Excerpt: ...ng the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” There was substantial evidence to support the verdict, including, but not limited to, Plaintiff's significant knee injury and the resulting blood clot which lead not only to a life-threatening pulmonary embolism but a permanent condition identified as post-...

Excerpt: ...on of the conspiracy, (2) a wrongful act done in the furtherance of the conspiracy, and (3) the resulting damage to the plaintiff. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 510-11.) Plaintiff's allegations fail to establish any underlying tort committed by Defendants. Accordingly, the demurrer is sustained as to this cause of action. Second Cause of Action for Fraud. The elements of a claim for fraud are: (a) a m...

Excerpt: ...y be exercised to permit the amendment of pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If the motion to amend is timely made, and there is no showing of prejudice, then it is error to deprive a party of a meritorious cause of action or a meritorious defense. (See Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Although KBSGI may have had some information about cross-defendants since 2015, KBSGI made its motion withi...

Excerpt: ...is the Trustee's Deed Upon Sale, which was recorded on 5/10/18. In the foreclosure sale, The Leasure Trust #21091, GR Development Inc., as Trustee was purchaser the property. “The doctrine of the ‘bona fide purchaser' can be generally described as follows: The purchaser or encumbrancer who pays valuable consideration for his interest in real property in good faith and who records his interest, receives his interest free and clear of all prior...

Excerpt: ... by some form of contract, express or implied, formal or informal.'” Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1732. Plaintiffs fail to allege an attorney-client relationship. Second Cause of Action for Breach of Fiduciary Duty against Clemmer: “The creation of a fiduciary obligation or duty must, at a minimum, arise from facts demonstrating the formation of a confidential relationship. None are present here. ‘A fid...

Excerpt: ...formed a medical procedure without the plaintiff's consent OR the plaintiff consented to one medical procedure, but the defendant performed a substantially different medical procedure; 2) The plaintiff was harmed; and 3) The defendant's conduct was a substantial factor in causing plaintiff's harm. Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1269. Here, the Complaint alleges that the Defendant, Dr. Moniak,...

Excerpt: ... herself, and one signed by Plaintiff's counsel. Plaintiff's declaration, however, was signed outside of California. In fact, Plaintiff submitted two declarations. On 6/18/2018, Plaintiff filed a declaration, in which Plaintiff stated: “I declare under penalty of perjury that the foregoing is true and correct. This declaration was executed on June 18, 2018 in Seattle, WA.” On 6/29/2018, Plaintiff filed another declaration, in which Plaintiff ...

Excerpt: ...ued the subpoena should be limited to those areas. Defendants adequately addressed this concern by causing the subpoena to be withdrawn and issuing an amended subpoena limited to the body parts for which Plaintiff is claiming injury. Thus, the motion to quash is moot as to this issue. Second, Plaintiff requested that the subpoena be limited to 10 years prior to the subject accident. The subpoena originally did not contain any temporal limitation....

Excerpt: ...rth Causes of Action are duplicative. The cross-complaint failed to allege the required elements. There must be an actual existing economic relationship as opposed to mere speculation. Third Cause of Action for Breach of Contract: Cross-complainant failed to allege a term of the contract that Vogel breached. The contract was not set out verbatim or attached to the pleading. “'To state a cause of action for breach of contract, a party must plead...

Excerpt: ...ce; and (e) resulting damage.'” Engalla v.Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973–974. “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. . . . ‘Thus ‘the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.'. . . This particularity requirement necessitates pleading factswhich show how...

Excerpt: ...he defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Judgment of Dissolution between Plaintiff Wendy Sawyer and Defendant Stephen Sawyer includes the following release: Except as otherwise provided for in this Agreement, each party releases, holds harmless and indemnifies the other from any and all demands, attorney fees, costs, expenses, l...

Excerpt: ...e to a plaintiff who proves abuse of a “person residing in this state, 65 years of age or older.” (Id. at 404; Welf. & Inst. Code, § 15610.27.) The Act defines abuse as physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering or deprivation by a care custodian of goods or services necessary to avoid physical harm or mental suffering. (Id., Welf. &...

