Excerpt: ...Where there has been a response to RPDs that the propounding party finds inadequate, the propounding party may file a motion compelling production upon a showing of good cause. (CCP § 2031.310(b)(1) and (2); CRC Rule 3.1345; Weil & Brown, Cal. Prac. Guide, Civil Procedure before Trial §8:1494.1.) This motion may be utilized to attack a response containing objections, an agreement to comply that is incomplete, or a statement of inability to comp...

Excerpt: ...een materially affected by reason of active duty service, the court may grant a reasonable deferment of the payment obligation for a period of time equal to the length of the active duty service. Here, petitioner has provided this Court with a copy of his military orders, calling him from Reserve to Active Duty, effective 05/20/18. Prior to that reporting date, petitioner had incurred various periodic repayment obligations, including a mortgage, ...

Excerpt: ... for a debt incurred by the person's spouse before marriage.” (Fam. Code § 913.) “The finding of a trial court that property is either separate or community in character is binding and conclusive on the appellate court if it is supported by sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to different inferences; and if a trial court determines that a presumption has been overcome such determina...

Excerpt: ...be important in a particular case because it impacts the procedural mechanism available to attack the judgment, when the judgment may be attacked, and how the party challenging the judgment proves that the judgment is void." (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1326, 1327.) Defendant has not shown, here, that the judgment is void on the face of the record. (OC Interior Services, LLC, 7 Cal.App.5th 1318...

Excerpt: ...dings of arbitrators on questions of fact are final and conclusive and are not subject to judicial review, except under certain circumstances specified by statute, such as fraud, corruption, prejudicial misconduct in procedural matters, exceeding arbitrators' powers, or so imperfectly executing those powers that a mutual, final, and definite award was not made.” Olivera v. Modiano-Schneider, Inc., 205 Cal. App. 2d 9, 14 (Ct. App. 1962)(“Olive...

Excerpt: ...curity laws, and unauthorized stock trading. Mastick v. TD Ameritrade, Inc. (2012) 209 Cal. App. 4th 1258, 1263. Timeliness of Pleadings Neither the Petition itself, nor respondent Bhaskar Chandrakant Vyas's (“Respondent”) Response are untimely. The one-year time frame for filing a petition to confirm an arbitration award pursuant to 9 U.S.C.A. § 9 is permissible and nor mandatory. Optimal Markets Inc. v. FTI Consulting, Inc., No. 08-5765 SC...

Excerpt: ... th 242, 249; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Claimant properly objected to the excessive length of the reply and the new evidence submitted with the reply. (Gafcon, Inc. v. Ponsor & Assocs. (2002) 98 Cal.App.4 th 1388, 1426.) Claimant points out that the Reply papers, which total 76 pages including the memorandum, reply separate statement, declarations and exhibits, are essentially a new MS...

Excerpt: ...d is Granted. Partnerships filed their original Petition to Vacate the interim award on November 17, 2019. On November 20, 2019, the final award was issued, and shortly thereafter, Partnerships filed this Amended Petition. Thus, the operative pleading is the Amended Petition to Vacate, not the original Petition. (State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4 th 1124, 1131 [“The amended complaint furnishes the sole basis for the c...

Excerpt: ...280(a); Devonwood Condo. Owners Assn. v. Farmers Ins. Exch. (2008) 162 Cal. App. 4th 1498, 1505. However, in regard to appraisals, such an arbitration would be before appraisers and not an arbitrator, whom generally have more limited powers that arbitrators. Devonwood, supra, at 1505. In this instance, the appraisers would only be able to determine the fair market valuation (“FMV”) of the property located at 4701 Teller Ave., Newport Beach, C...

Excerpt: ...tion seeks consolidation, it is procedurally defective, as it does not identify for each case which parties have appeared, it was not filed under the lowest-numbered case and does not include each caption. Nor does it demonstrate that the Notice was filed in each case sought to be consolidated. And while the parties and counsel listed on the proof may be complete, that is not self-evident from the proof itself. Procedural compliance with C.R.C. 3...

