rulings on common issues. (C.C.P. 1281.2(c).) In such a situation, the court may either  refuse arbitration and order intervention...

Excerpt: ... is DENIED. (Code Civ. Proc. §§ 526 & 527) Plaintiffs' evidence failed to establish a likelihood of success on any of the causes of action in the complaint. (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350). The Plaintiffs fail to provide sufficient evidence to show that the subject mortgage loan falls within the effect of the Homeowner's Bills of Rights. (“HBOR”) The remaining causes of action all flow from the claimed HBOR violatio...

Excerpt: ...iff Daystar Hotels, Inc. to provide further responses to Special Interrogatories, Set One, is granted in part and denied in part. The motion is granted as to Special Interrogatories Nos. 65, 69, 71, and 89. As to Special Interrogatory No. 65, this contention interrogatory requests information supporting a common count, but plaintiff's response refers to the Hotel Management Agreement between the parties. A common count does not lie to enforce an ...

Excerpt: ...Unified Port Dist.) (1978) 20 Cal.3d 844, 864 [medical records]; Davis v. Superior Court(1992) 7 Cal.App.4th 1008, 1014 [medical records]; Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 480-481 [financial records]; Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 528-530 [employment records]; Ins. Code, §§ 791.13, 791.01, et seq. [insurance records].) Defendant has failed to demonstrate a compelling need for the requested...

Excerpt: ...rivacy in his medical records Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014. The subject subpoenas here are overly broad in scope. The subpoenas seek information pertaining to plaintiff's health issues that have nothing to do with the injuries he suffered as a result of the accident at issue. The subpoena issued to plaintiff's employer (or his business) is overly broad both as to scope and time. The party seeking disclosure of the const...

Excerpt: ...n of proof is on the party claiming them as costs.” Id., at 774. But if costs do not appear proper, of if their necessity seems doubtful on their face, and if the items are properly challenged, the burden is on the claimant to establish the need for them. Id. Also, in Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, the court explained: “If the items appear to be proper charges the verified memorandum is prima facie ev...

Excerpt: ... seek Mr. Morgan's entire 59 year medical history. The scope of the subpoenas are fatally overly broad. The party seeking disclosure of the constitutionally protected information bears the burden of establishing direct relevance. (Davis, supra, 7 Cal.App.4th at p. 1017.) There is no opposition to this motion (although there is an opposition for the motions to quash scheduled for next week (August 9, 2018). As such, defendant has not met her burde...

Excerpt: ...ads Hemet's 07/13/18 Undertakings. The court rules as follows: The objection on the grounds that Scott G. Hook is not a proper personal surety is SUSTAINED. Mr. Hook relies upon his residence located at 1800 Port Westbourne Place, Newport Beach, CA 92660 (the “Property”) for the interest in real or personal property required by Code Civ. Proc. §§ 995.510, subd. (a)(3) & 995.920, subd. (b)(3), however he testifies that he does not own the Pr...

Excerpt: ...aration which does not comply with CCP 2015.5 is defective and of no evidentiary value. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal. 4th 601, 612.) 2. Motion by Tony Nguyen to Stay the Case 6 Months: The motion by plaintiff Tony Nguyen to stay this action for six months is denied. Proof of service is defective, as the proof of service of the moving papers does not comply with the requirements for proof of service by either mail or ...

Excerpt: ... (1992) 9 Cal.App.4th 1362, 1369.) A cause of action accrues when “the cause of action is complete with all of its elements.” (Norgart v Upjohn(1999) 21 Cal.4th 383, 397.) “[T]he statute of limitations begins to run when the plaintiff suspects or should suspect that [its] injury was caused by wrongdoing, that someone has done something wrong … the limitations period begins once the plaintiff “has notice or information of circumstances t...

Excerpt: .... (See, TAC, ¶ 155.) Also, plaintiff Manos has not pled facts that any of these sums are actually due to plaintiff Manos rather than some other third parties. Third, plaintiff Manos has not alleged facts that defendant The Wolf Firm as trustee had any role in the reporting of the anti-deficiency judgment for which it received a benefit. The court notes that plaintiff Manos alleged that defendant The Wolf Firm and other defendants again had no au...

Excerpt: ... in Committee on Children's T.V., Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, the court explained that less particularity is required when the parties all have knowledge of the transaction. Id., at 217. The court explained that: “We observe, however, certain exceptions which mitigate the rigor of the rule requiring specific pleading of fraud. Less specificity is required when ‘it appears from the nature of the allegations that the defen...

Excerpt: ...nsurance Company, Inc. by defendant Acampora quashed. (Saperstein Decl. at Exh. 2.) The subpoenas are impermissibly overbroad and seek information protected by plaintiff's right to privacy. (See Britt v. Superior Court (San Diego Unified Port Dist.) (1978) 20 Cal.3d 844, 864 (Britt) [medical records]; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014 [medical records]; Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 480-481 [financi...

Excerpt: ...ica v. State of California, U.S. District Court, Eastern District of California, Case No. 2:18-cv-00490-JAM- KJN. Judicial Notice is GRANTED as to Exhibits 1 and 2 but not as to the truth of each and every entry set forth therein. Evidence Code § 452(d) and Kilroy v. State California (2004) 119 Cal. App. 4th 140, 145 Merits of Motion Trial courts have the authority and discretion to control the order of the proceedings before them. See, C.C.P. �...

