Excerpt: ... case shall be allowed to recover a sum equal to the aggregate amount of costs and expenses, “including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Code Civ. Proc., § 1794(d).) The plain wording of the statute requires the trial court to base the fee award on actual time expended on the case, as long ...

Excerpt: ...ency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader's ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a Demurrer tests only the sufficiency of the Complaint, a court will not consider facts that have not been allege...

Excerpt: ...ob, she accepted the arbitration agreement. In addition, she electronically signed the agreement. Full Agreement: In the moving papers, there was a clerical error, where the portions of the pages of the agreement were cut off. Upon notification of the defect, Defendants corrected it by filing a Notice of Errata on December 10, 2019. There is no showing that Plaintiff was prejudiced by the clerical error. The agreement had been sent to Plaintiff's...

Excerpt: ...Plaintiff's unit, as such defendants knew Plaintiff was suffering yet failed to relocate her, failed to timely and properly treat, failed to abate the bed bug infestation, in acting in this manner Defendant intended to cause or at the very least with reckless disregard of the high probability that plaintiff would suffer emotional distress.” (Paragraph 130, page 22, lines 18-23). These allegations satisfy the requirement that Plaintiff allege De...

Excerpt: ...ender if that person authorized the order or is otherwise bound by it under the law of agency. (b) If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if (i) the security procedure is a commercially...

Excerpt: ...74, 1384, the court held that “the American Motorcycle indemnity action and the plaintiff's tort action are not on the same cause of action. The identity of two causes of action is determined by a comparison of the facts alleged which show the nature of the invasion of plaintiff's primary right.” These were different causes of action. “[T]he analysis focuses on identifying a primary right of the plaintiff and the defendant's breach of a cor...

Excerpt: ...lid, doe not state sufficient facts to constitute a cause of action, and is uncertain, vague, and ambiguous. MCWE's notice and demurrer state that MCWE demurs pursuant to 430.10, but that section applies only to complaints and cross-complaints. Because Newport Harbor Offices & Marina, LLC, (“NHOM”) addresses the merits of a demurrer as if brought pursuant to the correct code section 430.20, NHOM waives any objections on proper notice. There a...

Excerpt: ...nal distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) “A defendant's conduct is said to be ‘outrageous' when it is so “ ‘ “extreme as to exceed all bounds of that usually tolerated in a civilized community.” ' ” [Citation.]” (Ibid.) And the defendant...

Excerpt: ...aims in connection with the foreclosure. Where a borrower moves to set aside a trustee's sale on the ground the sale is voidable due to irregularities in the sale notice or procedure, the borrower must offer to tender the full amount owed on the debt. (Kalnoki v. First Am. Trustee Servicing Solutions, LLC (2017) 5 Cal.App.5th 23, 47 (citing Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112).) Plaintiff alleges Defendants foreclosed when they ...

Excerpt: ...ling on the Motion for Joinder and, as necessary, the Motion to Stay. Motion for Joinder. The unopposed Motion by Defendants/Cross-Complainants/Cross-Defendants Genie Industries, Inc., and Terex Corporation (“Joining Parties”) to Join in the Motion for Stay of Proceedings filed by Defendants/Cross-Complainants/Cross-Defendants Golden Rain Foundation of Laguna Woods, Third Laguna Hills Mutual, United Laguna Woods Mutual is GRANTED. The motion ...

Excerpt: ...nd make inconsistent allegations.” Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402. A complaint may plead inconsistent causes of action. . . . [U]nless the alternate pleadings contain antagonistic statements, the statement of facts sufficient to constitute a cause of action in one count is not a bar to the maintenance of a separately stated count in the same pleading based upon inconsistent allegations.” Steiner v. Rowley (...

Excerpt: ... of the cause of action at issue has been proved, and as a result, there is no defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) The elements of a cause of action for breach of contract are: (i) the existence of a contract; (ii) the plaintiff's performance or excuse for nonperformance; (iii) the defendant's breach; and (iv) damage to the plaintiff resulting from the breach. (Oasis West Realty, LLC v....

Excerpt: ...��Attorney Rader”). Attorney Rader is attorney of record for Plaintiff Abernethy. Attorney Rader is not attorney of record for the Law Offices of Hagendorf & Abernethy (the “Partnership”), Rader has been filing papers on behalf of the Partnership since 08/2019. Standing. A complaining party who files a Motion to Disqualify is required to have standing.” (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352.) Where a Motion for Disqualification ...

Excerpt: ... prevailing party must be (1) incurred by that party, whether or not paid; (2) ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation'; and (3) reasonable in amount.” Charton v. Harkey (2016) 247 Cal.App.4th 730, 739. Item No. 1—Filing and Motion Fees: $6,706.08. Plaintiff agreed to reduce the costs by $124.00. Code Civ. Proc., § 1033.5 (a) (1) provides that Filing, motion, and...