Excerpt: ... Cal.2d 598, 600 (court may take judicial notice of its own records in assessing motion for new trial); Nichols v. Hast (1965) 62 Cal.2d 598, 600 (judicial notice is proper of the minute orders); Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 438 (judicial notice taken of the dates of court filings and dates of events recorded therein).) The Court lacks jurisdiction to grant a new trial. A motion seeking a new trial is subject to strict...

Excerpt: ...rsuant to CRC Rule 1.201. The Court hereby orders Plaintiff's counsel to re-file redacted versions of the Petition pursuant to the above rule within five-days of the hearing. As for the arguments, “A civil cause of action . . . generally accrues at the time of the [injury].” [Citation] “That date may be postponed under the delayed discovery doctrine. [Citation.] Under this doctrine, a cause of action does not accrue until the plaintiff disc...

Excerpt: ...h 32, 44-45.) As such, until there is an actual order staying the litigation, this Court may exercise its continuing power to designate this matter as complex. (CRC Rule 3.403(b).) Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790 (“Brock”) and Twentieth Century Fox Film Corp. v. Superior Court(2000) 79 Cal.App.4th 188 (“Twentieth Century”) do not require a different result. Brock explains that a party must take action to co...

Excerpt: ...ct an award rendered by the arbitrator shall be filed in any court of competent jurisdiction in the county in which the property is located.” [Emphasis added.] Vincent Decl., Ex. A. “[P]olicies favoring the efficiency of private arbitration as a means of dispute resolution must [] sometimes yield to its fundamentally contractual nature, and to the attendant requirement that arbitration shall proceed as the parties themselves have agreed.” [...

Excerpt: ... motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent therewith, and (3) a refusal by the other party to arbitrate. Mansouri v. Superior Court (2010) 181 Cal.App.4 th 633, 640; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4 th 1569, 1575. The burden rests with the party seeking to compel arbitration ...

Excerpt: ...ute's cost-shifting provisions.” (Id. at 142.) “[I]t is apparent that once the conditions of … section 998 are met, a defendant may be required to pay expert witness fees incurred during arbitration. . . There is nothing to suggest that the final phrase [of section 998(d)—'in addition to plaintiff's costs'— applies only to cases that go to trial but not to arbitration. Indeed, it is evident that the above statute uses the term ‘plaint...

Excerpt: ... of the petition on respondents and any others with a recorded interest in the subject property as required. See, Health & Safety Code § 17980.7(c). Also, petitioner City of Westminster submitted evidence of substandard conditions at the subject property and failure to rectify such conditions that supports appointment of a receiver. On April 29, 2019, the Court appointed Mr. Eric Beatty Receiver on an interim basis for the real property which is...

Excerpt: ... Motion is not stayed pending appeal. CCP §916(a); Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368-369, superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197 Defendant Wells Fargo Bank, N.A,'s Motion for an Award of Attorney's Fees under Civil Code §1717 is Granted. The Court has considered all of the parties' papers, including the supplemental briefing ordered by the Court on May 10. 2019, t...

Excerpt: ... arbitration appears to have been pursued against “Larkin.” The Award is against Larkin. The fact that this may have been a mistake may be immaterial to the Court's determination. Arguably any correction in the final award must be made by the arbitrator, which may then be confirmed by the Court. Without a valid reason for correction and without consistent paperwork the only thing this Court may do is confirm the award as written. CCP §1286.2...

Excerpt: ...erged into a single proceeding and result in only one judgment. (Hamilton v. Asbestos Corp., Ltd.(2000) 22 Cal.4th 1127, 1147-1148 [in consolidation for all purposes, two actions are merged into a single proceeding and result in only one judgment]; Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 1053 [“Consolidation, as a procedural matter, converts two cases into one action.”]; Bridewell-Sledge v. Blue Cross of California (9th Cir. 2015) 79...

Excerpt: ..., it expressly prohibits such death knell responses: “if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.” §575.2(b). In addition, although plaintiff's counsel cited the wrong subsection, CCP §473 does provide a vehicle for having this voidable order set aside. Counsel cites to sub...

Excerpt: ...At this time, the Court is not inclined to continue the hearing further. There being no evidence that the bankruptcy case is pending, and with the evidence which was received of the bankruptcy discharge, the Court is inclined to rule as follows: According to the records, Plaintiff received a Chapter 7 bankruptcy discharge in September, 2018. (See 12/27/18 Low Decl. herein, and Exhibits.) A Chapter 7 discharge relieves an individual debtor from pe...

Excerpt: ...ier Bank and its E&O carrier, Progressive. Although the latter denied coverage, it eventually agreed to pay Premier $350,000 with a release of any related claims for reimbursement. Plaintiffs asked Premier Bank to pay them for their investigatory (albeit non-retained) efforts in the approximate amount of $170,000. Premier Bank initially refused, but ultimately paid plaintiffs $99,000 in exchange for a release of all future claims against the bank...

Excerpt: ...B owes Curci under the Judgment. This is a collective limit placed on the assignment of payment rights across the six notes. (CCP § 708.510(d).) JPB argues that the face value of all the notes which is said to be over $42.6 million (not including interest) is far more than the outstanding amount of the judgment here, which appears to be in the range of $11 million at this time. However, the Court is not authorizing the Judgment Creditor to colle...

Excerpt: ...ermine if the Opposition was timely filed and served and therefore disregards the same. (See Calif. Rules of Court, rule 3.1300, subd. (d).) Additionally, no evidence was timely filed by Debtor, also as ordered by the Court, so there is no evidence before the Court as to income, expenses, etc., that would allow the Court to properly determine a specific dollar amount that Creditor would be assigned. However, pursuant to CCP § 706.050: “. . . [...

Excerpt: ... public airport. “Where the lateness of the claim is attributable to the failure of the claimant ... to conduct a reasonably prudent investigation of the circumstances of the accident, relief from the claims filing statute is not available.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1296.) Petitioner has also failed to demonstrate any effort, much less a diligent effort, to retain legal counsel within six mont...

Excerpt: ...Jury Instructions Withdrawn, f. 11/13/18.] As a result, these were not submitted to the jury to decide in connection with their verdict. [See Special Verdict f. 11/13/18.] The jury was only asked to consider awarding plaintiff noneconomic damages for which the jury found the plaintiff was not warranted compensation. Case law instructs that noneconomic damages are perhaps uniquely within the province of a jury to decide because they are difficult ...

Excerpt: ... Mr. Rodriguez on 10/23/18 (ROA 10), that he was served with this Motion on 10/29/18, and City asserts that he appears to be the record owner (Complaint ¶ 5). But no evidence is presented as to whether anyone else has a recorded interest in the subject property. City states (MPAs pp. 13-14) that it thoroughly searched “relevant recorded documents” to attempt to locate anyone else with an interest in the Property. But no evidence is presented...

Excerpt: ... property. City has failed to do so.. City has shown that the Petition was served on Vera Arias and any other interested persons by mailing it to the property address and posting it there, and that Sandra Arias was served personally. City also states that it conducted a “reasonably diligent search” and could not find evidence of anyone else with a claim to Vera Arias' interest in the property. (Petition p. 4.) But no evidence is presented as ...

Excerpt: ...C.P. § 412.20(a). With the exception of the last document, which appears to be a partial printing, the documents attached to the Motion do not have the seal of the Court, the signature of the clerk, or a Court case number. There are also documents from what appears to be a different case with different defendants. This is all improper. Although the records on file with the Court do have the proper seal, signature, and case number, it does not ap...

Excerpt: ... states that he been provided with extensive documentation to review in order to enable him to evaluate this matter and formulate opinions, including Mr. Mann's responses to form interrogatories and special interrogatories, the transcript of Mr. Mann's deposition, medical records pertaining to Mr. Manns from Orange County Fire Authority, Saddleback Memorial Medical Center, Caducceus Medical Group, St. Joseph Health Mission Hospital, Pain Manageme...

Excerpt: ..., Inc. C.C.P. § 437c. From the evidence before the Court attached to the declaration of attorney Jack H. Snyder, as well as the declaration of Bancroft S. Gordon (Vice President, Assistant General Counsel & Corporate Secretary at Marriott International, Inc.), it is reasonably deducible that 1) there is no legal relationship between Marriott International, Inc., and Newport Coast Resort; 2) there is an absence of ownership or management of the N...