Excerpt: ...rt may, in furtherance of justice and on any terms as may be proper, allow a party to amend any pleading....' (Code Civ. Proc., § 473, subd. (a)(1).) However, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. . . . The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. . . .'” Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, ...

Excerpt: ...n in violation of Government Code section 12940(h), respectively. Defendants Cybertech Lighting, Inc., Imran Parekh, and Rizwan Parekh Plaintiff alleges that he was the employee of Defendants Delta Sportswear, Inc., Cybertech Lighting, Inc., Imran Parekh, and Rizwan Parekh. (FAC, ¶ 2.) The FAC asserts the first and second causes of action for wrongful termination against all Defendants. (See FAC, ¶¶ 9-12; 13-16.) Defendants' submitted evidence...

Excerpt: ...27, 933, fn. 15), no balancing is required here because Defendants base their motion solely on the contention that the parties' agreement contains a mandatory forum selection clause, and that contention has no merit. The parties here entered into a Demand Promissory Note and Loan and Security Agreement on or around 09/09/2013. (Kanamouie Decl. ¶ 3, Ex. A.) Section 21 of that agreement provides for mandatory forum selection of only Borrower-initi...

Excerpt: ...while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” Williams v. Superior Court (2017) 3 Cal.5th 531, 552 “[W]henever discovery of facially private information is sought, the party seeking discovery must demonstrate a ‘compelling state interest' or ‘compelling need.'” W...

Excerpt: ...ls, arbitral finality is a core component of the parties' agreement to submit to arbitration.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10.) Generally, courts cannot review arbitration awards for errors of fact or law, even when those errors appear on the face of the award or cause substantial injustice to the parties. (Id. at 6, 28.) The California Arbitration Act (Code Civ. Proc., § 1280 et seq.) provides limited grounds for judicial ...

Excerpt: ...ond, the Motion did not include a declaration detailing which records the subpoena was seeking or any attempt to meet and confer between Plaintiff and Defendants. Third, the motion did not include a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (See Cal. Rules of Ct., Rule 3.1345(a)(5).) An Amended Motion to Quash was subsequently filed on 5/...

Excerpt: ...ent (1%) of the full cash value of such property.... [¶] (b) The limitation provided for in subdivision (a) shall not apply to ad valorem taxes or special assessments to pay the interest and redemption charges on any indebtedness approved by the voters prior to the time this section becomes effective.” In Pacific Southwest Realty Co. v. County of Los Angeles(1991) 1 Cal.4th 155, the California Supreme Court described Proposition 13 and its rel...

Excerpt: ... percent (1%) of the full cash value of such property.... [¶] (b) The limitation provided for in subdivision (a) shall not apply to ad valorem taxes or special assessments to pay the interest and redemption charges on any indebtedness approved by the voters prior to the time this section becomes effective.” In Pacific Southwest Realty Co. v. County of Los Angeles(1991) 1 Cal.4th 155, the California Supreme Court described Proposition 13 and it...

Excerpt: ...layed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. . . . [C]onclusory allegations will not withstand demurrer.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) Once prope...

Excerpt: ...ting to accounts held by Igor Reverditto. Because Plaintiff fails to allege any cause of action against Defendant, Defendant cannot reasonably be compelled to respond to the pleading. Civ. Proc. Code § 430.10 (e) and (f). Accordingly, the Demurrer is sustained. Because this is the first challenge to the legal sufficiency of Plaintiff's Complaint, leave to amend will be granted. Defendant to give notice. ...

Excerpt: ...ruth of the facts alleged. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.) First Cause of Action (ADA...

Excerpt: ...n the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the sepa...

Excerpt: ...he indemnitor; and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible. (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135.) Here, the FACC fails to plead any facts to support any fault on the part of Cross-Defendant. Cross-Defendant's demurrer to the third cause of action for Declaratory Relief is overruled. The elements of a cause of action for dec...

Excerpt: ...within 60 days after the filing of the Notice of Intent. Green v. Laibco, LLC (2011) 192 Cal.App.4 th 441, 447. Objections to Evidence: Plaintiff objected to Defendant's Affidavit in Support of Motion for New Trial. Nos. 1 to 4: Overruled. No. 5: Sustained. Defendant failed to show that these exhibits were offered and/or admitted in evidence at trial. Exhibit 4: Important Memo to Office Staff (9/25/14) and Exhibit 5: E-mail between counsel (2/21/...

Excerpt: ...§§ 2025.420(h), 2030.090(b), 2031.060(b), and 2033.080(b).) “The burden is on the party seeking the protective order to show good cause” for the order sought. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life and Casualty Insurance Company (1967) 253 Cal.App.2d 807, 819.) To establish good cause, the moving party must provide “a factual exposition of a reasonable ground for the sought order.�...

Excerpt: .... A); (2) this case involves claims covered by that agreement (see Monson Decl. ¶ 6, Ex. A; Compl.); and (3) Plaintiff has refused to arbitrate (Shaffer Decl. ¶¶ 13-18). (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) Further, Defendant attaches the written agreement to arbitrate to the petition. (Cal. Rules of Court, Rule 3.1330.) Plaintiff fails to meet his burden to prove by a preponderance of eviden...

Excerpt: ...cial security number to guarantee a lease with Plaintiff. Code Civ. Proc. § 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” The law favors a trial on the merits, and doubts in applying Code Civ. Proc. § 473 are resolved in favor of the party seeking relief from default. Iott v. Franklin (1988) 206 Cal....

Excerpt: ...t of any award against him. Pursuant to CCP 2031.310 (h), the Court denies sanctions because it would be unjust under the circumstances. Defendant to give notice. ...

Excerpt: ...her that evidence was sufficient to prove the claims or defenses asserted by the opposing party and now embodied in the jury's verdict. (See Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) A motion for JNOV “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Dept. of Veteran Affairs (2001) 25 Cal.4th 62, 68.) C...

Excerpt: ... section 1987.1(a) provides that: “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an...

Excerpt: ... claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights…it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it, whichever is the greater.” “[T]he offset provided for in section 877 assures that a plaintiff will not be enriched unjustly by a double recovery, collecting p...

Excerpt: ...el is disfavored for public policy reasons and permitted only in very limited circumstances. (Spectra-Physics (1988) 198 Cal.App.3d 1487, 1494.) The court adopted the three-part test for determining the propriety of a deposition of opposing counsel. “The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information soug...

Excerpt: ...he alleged arbitration agreement on behalf of the resident where, as here, the arbitration agreement has been signed by such an agent. (Goldman v. SunBridge Healthcare, LLC (2013) 220 Cal.App.4th 1160, 1173; Young v. Horizon West, Inc. (2013) 220 Cal.App.4th 1122, 1130, fn. 6.) Defendants have not met this burden. “ ‘[A]gency cannot be created by the conduct of the agent alone; rather, conduct by the principal is essential to create the agenc...

Excerpt: ...equires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code Civ. Proc., § 2025.420(h). “The burden is on the party seeking the protective order to show good cause” for the order sought. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life and Casualty Insurance Company (1967) 253 Cal.Ap...

Excerpt: ...ings or other appropriate proceedings.'” Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. Cross-Defendant will have the opportunity to test the viability of the amended pleading on demurrer. Prejudice: “It is well established that ‘California courts ‘have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization...

Excerpt: ...ce, a demurrer on that ground is proper.'” Vaca v. Wachovia Mortg. Corp.(2011) 198 Cal.App.4th 737, 746. “'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.' Stueve B...

Excerpt: ...g any cause of action, it must be alleged as an element of the plaintiff's cause of action. (State of California v. Superior Court (2004) 32 Cal. 4th 1234, 1239-40.) Plaintiff's Complaint does not allege facts demonstrating compliance with the claims presentation requirements. (See Compl., section 9.) A public entity cannot be held liable for common law negligence. (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 977.)...

Excerpt: ... rather than restricting it to the technical niceties depending upon pleading and procedure.” (Greenspan v. Ladt, LLC. (2010) 185 Cal.App.4th 1413, 1445; see also First Western Bank and Trust Co. v. Bookasta (1968) 267 Cal. App. 2d 910, 915-16 [reversing order sustaining demurrer for purported failure to adequately allege alter ego].) Here, the FAC alleges that Garza is the CEO and President of Horizon and maintains a beneficial and financial i...

Excerpt: ...es that he paid for the performance bond at issue. The court disregards this new allegation as a sham pleading. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491; State ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412.) The remaining allegations do not support a claim for violation of Business and Professions Code Section 17200. The sole allegation of misconduct against defendant Sureties is that D...

Excerpt: ...ed. “While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer.” United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505. Condition Precedent: In order the statute of limitation to begin to run, the contract provided for certain conditions to have occurred first. Defendant Bradley was to...

Excerpt: ...ties to the dispute did not accept the terms offered for alternative dispute resolution. (3) Preliminary or temporary injunctive relief is necessary.” None of these alternatives occurred. Pursuant to Civ. Code § 5940 (a), the parties could enter into a written stipulation to extend the time to complete the ADR. This option is still open to the parties. Plaintiff HOA failed to satisfy one of three available alternatives in other to gain access ...

Excerpt: ...sed Stephen Sawyer harm. (ROA 647.) The provision at issue states: Except as otherwise provided for in this Agreement, each party releases, holds harmless and indemnifies the other from any and all demands, attorney fees, costs, expenses, liabilities, actions or causes of action of any kind or nature based on, arising out of, or in connection with any matter, fact or thing occurring or accruing before the date of the execution of this Agreement ....

Excerpt: ...irrelevant, false, or improper matter inserted in any pleading.” A motion to strike may be used to strike punitive damages allegations in a complaint lacking factual foundation. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) 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...

Excerpt: ...ses were due on 9/23/17. Plaintiff did not and has not served responses. (McConnell Decl.; ¶¶ 3, 5-5.) As a result, Plaintiff has “waive[d] any right to exercise the option to produce writings under Section 2030.230, as well any objections to the interrogatories and requests for production. Plaintiff shall provide responses, without objections, to Special Interrogatories, Set Two; Requests for Production of Documents, Set Two; Supplemental In...

Excerpt: ...r natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. Code Civ. Proc., §§ 2025.420(h), 2030.090(b), 2031.060(b), and 2033.080(b). “The burden is on the party seeking the protective order to show good cause” for the order sought. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255, citing Goodman v. Citizens Life and Casualty Insurance Company (1967) 253 Cal.App.2d ...

Excerpt: ...ter or claim being released hereunder, then the moving party shall pay all reasonable attorney's fees and costs of the other party to defense such action” (emphasis added). The court finds that the terms “endorse” and “action,” identified above in boldface, may be ambiguous as a matter of law. (Civ. Code, § 1638.) At least ten (10) court days before the continued hearing, Defendant Stephen D. Sawyer shall file a supplemental brief of n...

Excerpt: ...laintiffs did not meet their burden of showing why an enhancement is appropriate. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138. See also, Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 822. On its face, this case does not appear to be unusual in its complexity. Nor does it appear any enhancement is due for risk of loss or delay in payment as these factors have already been included in consideration of the ...

Excerpt: ...requests telephone calls and text messages, and shall produce the subject records to Plaintiff's counsel by April 18, 2018. Plaintiff did not demonstrate the required good cause showing for instant messages, social media postings, or other electronic or social media communications. The records are not to be shown or disclosed to anyone but the litigants and counsel (including agents and employees) and are to be used only for purposes of this liti...

Excerpt: ...rt the six causes of action alleged against demurring defendants. First cause of action, count one for veterinarian malpractice: “The gravamen of [a veterinary malpractice] action is that in providing veterinary care, the veterinarian failed to use such reasonable skill, diligence, and attention as might ordinarily have been expected of careful, skillful, and trustworthy persons in the profession. The courts have generally recognized that for t...

Excerpt: ...y pleads facts to support each element, including (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional 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, 1050-51; Compl. ¶¶ 20, 21, 34,...

Excerpt: ...s to support these elements. FAC, ¶¶ 5-6. Defendant contends Plaintiff failed to identify a specific sum and that the complaint only alleges an approximate amount. Defendant is correct that “actions for the conversion of money have not been permitted when the amount of money involved is not a definite sum.” PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 396. However, the amount of mon...

Excerpt: ...on of its meaning.' . . . While courts take judicial notice of public records, they do not take notice of the truth of matters stated therein. . . . ‘When judicial notice is taken of a document, ... the truthfulness and proper interpretation of the document are disputable.'” Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal.App.4th 1366, 1375. Lack of Standing: Defendants contend that the Company sustained no injury-in-fact, because the ...

Excerpt: ...onmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, [the court] believe[s] that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial. ” New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1431. In footnote 15, the New Albertson court referenced CACI Jury Instruction 204, w...

Excerpt: ...a Code of Civil Procedure section 473 “must be resolved in favor of the party seeking relief from default.” Id. In addition, plaintiff's counsel should have, as a matter of professional courtesy, given notice of the impending default to defendants' counsel. Id. at 701-702. Defendants are ordered to pay Plaintiff $1,000 within ten (10) days of this order. Code Civ. Proc., § 473(c). Defendants shall serve and file the proposed answer attached ...

Excerpt: ...s allegations, Plaintiff's motion to quash is GRANTED to the extent it the subpoena seeks production of Plaintiff's payroll records, and DENIED as to the remainder. Plaintiff's Motion for Protective Order is DENIED. The Complaint alleges that Plaintiff has suffered and continues to suffer financial losses. Her verified discovery responses, however, clarify that her “economic losses ceased accruing” when she began working for O'Reilly in Novem...

Excerpt: ... on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper.'” Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746. “'A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar ... to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it ...

Excerpt: ...a College Faculty Assoc. v. Santa Monica Community College District (2015) 243 Cal.App.4th 538, 544-45.) Even if the court were to consider Plaintiff's illegality defense, this case is distinguishable from South Bay Radiology Medical Associates v. Asher (1990) 220, Cal.App.3d 1074. In that case, the court found the entire transaction to be illegal. In this case, on the other hand, there is no contention that the bylaws requiring arbitration are i...

Excerpt: ...CCP Section 473(b) permits a court to grant relief from a judgment, dismissal, order or other proceeding taken against a party on the grounds of “mistake, inadvertence, surprise or excusable neglect.” The law favors a trial on the merits, and doubts in applying Code of Civil Procedure Section 473 are resolved in favor of the party seeking relief from default. (Au–Yang v. Barton (1999) 21 Cal.4th 958, 963; Iott v. Franklin (1988) 206 Cal.App...

Excerpt: ... that agreement. As one authority has stated, there are six theories by which a nonsignatory may be bound to arbitrate: ‘(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.'” Young Seok Suh v. Superior Court(2010) 181 Cal.App.4th 1504, 1513. “It is well established that a non-signatory beneficiary of an arbitration clause is entitled to require arbitratio...

Excerpt: ... which indicate that defendant might be prejudiced by nonjoinder . . .” Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 870. Motion to Strike Portion of First Amended Complaint: The Motion by Defendant Zaky to Strike Portion of First Amended Complaint is DENIED. Defendant moved to strike Paragraph 23, which stated, “Plaintiff is entitled to all reasonable costs of collection, as related to the unpaid balance due and owing by Defendants.” Cod...

Excerpt: ...pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” State Farm failed to meet its burden of proof to show that Plaintiff cannot prove any of the causes of action. Plaintiff has s...

Excerpt: ...l.App.3d 516, 529 (disapproved on other grounds); Britt v. Superior Court (1978) 20 Cal.3d 844, 864-865; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198. Defendants showed the information is relevant to their defense as to damages and the records could lead to the discovery of admissible evidence. A compelling interest is required to justify an obvious invasion of an interest fundamental to personal autonomy. Williams v. Superior Court (20...

Excerpt: ...hancement is appropriate. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138. See also Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 822. On its face, this case does not appear to be unusual in its complexity. Nor does it appear any enhancement is due for risk of loss or delay in payment as these factors have already been included in consideration of the lodestar. Id. Therefore, no enhancement will be applied. ...

Excerpt: ..., whose failure to serve a timely response to requests for admission necessitated” the motion. Accordingly, because Defendant's failure to serve a timely response to Plaintiff's Requests for Admission caused the filing of the instant motion, the court grants Plaintiffs' request for sanctions against Defendant Diane Lynch and imposes sanctions of $1,060.00 [(reasonable rate of $250 an hour x 4 hours) + $60) against Defendant, which shall be paid...

Excerpt: ...or Court (2004) 121 Cal.App.4th 1100, 1110. During the dissolution, the business of the partnership will wound down. The only issue involved is monetary damages. Sullivan has not shown Irreparable Injury. Probable Success on Merits: A preliminary injunction must not issue unless it is “reasonably probable that the moving party will prevail on the merits.” San Francisco Newspaper Printing Co., Inc. v. Sup.Ct. (1985) 170 CA3d 438, 442. (Emphasi...

Excerpt: ...ocedure section 1281.2 must prove by a preponderance of the evidence that: (1) the parties entered into a written agreement to arbitrate; (2) one or more of the claims at issue are covered by that agreement; and (3) the responding party refused a prior demand for arbitration under the agreement of the claims at issue. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) If the moving party meets this burden, th...

Excerpt: ... cause for the production. (Code Civ. Proc., § 2025.480, subd. (a).) Hopkins requested Hardrock's PMQ witness produce documents to support Hardrock's claims that it has been damaged millions of dollars due to delays caused by Hopkins. Hardrock created and/or maintained those records, and Hopkins does not have access to them. Hardrock, however, failed to produce any documents. Hopkins also shows good cause for the second session of deposition, as...

Excerpt: ... will promote resolution on the merits of all issues between the parties, and Plaintiffs will not suffer prejudice due to the opposition, as Plaintiffs were aware of Defendant's position no later than 01/08/2018. (Code Civ. Proc., §§ 473(a)(1), 576.) Defendant shall within ten (10) days file and serve the second amended verified answer, which is attached to the motion as Exhibit A. Defendant to give notice. ...

Excerpt: ... of this date, this task will apparently be completed soon. The court orders Defendants to respond without objection to all discovery orders within ten (10) days. At this time, terminating sanctions would be an excessive penalty. Sanctions must be in proposition to the dereliction. Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604–605. Defendants have paid the previous sanctions, and are ordered to pa...

Excerpt: ...n (1952) 39 Cal.2d 458.) In the case of payment, performance is due at the place where the payment is to be sent. (Hale v. Bohannan, supra, at 39 Cal.2d at pp. 466-68.) The burden is on the moving party to establish the facts to demonstrate that the plaintiff's venue selection is not proper under any of the statutory grounds. (Fontaine v. Super. Ct. (2009) 175 Cal.App.4th 830, 836.) Here, Defendants fail to meet their burden to show Orange County...

Excerpt: ...ation, “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (CRC 3.1350(b).) Here, the notice does not state specifically the issues to be adjudicated. Thus, the court will consider only the motion for summary judgment. A plaintiff moving for summary judgment must show tha...

Excerpt: ...n.” P & D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345. Cross-Defendant has not identified any specific prejudice caused by this amendment. The court may entertain short continuance to avoid any potential prejudice, if that becomes necessary. “[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer...

Excerpt: ...ding in particular, the parties against whom the settlement agreement is sought to be enforced. (See Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 305.) The written agreement at issue here has been signed by all of the parties to this action, which is referenced in the agreement as the “OC COMPLAINT.” And although she is a party to the settlement agreement, Lucy Garcia is only a party defendant in a different action referenced i...

Excerpt: ...osition on the merits, the recommendation is to grant this motion. (Elston v. City of Turlock(1985) 38 Cal.3d 227, 233.) Defendant shall file a responsive pleading to Plaintiff's Complaint within 15 days. Default Prove Up Hearing. Off calendar. Defendant is ordered to give notice ...

Excerpt: ...intiff fails to show how bifurcation would promote judicial efficiency. Plaintiff to give notice. ...

Excerpt: ...350 (b), which requires the issues to be stated verbatim in the separate statement. The failure to comply with this requirement limits the court only determining if the entire summary judgment should be granted. Stating each issue separately is important to determining the motion properly. Burden of Proof: Code Civ. Proc., § 437c (p) (2) provides that “A defendant or cross- defendant has met his or her burden of showing that a cause of action ...

Excerpt: ...f financial elder abuse are: (i) defendant took/hid/ appropriated/obtained/retained plaintiff's property, or assisted in same; (ii) plaintiff was 65 years of age or older/a dependent adult at the time of the conduct; (iii) defendant took/hid/appropriated/obtained/ retained]/assisted in taking/hiding/appropriating/obtaining/retaining the property for a wrongful use/with the intent to defraud/by undue influence; (iv) plaintiff was harmed; and (v) d...

Excerpt: .... The court's discretion will usually be exercised liberally so as not to deprive a party of the right to assert a meritorious cause of action or defense. Defendants satisfied California Rules of Court, Rule 3.1324. Defendants shall file and serve her first amended verified answer to Plaintiff's Verified Complaint, a copy of which was attached as Exhibit A to the moving papers, on all parties who have appeared in this action within 10 days. Motio...

Excerpt: ...edy at law. Darbun Enterprises, Inc. v. San Fernando Community Hospital (2015) 239 Cal.App.4th 399, 409, fn 5. In addition, the terms “must be sufficiently certain ‘to make the precise act which is to be done clearly ascertainable.'” Id. at 409. A joint venture agreement may be oral and is not within the purview of the statute of frauds. Lasry v. Lederman (1957) 147 Cal.App.2d 480, 487-488. Plaintiff alleged sufficient facts to constitute a...

Excerpt: ...n appellate court should look “beyond the claim's label, which is not dispositive when reviewing a trial court's sustaining of a general demurrer. . . .Instead [the court should] focus on the complaint's ‘actual gravamen,' on its ‘facts alleged.'” Peterson v. Cellco Partnership(2008) 164 Cal.App.4th 1583, 1595. (Emphasis original). With the references to the Plaintiffs in the plural, there is a potentially viable argument that Plaintiffs ...

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Excerpt: ...laintiffs shall file and serve by 03/08/2018 the First Amended Complaint, which was attached to Plaintiffs' Motion. Plaintiffs shall attend a second deposition, as properly noticed by Defendant. Plaintiffs and or Plaintiffs' counsel shall pay the reasonable costs of the second deposition. The Jury Trial is continued to 8/6/18 at 9:00 a.m. in Department C24. All statutory discovery deadlines calculated from the trial date shall also be continued a...

Excerpt: ...rty 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.” Plaintiff to give notice. ...

Excerpt: ... (2000) 22 Cal.4th 245, 255. Plaintiff's medical records are confidential information protected by her right of privacy. Britt v. Superior Court (1978) 20 Cal.3d 844, 864-865. Plaintiff has a right to privacy as to medical conditions she has not placed at issue in this litigation. John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198. The information sought must be directly relevant to a claim or defense. Harris v. Superior Court (1992) 3 Cal.Ap...

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Excerpt: ... is GRANTED. (Code Civ. Proc., section 2033.290.) However, in the event that Plaintiff Kenneth Mayer serves a proposed response to the requests for admission that is in substantial compliance with Code of Civil Procedure section 2033.220 before the time of the hearing, the Court will deny the motion. (Code Civ. Proc., § 2033.280, subd. (c) [the court shall deem the matters admitted "unless it finds that the party to whom the requests for admissi...

Excerpt: ...inari (2005) 132 Cal.App.4th 1223, 1230.) If the moving party meets this burden, the burden shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud or unconscionability). (Villacreses v. Molinari, supra, 132 Cal.App.4th at 1230.) Here, it is undisputed that the parties entered into a written agreement to arbitrate, the claims at issue are covered by that agreement, and Plaintiff has refused to arbitr...

Excerpt: ...6. “In short, the testator's intent to benefit the plaintiff is a prerequisite to the imposition of a duty on the attorney to the plaintiff. This makes sense, as the rationale for allowing testamentary instrument beneficiaries to recover in the event of a breach by the attorney is that ‘the main purpose of the testator in making his agreement with the attorney is to benefit' those beneficiaries ‘and this intent can be effectuated ... only b...

Excerpt: ...hin 30 days. Code Civ. Proc. §§2023.010(d) and (g), 2023.030, 2030.290(c). Plaintiff Ashad Hamideh is ordered to serve verified supplemental responses without objections to the form interrogatories within 15 days. The Motions by Defendant Imran Khan (1) for Terminating Sanctions and/or Other Monetary Sanctions and Attorney Fees against Plaintiff Mohammad Hamideh and (2) for Terminating Sanctions and/or Other Monetary Sanctions and Attorney Fees...

Excerpt: ...nses, without objections, to Defendant's Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Identification and Production of Documents (Set One) within 20 days of the notice of ruling. (Code Civ. Proc., § 2031.300.) Failing to respond to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. section 2023.010(d).) So, too, is disobeying a court order to provide discovery. (Id., ...

Excerpt: ...s (Set Two): No. 17.1: No. 17.1(c): Further responses are required providing more specific information, e.g., the identity of those family members and or health care providers, if any, whom Plaintiff knows have knowledge. CCP 2030.220. Special Interrogatories: Nos. 2, 9, 10- 15 and 19- 27: No. 2: The Objection was appropriate. This Special Interrogatory referred to No. 1, which requested Plaintiff to list her health care provider for the past ten...

Excerpt: ...at agreement; and (3) the responding party refused a prior demand for arbitration under the agreement of the claims at issue. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) If the moving party meets this burden, the burden shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud or unconscionability). (Villacreses v. Molinari, supra, 132 Cal.App.4th at 1230.) ...

Excerpt: ...h. The Court sets a post-Arbitration Review hearing at 8:30 a.m. on 8/7/18 in this Department. A party moving to compel arbitration under Code Civil Procedure section 1281.2 must prove by a preponderance of the evidence that: (1) the parties entered into a written agreement to arbitrate; (2) one or more of the claims at issue are covered by that agreement; and (3) the responding party refused a prior demand for arbitration under the agreement of ...

Excerpt: ...ts' motion for summary judgment is DENIED. The motion for summary adjudication is DENIED as to Issue Nos. 1-5. Hiring Defendants' objections are OVERRULED. Issue No. 1: Plaintiff Jason Leasure's cause of action for negligence is barred by Lab. Code, § 3602 Lab. Code, § 3602(a) provides (emphasis added): “Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided...

Excerpt: ...A related cause of action “means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” (Code Civ. Proc. §§ 426.10(c).) Here, Epson's proposed cross- complaint is compulsory. (See Time for Living Inc. v. Guy Hatfield Homes (1991) 230 Cal.App.3d 30, 38-39 [indemnity claims arise out of the same occurrences or series...

Excerpt: ...ion application is under consideration or a denial is being appealed, the borrower is making timely modification payments, or a foreclosure prevention alternative is being evaluated or exercised.” Here, the SAC alleges that Defendant Chase collected late fees while Plaintiff was in compliance with her permanent loan modification. (SAC ¶ 52.) Defendant's contention that the provision applies only while loan modification applications are under c...

Excerpt: ...ssor client just because the will becomes irrevocable at the testator's death.” Baker Manock & Jensen v. Superior Court (2009) 175 Cal. App. 4th 1414, 1422. Assignment Ineffective: In 2000, Robert and Suzanne Skowron engaged AmeriEstate Legal Plan, Inc. They retained Stephen Clemmer as their attorney to draft a living trust. Robert is deceased. Suzanne assigned her rights to Plaintiffs. As a matter of California public policy, legal malpractice...