Excerpt: ...tural Materials Co. (1981) 123 Cl.App.3d 593, 604). The Demurrer to the Second Cause of Action For Failure to Timely Pay Wages is SUSTAINED with leave to amend, on the basis that the FAC fails to allege facts demonstrating Plaintiff's daily wage rate. The Demurrer to the Third Cause of Action For Failure to Provide Wage Statements is OVERRULED. The Demurrer to the Fourth Cause of Action For Waiting Time Penalties is SUSTAINED with leave to amend,...

Excerpt: ...emains standing. (See Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.4th 24, 36.) The cross-complainants have alleged sufficient facts in support of their first cause of action for breach of verbal contract. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; XC at ¶¶ 6-9.) The cross-complainants do not have to allege facts to overcome potential defenses to a claim in order to properly plead it, and nothing o...

Excerpt: ...ort a writ of attachment against a natural person. C.C.P. § 430.10(c). 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 corpora...

Excerpt: ...the Petition fails to identify a mandatory statutory or other duty imposed by City ordinance which requires Respondents to: (i) “Declare a conflict as to Respondent City of Newport Ceach and Respondent Harp”; and (ii) to “…appoint special counsel to prosecute the violations.” For the court to issue a writ of mandate to compel performance of a duty, such duty must be mandatory in nature. Fry v. City of Los Angeles (2016) 245 Cal.App.4th ...

Excerpt: ...of public policy. “The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff's employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) Moving Party contends this cause of action fails because defendant never...

Excerpt: ...ject to discretionary judicial notice under Evid. Code § 452(d). The court grants judicial notice. - State Bar Decision. This is a governmental record subject to discretionary notice. As the decision involves the taking of evidence, and one or more legal conclusions, which is not binding upon this court, the court exercises its discretion and declines to take judicial notice of the State Bar Decision. - OC Sherriff's Control Log and Police Repor...

Excerpt: ...hould be raised by way of demurrer and/or motion to strike. Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. Defendant Team Haley LP is ordered to e-file and serve its compulsory cross-complaint on plaintiffs Cynthia Armstrong and Tice Griffin within 5 court days and to serve non-party Nancy Adair within 21 days. Any prejudice caused by the pending trial date of 9-17-18 can be ameliorated by a short continuance of the tria...

Excerpt: ...order granting the anti-SLAPP motion filed by defendants Stephen Madoni and Charles McHugh in Leone I, dated November 3, 2016; 4. Notice of entry of judgment on Sorensen's complaint as to defendants Stephen Madoni and Charles McHugh in Leone I, dated November 10, 2016; 5. Minute order granting defendants' motion for attorney fees on anti-SLAPP motion in Leone I, dated February 2, 2017; 6. Complaint filed by Sorensen in Sorensen v. Gardner, et al....

Excerpt: ...entified party in September 2016. (See McGlinn Decl. at ¶¶ 2-3.) While plaintiffs have identified a potential overriding interest supporting the requested sealing, i.e., the NDA (see McGlinn Decl. at ¶ 2), plaintiffs have failed to demonstrate a substantial probability, or any probability for that matter, that the interest will be prejudiced absent sealing, a necessary prerequisite to a sealing order. McNair v. National Collegiate Athletic Ass...

Excerpt: ...the alleged trade secret with reasonable particularity. The first and sixteenth affirmative defense are not really affirmative defenses because defendants have no burden of establishing any new matter such that plaintiff should be barred from recovery. See, C.C.P. § 431.30(b) and Walsh v. West Valley Mission Comm. (1998) 66 Cal.App.4th 1532, 1546. As to defendants' second affirmative defense of the statute of limitations facts do not have to be ...

Excerpt: ...mended complaint. Second, a demurrer to an entire to complaint may be overruled if any cause of action is properly stated. C.C.P. § 430.50 and Warren v. Atchison, Topeka & Santa Fe Ry. Co. (1971) 19 Cal.App.3d 24, 36. The Court of Appeal Opinion sets forth that plaintiff Stark has stated a cause of action for Conspiracy to Harass based on the tort of IIED. Third, even if construed as a demurrer to all causes of action except as to plaintiff Star...

Excerpt: ... Hsu v. Abbara (1995) 9 Cal.4th 863, 875 to 876. Also, attorney's fees for litigation before answer is filed are recoverable. Stokus v. Marsh (1990) 217 Cal.App.3d 647, 656. The parties also agreed that the issue of attorney's fees as damages would be decided by post-trial motion. The court finds sums set forth above reasonable and necessary as to both attorney's fees and costs. PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 10984, 1095. Moving pa...