Excerpt: ...y against sham pleadings requires the pleader to explain satisfactorily any such omission. Otherwise, the original defect “infects” the subsequent pleading as well, i.e., the self-destructive allegations of the original pleading will be “read into” the amended pleading as well. Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384. Even if plaintiff was attempting to amend the complaint to state Mr. Rosburg hit plaintiff's vehicle twi...

Excerpt: ...4th 826, 850-851 If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burd...

Excerpt: ...matter therein. Defendant Linda Liu's Demurrers to the First Through Sixth Causes of Action in Plaintiff's Complaint are SUSTAINED with leave to amend. Shareholders of a corporation have no direct claim against third parties who may have harmed the corporation, however they may bring a derivative suit on behalf of the corporation if the board of directors refuses to sue. The corporation is an indispensable party to such a suit and must be named a...

Excerpt: ...4th 826, 850-851 If a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) If the defendant meets this initial burd...

Excerpt: ...tiff had not officially retained counsel. (Cisneros v. Vueve (1995) 37 Cal.App.4th 906, 912 [“Because [the attorney] was not representing defendants at the time the default was entered, we find as a matter of law, that he was not the proximate cause of the entry of default”]; Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 442 [“mandatory relief is available only if the default or dismissal ‘was ... in fact cau...

Excerpt: ...of the anti-SLAPP statute, that the attorney fee award in connection with the anti-SLAPP motion should be reduced. However, the merits raised in the motion do not attack the award based on some type of apportionment argument. Instead, plaintiff merely attacks the time and rates of the attorney fee bills. The issue of reasonableness of the time and rate entries has already been determined. If plaintiff wanted to argue some of the entries don't or ...

Excerpt: ...July 19, 2018. The parties' last meet and confer effort appears to have occurred in May 2018, when the operative complaint was the first amended complaint, which did not allege alter ego liability or intentional misconduct. (Wood Decl. at ¶ 5, Exh. C; Orosz Decl. at ¶¶ 10-11, Exh. C.) After this motion was filed, plaintiff successfully sought leave to amend and filed a second amended complaint, which now includes such allegations, significantl...

Excerpt: ...Nagui Mankaruse in Mankaruse v. Raytheon Company et al., U.S. District Court Case No. SAVC12-261JVS (MLGx), Exhibit 2, Order of 8-8-12 Granting Plaintiff Mankaruse's Request for Dismissal in Mankaruse v. Raytheon Company et al., U.S. District Court Case No. SAVC12-261JVS (MLGx), Exhibit 3, Court of Appeal Opinion affirming the judgment in plaintiff Mankaruse's employment law action in Mankaruse v. Raytheon Company, et al., O.C.S.C. Case No. 30- 2...

Excerpt: ... individual defendants for summary adjudication on each issue, and thus any issue that did not resolve a cause of action as to all defendants was not proper issue for summary adjudication. C.C.P. § 437c(f)(1), and Hood v. Superior Court (1995) 33 Cal.App.4 th 319, 321. The issues as framed by defendants were by all defendants as to plaintiff Footprints various causes of action and claim for punitive damages. As to plaintiff Footprints' first cau...

Excerpt: ...ns are located; and  State what allegations are proposed to be added to the previous pleading, if any, by page, paragraph, and line number, the additional allegations are located. CRC 3.1324(a). Here, the motion does not include specific information regarding what allegations are to be added and deleted, but it is very clear what is to be deleted and what is to be added as the newly added language is drafted in a bold font. The original allega...

Excerpt: ...Defendant Fitness International carried its burden on the first element of establishing a suitable alternative forum and that it is amenable to service of process in that forum. Stangvik v. Shiley, Inc. (1991) 54 Cal.3d 744, 752. Next, the second element of private and public factors favor Florida over California. Stangvik, at 751 and Morris v. AGFA Corp. (2006) 144 Cal.App.4 th1452, 1467. Plaintiff Charles Roberson does not contest the following...

Excerpt: ...ver a nonresident defendant who has “minimum contacts” with the forum state: a relationship between the nonresident and the forum state which is such that the exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington (1945) 326 U.S. 310, 316. Types of Personal Jurisdiction. Personal jurisdiction may be general or specific. The Plaintiff opposing a motion to qu...

Excerpt: ...tic contacts with this forum. Vons Companies Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4 th 434, at 445. Also, general jurisdiction has now been limited to a corporation's place of incorporation or its principal place of business absent exceptional circumstances. Daimler AG v. Bauman (2014) 571 U.S. 117, 134 S.Ct. 746, 761 to 762 and Martinez v. Aero Caribbean (9 th Cir. 2014) 764 F.3d 1062, 1070. The Neadeau authority simply based on percentage ...

Excerpt: ..., 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… No affidavit or declaration of merits shall be required of the moving party.” (a). Copy of Proposed Pleading. The motion is not accompanied by a copy of Defendant's proposed responsive. That having been said, this issue is not raised by the Opposition. (b)...

Excerpt: ...iling, as there is no evidence before the court to show why the motion was not timely filed. 2. The motion by plaintiff Tony Nguyen to change venue and transfer this action to Los Angeles County is denied. The court previously denied a motion by this same moving party, seeking the same relief, on 3-29-18; and, moving party has not complied with CCP 1008. Moreover, moving party fails to provide any admissible evidence to support the request, as th...

Excerpt: ...y shall be based upon the ground, and supported by a showing, that the plaintiff is a vexatious litigant and that there is not a reasonable probability that he or she will prevail in the litigation against the moving defendant. CCP 391(b) defines “vexatious litigant” as follows: (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims ...