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

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: ...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: ...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 ...

Excerpt: ......

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: ...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: ......

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...

Excerpt: ......

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: ...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: ... 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: ...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: ...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...

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: ...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: ...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: ...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 ...