Excerpt: ...uash. Plaintiff also argues that Defendant did not meet and confer prior to filing this motion. While a motion to enforce a subpoena over a consumer's objections requires prior meet and confer efforts, it does not appear that a consumer's motion to quash does. (Code Civ. Proc. § 1985.3(g).) The subpoena seeks the following two categories of documents from Citibank and Financial Partners Credit Union: 1) Any and all documents, inclusive of cashed...

Excerpt: ...Cal.3d 311, 318.) A Demurrer may be based on, among other grounds, failure to state sufficient facts to constitute a cause of action, uncertainty, and misjoinder. (Code Civ. Proc., § 430.10, subds. (d), (e), (f).) The examination of the complaint is “guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it doe...

Excerpt: ...en a reasonable time to correct the deficiency, and [4] resulting damages.” Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297. Although Plaintiff alleged that she complained about the bed bugs, she failed to allege that Defendant was given a reasonable time to correct the problem. The pleading should be amended to complete these allegations. Sixth Cause of Action for Battery. “The essential elements of a cause of action ...

Excerpt: ...tes “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” Standing: Plaintiffs filed objection to ...

Excerpt: ...all “set[] forth plainly and concisely all material facts that the moving party contends are undisputed.” CRC 3.1350, subdivision (d)(3) requires that a Separate Statement of Undisputed Material Facts be in a two-column format that states each undisputed material fact in the first column, followed by the evidence that establishes those undisputed facts in that same column. Citation to that supporting evidence must include reference to the exh...

Excerpt: ... waived its right to compel arbitration. Significant delay alone does not constitute waiver and waiver will only be found when the moving party has taken substantial advantage of the judicial process or engaged in bad faith. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4 th 348, 3760377; Khalatian v. Prime Time Shuttle , Inc. (2015) 237 Cal.App.4 th 651. Although there has been some delay in bringing this motion, there is no evid...

Excerpt: ...moving papers purport to be on behalf of PDSRET and Artz as trustee of PDSRET, the Court will consider the papers to be filed and arguments made by Artz as Trustee of PDSRET. This Court exercises its discretion to consider this motion, though filed more than 60 days of service of the operative complaint (the “FAC”). (Code Civ. Proc., § 425.16, subd. (f).) Code of Civil Procedure Section 425.16 provides in relevant part: “A cause of action ...

Excerpt: ...d gives statement to an insurance carrier “'for the sole purpose of defending' against claims, are protected by the attorney-client privilege. The fact that litigation was only a threat on the horizon and that attorneys had not yet been selected to try to avert or meet that threat does not convert the purpose of the transmission. To hold otherwise might merely encourage insurance companies to bring in their attorneys at early stages in the clai...

Excerpt: ...0. The responses do not set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (Code Civ. Proc., § 2031.230.) As to the remaining RFPs, Defendants contend that Plaintiff's motion to compel further responses to her RFPs should be denied because (1) Plaintiff has already received these documents from Dr. Mitchell; (2) any documen...

Excerpt: ... is unnecessary for the court to examine the defendant's opposing evidence, and the motion must be denied. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468.) Once the plaintiff has met its initial burden, the burden shifts to the defendant to show a triable issue as to one or more material facts or a defense thereto. The defendant may not rely on the mere allegations or denials of its pleadings, but must set forth the specific ...

Excerpt: ...y valid claim entitling plaintiff to relief, even if plaintiff's cause of action is improperly titled, or an improper remedy is stated. (See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38, and Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547. Hence, under a general demurrer, plaintiff's complaint must fail to state a valid cause of action for the demurrer to be sustained. A Demurrer for uncertainty, ho...

Excerpt: ...des parties with expansive discover y contrary court order, a civil litigant's right to discovery Court (2017) 3 Cal.5th 531, 551.) “[A]ny party may o b matter, not privileged, that is relevant to the subject m action ... if the matter either is itself admissible in evid calculated to lead to the discovery of admissible evide n 2017.010; see Davies v. Superior Court (1984) 36 Cal. limited to admissible evidence”].) The statutory phras e than ...

Excerpt: ...e substanda r subdivision. (1) In appointing a receiver, the court sha l been afforded a reasonable opportunity to correct the c violation. [¶] ... [¶] ... “(11) The prevailing party in an action pursuant to this reasonable attorney's fees and court costs as may be f i Another provision that applies is Health and Safety Co d that, once the trial court “finds that a building is in a c o endangers the health and safety of residents,” it sha...

Excerpt: ...(2017) 12 Cal.App.5th 1043, 1051. Fair Trial: “To overcome the validity of an administrative decision, a petitioner must show the agency acted without or in excess of jurisdiction, did not afford a fair trial, or prejudicially abused its discretion.” Pinheiro v. Civil Service Com. for County of Fresno (2016) 245 Cal.App.4th 1458, 1463. In order to resolve Petitioner's contention that the administrative hearing did not afford due process, the ...

Excerpt: ...e, according to the exhibits attached to the Petition of (1) a list of the names and addresses of each m (2) the name and address of Adelanto's manag e (3) Adelanto's federal, state, and local income t a fiscal years, (4) Adelanto's operating agreement, (5) Adelanto's articles of incorporation, (6) Adelanto's financial statements, and (7) Adelanto's books and records as they relate current and past four fiscal years. (Amended Petition, Ex. 1 at p...

Excerpt: ... if this Demurrer was untimely, an unti m by the court in its discretion so long as its action does n the parties. Jackson v. Doe(2011) 192 Cal.App.4th 74 2 established how this Demurrer affects her substantial r any steps to obtain a default judgment or demonstrate prejudice. Accordingly, the court can and does act within its broa d Defendant's Demurrer on the merits. Sixth Cause of Action for IIED. The elements of IIED a outrageous, (2) Defenda...

Excerpt: ...e” nature of the 2 nd cause of actio n the alternative and has sufficiently alleged the existen c support a claim for breach of its implied covenant of g o With respect to the 3 rd cause of action for unfair busin e address the “fraudulent” prong of Business & Professio n address that prong does not allow the Court to rule th a Motion to Strike. The Motion by Defendants the Law Jacob Emrani, Brian McKibbin, Jonathan Ritter Motion t (15) day...

Excerpt: ... who was not physically able to practice law at t Decl. ¶¶ 12-13.) The Court finds Defendant will suffer no undue prejudi c The Dismissal of Defendant Michael Brower entered 03 / Civil Procedure Code Section 473(a)(1) provides that “ [ discretion, after notice to the adverse party, allow, up o amendment to any pleading . . . .” The court's discreti liberally to permit amendment of the pleadings. (How a 184 Cal.App.4th 1422, 1428.) The polic...

Excerpt: ... Indio (2015) 236 Cal.App.4th 1175, 1196.) Based upon an independent review of the evidence, the Court finds that substantial evidence supports the City of San Juan Capistrano (the “City”) Code Enforcement Department's six-page amended administrative enforcement order affirming the denial of Petitioners' business license application. (Mun. Code, §§ 3-1.202(e), 9-3.305.) The City afforded Petitioners a fair hearing, acted within its jurisdic...

Excerpt: ... Wisconsin, without regard Each of the parties hereby submits to the exclusive jur i of Waukesha County, Wisconsin with respect to any di s this Agreement.” (Ravencroft Decl. ¶ 3, Ex. A, para. 6. Defendants contend that the mandatory forum selectio action because Plaintiff's claims emanate from the APA SWO's right to hire identified employees and independ e is a purchased asset. (Ravencroft Decl., ¶ 3, Ex. A, pa r APA also states that “Sell...

Excerpt: ...ry duty, breach of contra c (intentional or unintentional) and/or declaratory or oth e or concerning the performance of this agreement sha arbitration . . . .” (Exhibit A, Page 3, emphasis added). The arbitration clause at issue is very broad [when it] e claim arising out of or relating to any provision of this [ breach thereof....” Larkin v. Williams, Woolley, Cogsw e Cal.App.4th 227, 230. The causes of action of the Complaint for (1) Deceit...

Excerpt: ...��. and must view such evidence….in the light most favorable to the opposing party.” (Id. at 843, 844-45; Code Civ. Proc. § 437c(c).) “Evidence of a store owner's failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant's negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner. A store owner must inspect th...

Excerpt: ... accomplish this, the settlement must b the settling tortfeasor's share of liability for the plaintif f Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499. ) in Tech-Bilt v. Woodward-Clyde & Assoc.set forth the f a faith. (Id., at pp. 499-500.) The court need not consi d when the good faith nature of a settlement is not disp u is required is a motion setting forth the grounds of goo declaration setting forth a brief background of the cas e Ct. (19...

Excerpt: ...anted. (Code Civ. Proc. §§ 526, 527; Pro–Family Advocates v. Gomez (1996) 46 Cal.App.4th 1674, 1680– 1681.) These issues are to be considered on a sliding scale. “[T]he more likely it is that plaintiffs will ultimately prevail, the less severe must be the harm they allege will occur if the injunction does not issue.” (Right Site Coalition v. Los Angeles Unified Sch. Dist. (2008) 160 Cal. App. 4 th 336, 342.) Defendants have not establis...

Excerpt: ...gal or equ property' become the property of the bankruptcy estate and will be distributed to v. Jacoway (2005) 544 U.S. 320, 325; see also Cloud v. Northrop Grumman Cor p 1001.) This means “after a person files for bankruptcy protection, any causes of that person becomes the property of the bankrupt estate.” (Cloud, supra, at p. 1 “[A] Chapter 7 debtor may not prosecute on his or her own a cause of action bel o unless the claim has been aba...

Excerpt: ...l.App.4th 1 the court determined that Plaintiffs Mobile Authentication Corporation (“MAC”) an (“Palisades”) lacked capacity to maintain the instant action and sustained the De m Inc. and Miguel Medina. (See 4/12/19 Minute Order.) On May 13, 2019, Plaintiffs filed their Fourth Amended Complaint (“4AC”). Despit the 4AC, there is no evidence demonstrating that Plaintiffs have complied with C a 2203 by paying fees, penalties and taxes, ma...

Excerpt: ...eeds, the vesting date was 11/13/1 4 Plaintiff knew that the face value of the policy of $4 mi l Complaint). This amount was fixed. It was only reduce d the subsequent settlements. Attorney Fees and Costs: In an effort to mitigate da m $1,520,874.27 in legal fees and costs in the Transame r BVI Action. In the SAC filed on 5/30/17, Plaintiff requested “In e and costs arising out of the New Jersey Action [and] In and costs arising out of the BVI ...

Excerpt: ... by the party against whom the costs are allowed.” The ordering of a copy of the transcript of Avrit's deposition was reasonable and n required to photocopy the original deposition for his expert. The statute specially videotaping witness's depositions. Item No. 4e: SDT Medical Records: Plaintiff ordered copies of the records that practice for Plaintiff to obtain the records that Defendant secured. Item No. 5: Costs of Service of Process: Altho...

Excerpt: ...a Ion and Ra Global Resources, fact are substantially different in that the cases involved different parties and a d i 11 months apart. Also, there was substantial delay in bringing this motion. For a denied. Case Management / Trial Setting Conference and OSC Re Dismissal of Un There being no submission re good cause on the lack of service on Defendant Mi h cause otherwise available, Defendant Mihaela Ion is dismissed without prejudice. A Jury Tr...

Excerpt: ...improper double collection. Would the second payment still tax? In order to show that there was not an initial payment of sales tax, Balboa would judgment. If there was no initial payment, then there would be no double payme n If there was an initial payment of sales tax, some equitable arrangement should o for the payment or CDK Global should return the payment. WAC 458-20-211 (g) “retail sale” excludes any purchases for the purpose of resal...

Excerpt: ...presentation, (2) knowledge o 4) justifiable reliance, and (5) damages. (Lazar v. Superior Court (1996) 12 Cal. 4 Plaintiff alleges Defendant “Defendants made false statements and promises in t h oversight of the modification process and good faith in providing a modification e v 27.) Defendant argues that the economic loss rule bars this misrepresentation cl a The California Supreme Court has concluded that a Plaintiff may not recover tort d a...

Excerpt: ... any motions seeking relief or affirmatively requesti n filed a joinder in Dr. Wong's demurrer and motion to s t Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 66 0 Additionally, the joinder is moot in light of the ruling o n to Strike and Plaintiffs' filing of a First Amended Compl a Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 11 complaint moots a motion directed to a prior complain t Defendant Matthew P. Hannon, M.D. to give notice. ...

Excerpt: ...the specificity requirem e concerning fraud are vague. When were the statement s made to both Plaintiffs? What specifically was stated? I ignored the requirement of particularity. Plaintiffs had an opportunity to amend with particularit y it is an abuse of discretion to sustain a demurrer witho u reasonable possibility that the defect can be cured by a burden is on the plaintiff to demonstrate that the trial c Plaintiff must show in what manner h...

Excerpt: ... the Plaintiff need not oppose the motion and the motio Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) I burden, the burden shifts to the Plaintiff to produce evi existence of a triable issue of material fact. (Code Civ. (p)(2); Aguilar, 25 Cal.4th at pp. 850-51.) The elements of a negligence claim and a premises lia b duty of care, breach of that duty, and proximate cause v. Christian (1968) 69 Cal.2d 108.) A property owner i reasonable ca...

Excerpt: ...t paid in settlement; (3) the allocation of settle m (4) the recognition that a settlor should pay less in set t found liable after a trial; (5) the financial conditions an settling Defendants; (6) the existence of collusion, fra u injure the interests of nonsettling Defendants. (Tech-B i most important factor is the settling party's proportion a Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1350 . the settlor's potential liability to the Plaint...

Excerpt: ...oofs service documents.”Inversion e Personal Jurisdiction: “Whe by a preponderance of the evi d affidavits and authenticated d o 1233. Purposeful Availment: “Th e entity under state substantive separate person or entity to e n “Instead of focusing on the qu protections of California law t o relating to its products.” As Y o “[T]he effects test requires a s conduct would cause harm in t Novus contracted with Holy S m companies. There i...

Excerpt: ... o r 500.) The most important factor is the settling party's proportionat e consider not only the settlor's potential liability to the Plaintiff, but a Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4 t The burden of proof is on the party opposing the good faith determi good faith determination. Also relevant is the likelihood that the set amount includes consideration of the possibility that the Plaintiff wil recover at trial. (...

Excerpt: ...oc., § 473(d) [emphasis added].) A Judgment may be void a for a number of reasons, including lack of personal jurisdiction over the Defendant. When a Defendant challenges the Court's personal jurisdiction on the ground of improper service of process the burden is on Plaintiff to prove the facts requisite to an effective service. (See Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Code of Civil Procedure section 415.20(b) sets forth the ...

Excerpt: ...ith attempt at personal service, an individual Defendant may be substitute serve by: (1) leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box; (2) in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing addr...

Excerpt: ...showing is one that is sufficient to support the position of the party in question.” (Id. at 851.) Motions for summary judgment filed by employers in employment discrimination cases are subject to a unique set of rules adapted from the burden-shifting test established by the United States Supreme Court in McDonnell v. Green (1973) 411 U.S. 792. The employer, as the moving party, has the initial burden to present admissible evidence showing eith...

Excerpt: ...iance, and (5) damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645;Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal. App. 4 th 153, 157 (finding, for allegations against corporation, Plaintiff must allege authority to speak for corporation).) The heightened pleading standard requires “‘pleading facts [that] “show how, when, where, to whom, and by what means the representations were tendered.” ' [Citation.]” (Lazar,...

Excerpt: ...action is overruled. The elements of a cause of action for fraud are: (i) misrepresentation; (ii) Defendant's knowledge of the statement's falsity; (iii) Defendant's intent to defraud; (iv) Plaintiff's justifiable reliance; and (v) resulting damage. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231; Witkin Summary of Cal Law, Torts § 676.) Fraud must be pleaded with specificity. (Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d ...

Excerpt: ...California Civil Code section. 3294(a). Section 3294(c)(1) defines “malice” as “conduct which is intended by the Defendant to cause injury to the Plaintiff or despicable conduct which is carried on by the Defendant with a willful and conscious disregard of the rights or safety of others.” In 1987, the Legislature amended the statute to add a criterion for “unintentional malice” which requires a Plaintiff to prove that the conscious di...

Excerpt: ...�all of the powers of a natural person in carrying out its business activities”]; Color–Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603–1605.) But a corporation that has had its powers suspended “lacks legal capacity to prosecute or defend a civil action during its suspension.” (Sade Shoe Co. v. Oschin & Snyder (1990) 217 Cal.App.3d 1509, 1512.) Here, the parties agree that Defendant Tucker Family Restaurant, LLC has been suspended...

Excerpt: ...-2017-00951068. The Motion to Vacate Set Aside Request for Entry of Default by Defendants Rebecca Adkinson and Sarosh Abdullah (Quadri) is GRANTED. Defendants Rebecca Adkinson and Sarosh Abdullah (Quadri) (“Defendants”) move to set aside the default entered on January 15, 2019 on the ground that the default is void (Code Civ. Proc., § 473(d).) Defendants argue that the entry of default is void for ineffective service of process. “ ‘[C]om...

Excerpt: ... punitive damages in a complaint lacking factual foundation. (See Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) Punitive Damages. The motion is denied as to paragraph 47 and the prayer for punitive damages. Punitive damages are available in actions “for breach of an obligation not arising from contract.” (See Civ. Code, § 3294(a).) To plead a claim to recover punitive damages, a Plaintiff must plead and show...

Excerpt: ...procedural aspects of the FAA, on the other hand, do not apply here. (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 840-41, citing Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 922; see also Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1351.) The agreements have no express provision for FAA procedural rules to apply and, as such, the CAA procedural rules apply. A party moving to comp...

Excerpt: ...mit for the completion of discovery (the 15th day before the date initially set for trial) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. (Code Civ. Proc., §§ 2034.610(b); 2024.020(a).) Under exceptional circumstances, the court may permit the motion to be made at a later time. (Code Civ. Proc., § 2034.610(b).) Pursuant to Section 2034.620, the court shall grant leave to augment or amend a...

Excerpt: ...here, also lacks capacity to sue in California. (CM Record Corp. v. MCA Records, Inc. (1985) 168 Cal.App.3d 965, 968-969.) The lack of capacity cannot be cured merely by assigning the claim to another entity. For example, if a suspended corporation assigns a judgment to a corporation in good standing, the assignee corporation cannot enforce the judgment. (Cal-Western Business Services, Inc. v. Corning Capital Group (2013) 221 Cal.App.4th 304, 313...

Excerpt: ...y move for an order compelling a further response to requests for admission if that party deems that either or both of the following apply: an answer to a particular request is evasive or incomplete; and/or an objection to a particular request is without merit or too general. If a timely motion to compel has been filed, the burden is on the responding party to justify any objection. (See Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) RFA Nos. ...

Excerpt: ...be accompanied by a separate statement. (Code Civ. Proc., §§ 2030.300, 2033.290, 2031.310, 2016.040; Cal. Rules of Court, rule 3.1345, subd. (a).) Defendant satisfied each of these requirements. Special Interrogatory No. 16 asks: Do you contend that you have in your possession journals in which you write down descriptions of past events and occurrences so as to assist in guiding your memory recall ability? Plaintiff responded: Objection: Violat...

Excerpt: ...he identification of potential witnesses. “'The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery.'. . . Indeed, our discovery system is founded on the understanding that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further investigations. . . .” Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1249–1250. P...

Excerpt: ...Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) Expert testimony is also required to demonstrate causation to a reasonable medical probability. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 (Jones); Chakalis, supra, 205 Cal.App.4th at p. 1572.) Defendant met its initial burden on this motion by demonstrating the lack of breach or causation through the declaration of Daniel ...

Excerpt: ...ess. (Code Civ. Proc., § 20 2 Gilbert (2011) 196 Cal.App.4th 1495, 1516.) Sanctions, however, are not impos e v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992; Caryl Richards, Inc. v. S Cal.App.2d 300, 303.) It is only when a party persists in disobeying the Court's O of dismissing the action or entering Default Judgment are justified. (See Deyo v. 771.) Here, the Court's 11/16/2018 order required Defendants/ Cross-Complainants M a provid...

Excerpt: ...ion, or fraud.Allegations that Defendant was a w rented premises that could cause injury to the tenants repair the defect were untimely, inadequate, ineffectiv e are not sufficient. They do not support the conclusion t injure Plaintiff or acted in reckless disregard for her sa f Case Management Conference The Court sets this matter for an estimated 7 day jury 9:00 a.m. and a Mandatory Settlement Conference for both in Department C24. Any party re...

Excerpt: ....3d 593, 604.) Defendant's Request for Judicial Notice is denied as to all but Exhibits 1 and 3, a s of any exhibits. The special Demurrer on grounds that Plaintiff lacks legal capacity to sue is susta i amend. (Code Civ. Proc., § 430.10, subd. (b).) Here, the First Amended Compl a has been damaged and specifically, if or how Plaintiff is entitled to any funds abs c First Amended Complaint alleges Plaintiff and Hutchison are sole beneficiaries t...

Excerpt: ... more favorable than the statutory o more favorable than the statutory offer, Plaintiff seeks reporter fees to the verdict. On 4/14/18 and 4/17/18, the parties exchanged e-mai split the court reporter fees at trial. This agreement oc c was made. In addition, Plaintiff made the payment of h the completion of the trial. Therefore, the payment of c costs. “It is well established that where, as here, the section Plaintiff's preoffer costs are inclu...

Excerpt: ...ances the equities: (1) whether the moving party is likely to suffer greater injury from a denial of the injunction than the responding party is likely to suffer from its grant and (2) whether there a reasonable probability that the moving party will prevail on the merits. (Teamster Local 856 v. Priceless, LLC (2003) 112 Cal. App. 4 th 1500, 1509.) “A Preliminary Injunction is proper only if there is a substantial basis to suppose that the Defe...

Excerpt: ...ud claim by alleging that Plaintiff mailed his application to the address generated on Defendant's website and that Defendant returned the application, claiming it was mailed to the wrong address. (FAC, ¶ 17.) Plaintiff also claims that Defendant failed to properly ensure that his application was complete before it forwarded it to the British Consulate. (FAC, ¶ 20.) Nevertheless, Plaintiff still has not pled the elements of a fraud cause of act...

Excerpt: ...Defendant's request for judicial notice is granted. First Cause of Action for Breach of Oral Contract. Plaintiffs fail to state sufficient facts to constitute a cause of action for breach of oral contract. The alleged oral contract falls within the statute of frauds. (Civ. Code, § 1624(a)(3) [an agreement for the sale of real property or an interest in real property comes within the statute of frauds]; see also Secrest v. Security Natn'l Loan Tr...

Excerpt: ...this action only on the issue of damages. The court finds that Plaintiff's noneconomic damages were $20,000. By applying the amount that Plaintiff was comparatively at fault for 40%, the net award for general damages was $12,000.00. The award of “zero” damages is inadequate as a matter of law. Plaintiff injured his neck and right shoulder. He received multiple trigger point injections for his neck. In March 2015, he underwent a right rotator ...

Excerpt: ... Obj. no. 5 to ¶ 11 (page/line 5:14-19) is sustained on the grounds of legal conclusion (see Towns v. Davidson, supra, at 472-473); and Obj. no. 7 to ¶ 13 (page/line 5:25- 6:10) is sustained only as to the statements at page/line 5:25-6:3 on the grounds of legal conclusion (see Towns v. Davdison, supra, at 472- 473). The remainder of the evidentiary objections to the Rabinoff declaration are overruled. Defendant H2O's evidentiary Obj. no. 2 to ...

Excerpt: ...ce to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case), and (2) specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). (Glenfed Develop. Corp. v. Super. Ct. (1997) 53 Cal.App.4th 1113, 1117.) Arguments made in the moving papers are insufficient to satisfy this requirement; good cause must be shown by ...

Excerpt: ...orth a brief background of the case is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.) Defendant Wesco Insurance Company, Inc. has satisfied its minimal burden to set forth the grounds of good faith and a brief background of the case. Together, its moving papers and supporting declaration adequately set forth the nature of the case and all pertinent facts, the settling parties' relative litigation positions...

Excerpt: ...(10) days of this ruling. Defendant's Request for Judicial Notice is denied. Defendant requests for the Court to take judicial notice of documents previously filed in this case. It is unnecessary to ask the Court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) �...

Excerpt: ...o evidence to justify its objection based on undue burden or oppression. If Defendant GM LLC possesses any responsive, non-privileged documents, Defendant must produce them. Requests for Production Nos. 30-33 seek documents related to similar complaints and repairs relating to, as well as repurchases of, the 2015 Chevrolet Cruze. This is reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Defenda...

Excerpt: ...010) 191 Cal.App.4th 53, 63.) The motion, however, is not intended to be used as a “procedural ‘line item veto' for the civil defendant.” (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682-83.) To plead a claim to recover punitive damages, a Plaintiff must allege specified facts showing malice, oppression, or fraud. (Civ. Code, § 3294(a).) While punitive damages can be available in a negligence action, causing an accident while un...

Excerpt: ...en shifts the Plaintiff establish, by means of competent and admissible evidence, that a triable issue of material fact still remains. (Code Civ. Proc., § 437c, subd. (p)(2); Id. at 850–851.) In her First Amended Complaint, Plaintiff alleges that Defendant provided unsafe chairs at Haskett Public Library. Plaintiff also alleges that Defendant failed to keep the premises clean and safe by providing unsafe seating equipment. Prior to filing a cl...

Excerpt: ...lvement in the day to day operation, management or business of AG Seal Beach, LLC. The Court, for good cause shown, may make any order that justice requires to protect any party “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) A Protective Order prohibiting the deposition of a corporate officer at the apex of the corporate hierarchy may be granted absent a reasonable i...

Excerpt: ...elevant, false, improper, or not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. Defendant's Motion to Strike paragraph 46 also is denied. To properly allege entitlement to punitive damages, there must be circumstances of oppression, fraud or malice, and facts must be alleged in the pleading to support such a claim. (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.) Plaintiffs' First Amended...

Excerpt: ...The act of willfully becoming intoxicated and operating a motor vehicle can reasonably be held to reflect a conscious disregard for the safety of others. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895-96.) However, Plaintiff must show that Defendant's conduct “was such as to amount to a conscious disregard of the safety of and probable injury to other persons.” (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 87.) Plaintiff here pleads that Defend...

Excerpt: ...de of the landlord's property managers. . . . Because section 789.3 does not apply to persons other than landlords, we can see no basis for holding the managers liable.” Otanez v. Blue Skies Mobile Home Park (1991) 1 Cal.App.4th 1521, 1526. Since the statute only applies to the landlord, the Demurrer should be sustained with leave to amend. Second Cause of Action for Intentional infliction of Emotional Distress: “In order to allege Intentiona...

Excerpt: .... To state a cause of action for legal malpractice, Plaintiff must allege: (i) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (ii) a breach of that duty; (iii) a proximate causal connection between the breach and the resulting injury; and (iv) actual loss or damage resulting from the attorney's negligence. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 179.) A...

Excerpt: ...t concedes that the Motions are now moot as to every request discussed in the Motions except those Requests for Production (“RFP”) relating to the text messages between Plaintiff and his wife. Specifically, Defendant argues that RFP Nos. 9, 16-19, and 36 are still in dispute and, therefore, each will be discussed below. RFP No. 9: All WRITINGS in the form of the written communications exchanged between YOU and Reno Carothers in the 30 days pr...

Excerpt: ...th 15 days leave to amend. Code of Civil Procedure Section 1060 provides that: “Any person interested under . . . a contract . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross- complaint . . . for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the . . . co...

Excerpt: ...claration in compliance with Code of Civil Procedure Section 435.5. Pursuant to Code of Civil Procedure Section 436 the court may strike out “any irrelevant, false, or improper matter inserted in any pleading.” The motion, however, is not intended to be used as a “procedural ‘line item veto' for the civil defendant.” (PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682-83.) Punitive damages are available in actions “for breach ...

Excerpt: ...s a change in the obligations of a party by a subsequent mutual agreement of the parties. . . . A contract in writing may be modified by a contract in writing. (Civ. Code, § 1698, subd. (a).)” West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 798. UMF 14: “On April 1, 2016, Adam Reifman, Director of Guest Experience at RMC, confirmed in writing that ‘Eric . . . said he is more than happy to extend the deadline out so you can ma...

Excerpt: ...a notice designating record on appeal. Appellants sought to include in the reporter's transcripts two oral proceedings that were held before JAMS, rather than the Superior Court. On November 13, 2018, the clerk mailed out a “Notice of Inability to Provide Reporter's Transcript” (“Notice”) as to these two proceedings because the proceedings were not proceedings in the trial court and thus do not fall within the provisions of rule 8.130. (S...

Excerpt: ... prevailed on this claim, as Plaintiff's Summary Judgment motion was granted on August 13, 2018. Plaintiff is therefore entitled to its attorney fees. Plaintiff is awarded $17,334.50, consisting of all $16,787 requested by Plaintiff in addition to 1.5 hours for travel and appearance for hearing on this motion at $325 per hour and the $60 filing fee. Plaintiff to give notice. ...

Excerpt: ...otion to Strike is MOOT. Defendants' Request for Judicial Notice is Granted. (Evid. Code § 452 (d), (h).) A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4 th 968, 994....

Excerpt: ...189 Cal.App.3d 91, 94.) The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff's performance or excuse for nonperformance; (iii) Defendant's breach; and (iv) damage to Plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman(2011) 51 Cal.4th 811.) Here, the Complaint does not allege facts supporting the existence of a contract between Plaintiff O'Keefe and Defendant Brower. In fact, th...

Excerpt: ... show their burden that there are any triable issues of material fact. At Common Law, Plaintiffs Did Not Have Right To View: “[U]nder California law, a landowner has no right to an unobstructed view over adjoining property . . . . ‘As a general rule, a landowner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right. [Citations.] Such a right may be created by private parties through the gran...

Excerpt: ... question of law. (Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 431.) “A valid . . . contract must be enforced according to its terms.” (Kalai v. Gray(2003) 109 Cal.App.4th 768, 777.) “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Civ. Code § 1638.) “The whole of a contract is to be taken together, so as to give effect to every part, if reason...

Excerpt: ...gment, the prevailing party shall be entitled to recover all attorney fees, and all other fees and all costs incurred in such proceeding or action.” In this case, Plaintiffs' claims are based on allegations that during the couple's marriage, Defendant Stephen had wrongfully converted Plaintiff Wendy's separate property into community property. Plaintiff attacked the distribution of assets upon dissolution, and by extension, the Judgment of Diss...

Excerpt: ...) 43 Cal.3d 833, 841-842; Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014, 1017.) Plaintiff's Complaint alleges that while a resident of Defendants' facility, Decedent, “an eighty-five-year-old Oxygen-Dependent woman with a colostomy bag, suffered preventable hypoxemia and hypotension that was left untreated, unaddressed, and allowed to worsen by Defendants” during Decedent's approximately eleven days' residency in the facility. (Comp...

Excerpt: ...Davidson (2007) 147 Cal.App.4 th 461, 472-473); Obj. no. 5 to ¶11 (page/line 5:14-19) is sustained on the grounds of legal conclusion (see Towns v. Davidson, supra, at 472-473); and Obj. no. 7 to ¶13 (page/line 5:25-6:10) is sustained only as to the statements at page/line 5:25-6:3 on the grounds of legal conclusion (see Towns v. Davidson, supra, at 472- 473). The remainder of the evidentiary objections are overruled. Defendant H2O's evidentiar...