Excerpt: ...iled 9 court days before the continued hearing date of 5-31-18. Otherwise attorney W. Edward Shipe's application complied with the other provisions of Rule 9.40 for admission pro hac vice. Moving party to give notice. 2. Application for Pro Hac Vice Admission of John A. Lucas by Defendants Procon Analytics, LLC, Advantage GPS, LLC, Connected Holdings, LLC, Oigo Telematics, LLC, Procon Inc., and Brian Boling: Attorney John W. Lucas' application fo...

Excerpt: ...gment on the Pleadings on the Cross-Complaint filed by Decedent Carl Bergeman: Cross-defendant Dominic J. Antonini's motion for judgment on the pleadings as to the cross- complaint by decedent Carl V. Bergeman is granted in part and denied in part. GRANTED, with 10 days leave to amend, if cross-complainant Vincent Bergeman as personal representative can plead facts as to some economic loss to support the cause of action for IIED. See, County of L...

Excerpt: ...they each had an oral agreement not be terminated except for “good cause” and that defendants required plaintiffs to sign an agreement with an improper non-competition clause and when plaintiffs refused to do so their employment was terminated without good cause. As to declaratory relief, plaintiffs have alleged an actual controversy as to breach of the buyout agreement that will support this cause of action at this pleading stage. In Ludgate...

Excerpt: ...aintiff's case distinguishable. In particular, unlike plaintiff Ormsbee's case, there is not a heavy comparative fault issue as to other parties as is present in plaintiff Ormsbee's case. The court finds that the value of plaintiff Ormsbee's civil action, taking into account Proposition 51, is no more than $1,750,000.00. Utilizing the formula set forth in Ahlhorn, the court finds that the value of the $500,000.00 settlement in this case attributa...

Excerpt: ...claims. The motion for summary adjudication by defendants Walt Disney Parks and Resorts U.S. Inc. and Kevin Moseley as to plaintiff Jesus Licea's employment law complaint is granted in part and denied in part. GRANTED as to defendant Kevin Moseley's motion for summary adjudication that he has no individual liability as supervisor for violation of FEHA, CFRA and for wrongful termination in violation of public policy. Reno v. Baird (1995) 18 Cal.4t...

Excerpt: ...et al. have a demurrer and motion to strike pending as to plaintiff Gaff's amendment to third amended complaint. In addition, the trial set for 6-4-18 is ordered vacated and trial is re-set for 10-29-18, at 8:30 a.m., in Department C-33. Relatedly, all pre-trial cutoff dates are continued to the new trial date of 10-29-18. Moving parties to give notice. 2. Demurrer of Defendants Mehrdad Mark Moshayedi and Classic Investments to Third Amended Comp...

Excerpt: ...lish that any of its objections had merit. See, Coy v. Superior Court (1962) 58 Cal.2d 210, 202 to 221. Of note, it appears that plaintiff Currey is willing not to depose Erich Kemnitz, Wiliam G. Ballard and Eric L. Kalis if defendant Ford Motor Company will not call any of these witnesses at trial. This ruling is without prejudice to the parties stipulating, in writing, that the depositions of Erich Kemnitz, Wiliam G. Ballard and Eric L. Kalis w...

Excerpt: ...C.P. § 2024.020. Relatedly, moving parties have not moved to re-open discovery pursuant to C.C.P. § 2024.050. Without establishing that discovery should be re-opened trial court cannot order further discovery. See, Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586 to 1588. Trial remains set for 5-7-18. Moving parties to give notice. ...

Excerpt: ...ely in the trial court's discretion. Cooney v. Cooney (1944) 25 C2d 202, 208 Here, the motion has been made within a reasonable time. It was filed less than a month after defendant was served with the summons and complaint. CCP § 395 states in part: (a) Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or so...

Excerpt: ...h filed his first amended complaint on 01/31/18, further amendments (such as joining Mr. Brooks as a party Plaintiff) required court approval. Code Civ. Proc. § 472. On its own motion, the court takes judicial notice of the fact that it did not grant Plaintiff leave to amend his complaint to join Arthur Brooks, dba “Art Brooks Sea Company” as a party plaintiff. Thus, the court holds that Mr. Brooks was not a named party to this action as of ...

Excerpt: ... to two employees for business purposes. Moving Party states there was no “Easter” celebration and the information regarding the theft was not made by defendant to any family member. In opposition, plaintiff contends the allegations of the First Amended Complaint must be taken as true and defendants have alleged the misrepresentation was made with malice. Plaintiff contends the allegations show defendants “wrongfully terminated Gary based o...

Excerpt: ...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 to put a reasonable person on inquiry …” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110–1111.) Wh...

Excerpt: ...an infringement action.” Ultrapure Systems, Inc. v. Ham-Let Group (N.D. Cal. 1996) 921 F.Supp. 659, 665. Lack of standing is grounds for a general demurrer. (Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224.) Plaintiff's Opposition concedes this omission and states that the complaint can be amended to address this; accordingly, leave to amend is granted. Moving parties' other arguments are rejecte...

Excerpt: ... set of requests for production served on JYP Investments, LLC, is DENIED as untimely. The last day any party to this action had a right to have any discovery motions heard was 15 days prior to the trial date of January 2, 2018, which was Monday, December 18, 2017. (Code Civ. Proc., § 2024.020.) It is well past this deadline. Plaintiffs have not moved for a request to have this motion heard after this deadline as required under Code of Civil Pro...

Excerpt: ...nue trial and to leave the discovery cutoff based on the initial trial date was entered into. California law favors resolution of cases on their merits. Elston v. City of Turlock (1985) 38 Cal.3d 227, 233. Lack of diligence to support denial of leave to re-open discovery in the civil action before this court as to defendant Christopher Reyes is not shown. Plaintiffs request for sanctions against defendant Reyes and his counsel, pursuant to C.C.P....

Excerpt: ....” Case law interpreting this statute provides for discretion in determining prevailing party. Thus a party seeking an award of attorney's fees, pursuant to Civil Code § 5975(c), must establish that they prevailed on claims to enforce the governing documents. Plaintiff Anthony Lam Nguyen sued defendant The Townhomes Association for enforcement of the governing documents and for wrongful lien. (See, Plaintiff's Complaint.) Summary judgment was ...

Excerpt: ...Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“[f]ollowing an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order”].) For the sake of efficiency, however, the court will exercise its discretion to allow the amendment. (Weingarten v. Block (1980) 102 Cal.App.3d 129, 134 [trial court has broad discretion to allow...

Excerpt: ...re additional items identified in Attachment 1g that bring the total to $1,770.00. The items in 1.g do bring the total to $1,770.00. The items are filing fees for an ex parte hearing, the MSJ/MSA and two $10 entries for the electronic filing fees related to oppositions. Item 4 – deposition costs Defendant has explained he was the only defendant present at the deposition of plaintiff. Further, despite plaintiff's protestations to the contrary, d...

Excerpt: ...prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain.” Rule 3.1332(b) provides that the court may order a trial continuance upon an affirmative showing of good cause. See also, Rutter, Civil Procedure Before Trial, Section 12:453. Rule 3.1332(c) sets forth several specified grounds constituting good cause for a continuance. “Circumstances that may...

Excerpt: ...n for open book account, fourth cause of action for unjust enrichment/constructive trust and fifth cause of action for accounting. Courts do not grant summary judgment on two causes of action with a plaintiff agreeing to dismiss other causes of action if “summary judgment” as to two other causes of action is granted. Second, as to summary adjudication, plaintiff Eco's motion for summary adjudication as to plaintiffs' first cause of action for...

Excerpt: ...sufficient is not grounds to grant or deny the motion for judgment on the pleadings” (CCP 439(a)(4)), its requirements are otherwise mandatory. Here, the motion was filed on 1-3-18, and is thus subject to CCP 439. However, Moving Party did not file the required declaration. Responding Party's Opposition raises this defect [as well as arguing the merits of the motion]. Moving Party's Reply argues that the issue of meeting and conferring “was a...

Excerpt: ...ge in the meet and confer process set forth in Code of Civil Procedure §430.41. That section mandates the “demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Cal. Civ. Proc. Code § 430.41 The declaration filed in connection with this...

Excerpt: ...ust 2014 that are in the possession, custody or control of these defendants. As to RFPD Nos. 1 and 2, the court exercises its discretion and sets an evidentiary hearing for 5-7-18, at 9:30 a.m., in Department C-33.Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. The court will hear evidence, including live witnesses, on the following issues: (1) whether an implied attorney-client relationship arose between plaintiff Andrew Oshay as Tru...

Excerpt: ...were in dispute. Plaintiff contends the wrongful conduct was the fact Responding Party instructed the insurance carrier to hold back all attorney fees from the settlement check, (including plaintiff's alleged fees of $83,333.34) despite the fact plaintiff had already agreed to keep defendant's claimed $5,000 lien in his trust account pending an agreement as to the amount of the lien. That act gave defendant an unwarranted advantage over plaintiff...

Excerpt: ...eading stage. Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D. Cal. 2010) 732 F.Supp.2d 952, 958. As to breach of contract, plaintiff Revel failed to attach the residential lease agreement as Exhibit 1 as alleged, but has alleged sufficient facts as to the legal effect of the contract and the nature of the breaches to state a cause of action for breach of contract. Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 126 Cal.4 th 1...

Excerpt: ...te Statement, Fact Nos. 1-4, 25, 266, 267, 279.) As to the second cause of action for breach of contract, there are triable issues as to the terms of the alleged contract, plaintiff's performance, and breach. (Moving Party Separate Statement, Fact Nos. 23-30 [contract terms], 33-35 [performance and/or excuse for nonperformance, damages], 37, 38 [breach]; Responding Party Separate Statement, Fact Nos. 23, 24, 25 [terms], 31, 34, 303-305, 307, 308 ...

Excerpt: ...ust 2014 that are in the possession, custody or control of these defendants. As to RFPD Nos. 1 and 2, the court exercises its discretion and sets an evidentiary hearing for 5-7-18, at 9:30 a.m., in Department C-33.Mutual Mortgage Co. v. Avis (1986) 176 Cal.App.3d 799, 805. The court will hear evidence, including live witnesses, on the following issues: (1) whether an implied attorney-client relationship arose between plaintiff Andrew Oshay as Tru...

Excerpt: ...033.290(c).) The parties agreed to extend the statutory deadline to file the instant motions to 12-22- 17. (Ex. F to respective motions.) However, the motions were not filed until 12-28-17. A party seeking to compel further responses to discovery must file the motion within the statutory deadline, or its right to do so is waived; a court is without jurisdiction to do anything but deny the motion if filed after that time, even in the absence of wr...

Excerpt: ... trial commences. 08:57 am The court and counsel discuss legal issues. All parties stipulate that the Cross-Complaint is a derivative lawsuit on behalf of Lock & Lock USA Distributor, Inc. 09:15 am The court is adjourned in this matter. (1/2/18 Minute Order.) Subsequently on January 11, 2018, the court set an MSC for April 6, 2018, and continued phase two of the jury trial to May 7, 2018. The court did not continue the discovery and discovery hea...

Excerpt: ...ged. It is not sufficient that the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4 th 1397, 1403. The Cross-Defendant argues that the Settlement Agreement was executed in April of 2009, and as the purported scrivener's error occurred at that time, the action is barred by the statute of limitations at CCP § 337(1). Cross-Complainant argues that a new cause of action arises each time a wrongful action occurs, i.e...

Excerpt: ...sserting a cause of action as a counterclaim, such cause shall be asserted as a cross-complaint. The erroneous designation of a pleading as a counterclaim shall not affect its validity, but such pleading shall be deemed to be a cross-complaint. Even if the court could consider the counterclaim as a cross-complaint and rule on the merits, the pleading is still procedurally defective. A cross-complaint may not be asserted as part of an answer. The ...

Excerpt: ...ect Judicial Council forms and has met the other requirements to grant the requested relief, the Moving Party has not stated that good cause exists for the requested relief. RULING: Attorney Lisa G. Salisbury's motion to be relieved as counsel of record for Plaintiff Tukhi Business Group, LLC is conditionally granted upon evidence at the hearing as to “good cause” for the requested relief. The submitted declaration of attorney Salisbury is in...

Excerpt: ...ion of its pending motion for judgment on the pleading will be rendered moot if the motion to substitute in personal representative is granted. Hence the court exercises its discretion to hear these matters together on 5-3-18, at 1:30 p.m., in Department C-33. Moving party to give notice. Plaintiff/Cross-Defendant Dominic J. Antonini's Request for Judicial Notice: Plaintiff/cross-defendant Dominic J. Antonini requested that the court take judicia...

Excerpt: ...is impossible to determine which Defendant committed what wrongdoing. This in turn renders the complaint such that the Defendant cannot reasonably respond. See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616. Additionally, as most of the underlying liability sounds in deceit, the use of a collective reference for the 14 various entity Defendants will result in the pleading being subject to demurrer for failure to allege the fra...

Excerpt: ...endants Sidley and McNicholas to plaintiff Coleman's second amended complaint was sustained on the ground of uncertainty. (2-8-18 Minute Order.) In plaintiff Coleman's second amended complaint, plaintiff's definition of “Defendants” included defendants Sidley and McNicholas based on Paragraph 11 of plaintiff' second amended complaint and thus the regular use of “Defendants” left it unclear what allegations were being made against defendan...

Excerpt: ...re trial, and it cannot represent itself in litigation. An uncontested judgment at trial against Hyperion will also substantially prejudice the ability of Mr. Nazarain to defend himself at trial in his capacity as the guarantor of Hyperion's debt. Without more evidence as to the nature of the “breakdown of attorney-client relationship” (i.e. whether counsel's withdrawal is based upon facts requiring mandatory withdrawal or whether counsel's w...

Excerpt: ... offer and the signed written agreement providing for binding arbitration in reply by Ms. Andrea Mullens, defendants carried their burden of establishing a written agreement containing a provision for binding arbitration entered into with plaintiff Tara Johnson. Also, this written agreement evidences that plaintiff Johnson's FEHA claims for harassment, discrimination, retaliation, and related employment claims are within the scope of this agreeme...

Excerpt: ... subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” Moving Party shall file and serve a declaration detailing compliant meet and confer efforts no later than five court days prior to the continued hearing date. ...

Excerpt: ...ount of $240,000, which represents damages from April 2017 through the date of this hearing. Plaintiff has met his initial burden on this motion. The evidence shows plaintiff and FEE entered into the subject settlement agreement, which required FEE to pay certain sums to plaintiff as set forth in paragraphs 2 and 3 therein. (Fakouri Decl. at ¶ 2, authenticating FAC at Exh. A [subject settlement agreement]; Maryam Ewalt Decl. at ¶ 4, Exh. A) The...

Excerpt: ...ns filed 3-9-17.) Rule 3.110(g) provides that: “If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default.” The ...

Excerpt: ...this basis in a criminal case by a criminal defendant. This is not a criminal case and moving parties are plaintiffs, not defendants. Moving party also cites 28 USC 1404, which authorizes changes of venue in federal district courts. This authority is not applicable to this state court action either. Rather, the correct authority would be C.C.P. § 397(b): “The court may, on motion, change the place of trial … [w]hen there is reason to believe...

Excerpt: ...likelihood that a fair and impartial trial cannot be had in the county. When a change of venue is ordered by the superior court, it shall be for the trial itself. All proceedings before trial shall occur in the county of original venue, except when it is evident that a particular proceeding must be heard by the judge who is to preside over the trial. (b) On its own motion or on motion of any party, to an adjoining county when it appears as a resu...

Excerpt: ...Amended Complaint by these defendants, and granted plaintiff leave to amend. While plaintiff apparently served an amended pleading on Moving Parties, none was filed with the court. The motions were originally heard on 2-22-18, and continued in order for plaintiff to file the amended pleading with the court, but none was filed. The court notes that moving parties filed and served a notice of continuance, but proof of service of that notice was def...

Excerpt: ...trate 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 the revocation of the agreement. … Public policy favors enforcement of arbitration agreements under state law (Madden v. Kaiser Found. Hospitals, Inc. (1976) 17 Cal.3d 699, 706-707), and any doubts as to whether an arbitration clau...

Excerpt: ...ed 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 of business conduct by a non-resident corporation in a forum state has thereby been negated as a basis for general jurisdiction. As to specific jurisd...

Excerpt: ... provides: “Community property is subject to enforcement of a money judgment as provided in the Family Code.” Family Code section 910 provides: (a) Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a ...

Excerpt: ...ecede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5 [not applicable here]. … If the decision of the court, or the verdict of the jury upon the issue of liability so tried shall be against any party on whom liability is sought to be imposed, or if the decision of the court or the verdict of the jury upon any other issue or part thereof so trie...

Excerpt: ...against only the (1) seller aka “retailer” or “retail seller,” (2) distributor, and/or (3) manufacturer of the subject vehicle, as those terms are defined in the Song-Beverly Act. (See Civ. Code, §§ 1791, subds. (e), (j), (l) [defining retailer, distributor, and manufacturer], 1791.2 [defining “express warranty”], 1791.1 [defining implied warranty of merchantability], 1792 [manufacturer's and retailer's implied warranty of merchanta...

Excerpt: ... in on the motion to strike. On January 11, 2018, the court granted the motion to strike to the extent the third amended cross-complaint was brought by cross-complainant LL USA, because LL USA already had an active cross-complaint (i.e., the second amended cross-complaint filed on July 13, 2016) on file when it filed the third amended cross-complaint and did not seek leave of court before doing so. The court allowed the third amended cross-compla...

Excerpt: ...es Corp. (1996) 14 Cal.4 th 394, 413. Defendant Alfredo Cervantes is covered by this agreement as he is being sued for conduct within the scope of his agency for defendant AG Seal Beach, LLC. See, Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4 th 1013, 1021. Alternatively, the doctrine of equitable estoppel is applicable as plaintiff Montoya's claims against defendant Alfredo Cervantes are intertwined with plaintiff's cla...

Excerpt: ...mination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. … (e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial procee...

Excerpt: ... provides: “Community property is subject to enforcement of a money judgment as provided in the Family Code.” Family Code section 910 provides: (a) Except as otherwise expressly provided by statute, the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a ...

Excerpt: ... in on the motion to strike. On January 11, 2018, the court granted the motion to strike to the extent the third amended cross-complaint was brought by cross-complainant LL USA, because LL USA already had an active cross-complaint (i.e., the second amended cross-complaint filed on July 13, 2016) on file when it filed the third amended cross-complaint and did not seek leave of court before doing so. The court allowed the third amended cross-compla...

Excerpt: ...ecede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5 [not applicable here]. … If the decision of the court, or the verdict of the jury upon the issue of liability so tried shall be against any party on whom liability is sought to be imposed, or if the decision of the court or the verdict of the jury upon any other issue or part thereof so trie...

Excerpt: ...mination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. … (e) As used in this section, "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial procee...

Excerpt: ...es Corp. (1996) 14 Cal.4 th 394, 413. Defendant Alfredo Cervantes is covered by this agreement as he is being sued for conduct within the scope of his agency for defendant AG Seal Beach, LLC. See, Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4 th 1013, 1021. Alternatively, the doctrine of equitable estoppel is applicable as plaintiff Montoya's claims against defendant Alfredo Cervantes are intertwined with plaintiff's cla...

Excerpt: ...against only the (1) seller aka “retailer” or “retail seller,” (2) distributor, and/or (3) manufacturer of the subject vehicle, as those terms are defined in the Song-Beverly Act. (See Civ. Code, §§ 1791, subds. (e), (j), (l) [defining retailer, distributor, and manufacturer], 1791.2 [defining “express warranty”], 1791.1 [defining implied warranty of merchantability], 1792 [manufacturer's and retailer's implied warranty of merchanta...

Excerpt: ...et One, are denied as untimely. (CCP 2030.300(c), 2033.290(c).) The parties agreed to extend the statutory deadline to file the instant motions to 12-22- 17. (Ex. F to respective motions.) However, the motions were not filed until 12-28-17. A party seeking to compel further responses to discovery must file the motion within the statutory deadline, or its right to do so is waived; a court is without jurisdiction to do anything but deny the motion ...

Excerpt: ...uty fails as plaintiff has not stated sufficient facts illustrating a fiduciary relationship between plaintiff and this Moving Party defendant. The claim for violation of B&P § 17200 fails as it is based on the alleged defective claims. Plaintiff has not sufficient alleged any unlawful, unfair and/or fraudulent conduct on the part of this Moving Party defendant to support her claims. Future Hearings: CMC: 4/4/18 8:30 am ...

Excerpt: ... the medical diagnosis and prognosis of any party.” may be submitted to support a motion for preference. CCP §36.5 Attorney Kohan's Declaration is not sufficient under this section. He does not state a diagnosis or prognosis learned from the family or medical records. He says only that he has been informed Nada has a “debilitating hip injury,” providing details of the procedure and time spent in a nursing home. He says she doesn't leave th...

Excerpt: ...service under the Hague Convention at considerable expense. Plaintiffs ask that the court stay the action upon ordering the claims to binding arbitration as opposed to a dismissal. Plaintiffs object to the demand of costs. The Plaintiffs have never refused submit to arbitration, they simply did not agree to dismiss this action before the arbitration award was issued. Because this is action not a petition to compel arbitration, but a civil lawsuit...

Excerpt: ...w a matter for a meet and confer and a motion to compel further responses if the parties cannot informally resolve plaintiff's claimed defects. Plaintiff Iyad, Inc. is awarded sanctions of $1,200.00, pursuant to C.C.P. § 2030.290(c), payable by defendant Mohammed Hossein within 30 days. The court notes that while plaintiff Iyad, Inc.'s initial notice failed to include a request for sanctions, plaintiff Iyad, Inc.'s amended notice of motion filed...

Excerpt: ...bjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” It is not sufficient to show that the defendant's conduct was negligent, grossly negligent or even...

Excerpt: ...aintiff Channry's employment law claims are within the scope of this agreement. Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4 th 394, 413. The burden thus shifted to plaintiff Victoria Channry to establish some ground such that arbitration should not be compelled. Correctional Peace Officers Ass'n v. State of Calif. (2006) 142 Cal.App.4 th 198, 205. Plaintiff Channry has not filed any opposition and/or presented evidence to es...

Excerpt: ...r the nature of any right to payment from Durst; specifically, whether Judgment Debtor is an employee of Durst, or if her payments are earnings, in which case the proper collections method is an earnings withholding order. (Ahart, et al., Rutter Group, Enforcing Judgments and Debts, Chapter 6D-3, Sections 6:396 and 6:573; Chapter 6G-5, Sections 6:1422.5 et seq. and 6:1430 et seq.; Chapter 6F- 2, Sections 6:1076, 6:1103 et seq.; CCP 706.020.) The ...

Excerpt: ...plaint ceases to have any effect either as a pleading or as a basis for judgment.” (Ibid.) 2. Cross-defendant Yorba Linda Water District's motion for summary judgment/adjudication directed at cross-complainant Wailea Property Partners, LLC's cross-complaint is DENIED. The court has treated this motion as one for summary judgment only, as cross-defendant Yorba Linda Water District (District or YLWD) has failed to comply with California Rules of ...

Excerpt: ...laintiff was unaware of defendant's intention not to perform the promise; (4) plaintiff justifiably relied upon the promise; and (5) plaintiff sustained damage. (CACI 1902.) Furthermore, fraud claims must be pled with particularity, including facts showing “how, when, where, to whom and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Responding Party's fraud C/A in the Second Amended Com...

Excerpt: ...shall not be thus issued or delivered to any person in this state unless it contains all the following provisions: (1) A provision that the insolvency or bankruptcy of the insured will not release the insurer from the payment of damages for injury sustained or loss occasioned during the life of such policy. (2) A provision that whenever judgment is secured against the insured or the executor or administrator of a deceased insured in an action bas...

Excerpt: ...dants' demurrer to plaintiff Mankaruse's unverified, first amended complaint: Exhibit 1, Complaint in Mankaruse v. Raytheon Company, et al., O.C.S.C. Case No. 30- 2014-00732670 filed on 7-7-14, Exhibit 2, the Order of 11-9-16 dismissing plaintiff Mankaruse's cause of action for fraud and deceit in plaintiff's 2014 civil action for failure to timely amend, Exhibit 3, the Notice of Entry of Order Regarding Defendants' Demurrer to First Amended Comp...

Excerpt: ... ordered to serve verified, non-evasive responses to the interrogatories without objections within ten days. Motion No. 3. Plaintiff's Motion Compelling Defendant Mindy Kennedy Alvarez to Serve Verified Responses Without Objections to Plaintiff's Inspection Demand, Set No. 1, is GRANTED. Defendant is ordered to serve verified, non-evasive responses to the inspection demands without objections and all responsive documents and things within ten day...

Excerpt: ...cause for a continuance. “Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only wher...

Excerpt: ...filed by Fairway Insurance, and if not, why not. Defense counsel's supplemental brief to be filed 9 court days before the continued hearing date. Any opposition by defendant Tim Roham, D.O., Inc. to be filed 5 court days before the continued hearing date of 3-22-18. The court notes that defense counsel remains counsel of record for defendant Tim Rohan, D.O. Inc. at this time because defense counsel's motion to withdraw as counsel has not been gra...

Excerpt: ..., Inc. (LL USA), Jinyoung Park (Park), and JYP Investments, LLC (JYP) (collectively, defendants). (See Code Civ. Proc., §§ 484.090, 481.190, 482.040; see also Weil, et al., Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group June 2017 Update) Ch. 9(II)-D at ¶¶ 9:948, 9:948.1.) With respect to the first cause of action for breach of contract, the evidence shows the terms of the subject contracts were memorialized in part in written...

Excerpt: ...se by Monday, 2-26-18, by fax or overnight delivery to counsel for plaintiff Perez. Plaintiff Perez's request for monetary sanctions against defendant Pho Hoa Soan, Inc. is GRANTED in the sum of $3,120.00, pursuant to C.C.P. § 2031.320(b), payable by defendant Pho Hoa Soan, Inc. within 21 days. Finally, plaintiff Perez's request for issue and/or evidentiary sanctions is DENIED as defendant Pho Hoa Soan, Inc. has not violated any prior discovery ...

Excerpt: ...on within an action, one or more affirmative defenses, one or more claims for [punitive] damages, or one or more issues of duty”]; McCaskey v. California State Auto. Assn. (2010) 189 Cal.App.4th 947, 975 [court cannot grant summary adjudication “‘to the extent' a cause of action rests on this or that premise”].) With respect to defendant's first contention that the first amended complaint is a sham pleading, the sham pleading doctrine is ...

Excerpt: ...ance. Defense counsel has provided no authority in support of its opposition to this motion. The court need not consider points unsupported by legal analysis or authority and such points are deemed waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784- 785; Walters v. Boosinger (2016) 2 Cal.App.5th 421, 433, fn. 16.) Plaintiff's request for judicial notice is GRANTED. Plaintiff to give notice. Future Hearings: CMC: 3/14/18 8:30 am ...

Excerpt: ...lled legal training and ability in trying the cause, and the time consumed. (Stokus v. Marsh(1990) 217 CA3d 647, 657.) Here, Defendants wish to cap the fee award at no more than $70,548.00. There are 5 challenged items. Three items (dates of 11/19/14, 8/29/17, and 10/16/17) list the task of “legal research.” Another item (dated 1/21/16) lists the task of “analyze account history.” The last item (dated 10/13/16) lists the task “review an...

Excerpt: ...ive, Suite 100, Santa Ana, California, 92707. The parties may, at their discretion, meet and confer to schedule a different date/time/place for the deposition. However, the deposition shall occur no later than March 15, 2018. Defendants are awarded sanctions against plaintiff in the amount of $976.00, not the entire amount of $2,588.50. Defendant knew the day before the deposition that plaintiff was not going to show up. There was no need for him...

Excerpt: ...ndant. The court finds that the objections raised in the response and amended response are without merit. The arguments as to attorney client privilege are also without merit, and have been waived by failing to assert the same in the initial response to the interrogatory. Code Civ. Proc. § 2030.290(a). A party to litigation can obtain contact information for an opposing party even if that party is represented by legal counsel without involving a...

Excerpt: ...uses of action for void/fraudulent transfer alleged against defendants Lock & Lock USA Distributor, Inc. (LL USA), Jinyoung Park (Park), and JYP Investments, LLC (JYP) (collectively, defendants). (See Code Civ. Proc., §§ 484.090, 481.190, 482.040; see also Weil, et al., Cal. Practice Guide: Civil Proc. Before Trial (The Rutter Group June 2017 Update) Ch. 9(II)-D at ¶¶ 9:948, 9:948.1.) With respect to the first cause of action for breach of co...

Excerpt: ...dants” in her fourth, fifth and sixth causes of action to mean the Sidley Austin Defendants. (See, SAC, ¶¶ 99, 100, 107, 108, 114 and 115.) The Sidley Austin Defendants are entitled to be apprised what allegations are against them versus the other named co-defendants in this case. Plaintiff Coleman should ensure that her allegations satisfy the standards discussed in the Carter cases against these moving defendants. See, Casey v. U.S. Bank Na...

Excerpt: ...ction for cancellation of instruments. Also, the potential loss of unique property by way of a foreclosure sale constitutes irreparable harm. See, Evidence Code § 3387. Finally, the balance of harms favors plaintiff Moez, LLC. Prevailing party to give notice. Plaintiff SGFC, LLC's Request for Judicial Notice: Defendant SGFC, LLC requested that the court take judicial notice of the following documents in support of its opposition: Exhibit 1, Bank...

Excerpt: ...acturer of the table saw that injured plaintiff Sotelo. Co-defendant Garfield International Company, Inc. identified “Powermatic” as the manufacturer of the power saw that injured plaintiff Sotelo. Defendant JPW Industries, Inc. has now appeared claiming it was improper named as “Powermatic Tools,” but then defendant JPW presents evidence that it was not the manufacturer of the table saw that is the basis of plaintiff Sotelo's product lia...

Excerpt: ...en of demonstrating that the records he seeks to redact and/or have sealed is necessary to overcome the presumption that court records are to be publicly available. See, H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4 th 879, 898. Prevailing party to give notice. Future Hearings: MSC: 7/13/18 8:30 am Trial: 8/13/18 8:30 am ...

Excerpt: ...on for Leave to File Third Amended Complaint Against Defendants Orange County Sheriffs' Department, et al. Plaintiff Jerome Stark's motion for leave to file a third amended complaint is GRANTED. See, C.C.P. § 473(a)(1) and Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Also, leave to amend is favored even if trial must be continued. See, Honig v. Financial Corp. of America (1992) 6 Cal.App.4 th 960, 965. Challenges to the amended compl...

Excerpt: ...d plaintiff's evidence shows there was none. (See D. White Decl. at ¶ 2.) Defendants have also failed to demonstrate ostensible agency. The fact that Derek signed the arbitration agreement as decedent's “Representative/Agent,” stating decedent had authorized him to do so, is not sufficient to demonstrate ostensible authority. An “agency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to cr...

Excerpt: ... narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” Additionally, pursuant to CRC 2.551, a Court may not permit a record to be filed under seal based solely on the agreement or stipulation of the parties; rather, a party seeking to file a record under seal must file a motion for an order sealing the record, accompanied by a memorandum and declaration containing facts sufficient to justify the sealing...

Excerpt: ...n, by and through her Guardian Ad Litem, Theresa Nguyen's motion to reduce Medi- Cal Lien is CONTINUED to 3-15-18, at 1:30 p.m., in Department C- 33. First, plaintiff Nguyen is ordered to serve her motion to reduce Medi- Cal lien on the Office of Legal Services, Department of Health Care Services, P.O. Box 997413, Sacramento, CA 95899- 7413, as well as the Department of Health Care Services, P.O. Box 997425, Recovery Section, MS 4720, Sacramento,...