Excerpt: ...o constant and pervasive “as to render [it] essentially at home in the … State.” (Daimler AG v. Bauman (2014) 571 U.S. 117, 122.) “[O]nly a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there.” “With respect to a corporation, the place of incorporation and principal place of business are “ paradig[m] ... bases for general jurisdiction.” A showing based on a different grounds ...

Excerpt: ...8, no reason for the stay was specified as required by CRC Rule 3.650(c), the Notice was not properly served as required by CRC Rule 3.650(a), and the stay was filed after the Motion, Opposition, and Reply papers had already been filed. Therefore, the Court's ruling on this Motion is appropriate at this time. Inadequate Meet & Confer Pursuant to C.C.P. § 439 (eff. 01/01/18), Recon was required to meet and confer with Plaintiff at least five days...

Excerpt: ...Defendant made a substantial 998 offer to Plaintiff, $75,100, which the Plaintiff did not accept. At trial, Plaintiff was not awarded nearly as much as the 998 offer (a $500 jury verdict). Under CCP § 998, therefore, Defendant is entitled to recover its post-offer (ordinary) costs from the Plaintiff, as well as in the Court's discretion, be awarded its post- offer expert witness costs. (CCP §998(c).) The Court finds it appropriate here to award...

Excerpt: ...had the right to use and enjoy that property in any manner they pleased: whether that be using the embryos to try and achieve a pregnancy, giving them to others, or storing them elsewhere indefinitely.” The right to spend money on storage fees, or a failed frozen transfer, is novel but the idea that there was some inchoate value in just having them around in storage might be. In other words, is there value in hope? Plaintiffs also assert a pote...

Excerpt: ...Palo Alto (2007) 157 Cal.App.4th 728, 744.) There appear to be certain deficiencies with the moving papers. First, a plaintiff cannot obtain summary judgment on a breach of contract cause of action without evidence of the amount of damages. (Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 241.) Here, the moving papers did not include material facts about the amount of damages, nor does the moving declaration have tes...

Excerpt: ...laintiff and his dog. There is conflicting evidence as to precise series of events, but nothing changes the fact that Max escaped the property unrestrained and attacked. Shannon and Dwight Porter (property owners) move to summarily adjudicate in their favor the two causes of action alleged against them. Max was being cared for in their home, and escaped from their home en route to attacking plaintiff. Summary judgment is no longer a disfavored re...

Excerpt: ...Palo Alto (2007) 157 Cal.App.4th 728, 744.) There appear to be certain deficiencies with the moving papers. First, a plaintiff cannot obtain summary judgment on a breach of contract cause of action without evidence of the amount of damages. (Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 241.) Here, the moving papers did not include material facts about the amount of damages, nor does the moving declaration have tes...

Excerpt: ...nt Statement after the court- ordered meet and confer took place. (See 4/20/18 Minutes, p. 3-4). The record reflects that the parties have also entered into a stipulated protective order. RFPs No. 7 and 10 remain in dispute. (See Joint Stmt. 5/21/18.) The Court now Grants the motion to compel as set forth below. The 1 st cause of action in the operative complaint, alleges that Defendant Taylor purchased the Red Hill property in 2011 using approxi...

Excerpt: ...OW CAUSE This case comes to Dept. 16 by transfer. This may have been a straightforward employment dispute. However, for whatever reason it has become much more. There are more than 1000 filings in the Registry of Action, representing:  14 attorneys/firms coming and going;  6 aborted trial dates;  24 pleading/attacking motions;  7 generations of operative pleadings;  7 discovery motions. Before the Court on 5/18 are 10 additional di...

Excerpt: ...ing tortfeasors. Cal. Code Civ. Proc. § 877.6(c). A party contesting the good faith of a settlement has the burden of showing there was a lack of good faith in the settlement. Code of Civil Procedure § 877.6(d). While it is true that “[t]he party asserting the lack of good faith [has] the burden of proof on that issue,” it is nonetheless true that, “[i]f ‘there is no substantial evidence to support a critical assumption as to the nature...

Excerpt: ...orked. La Bodega Market, a dba, even if unregistered, is not a separate legal entity from Defendant Holy Foods, Inc. (Pinkerton's Inc. v. Sup. Ct., 49 Cal.App.4th (1996) 1342, 1344.) Holy Foods, Inc. is clearly an express beneficiary of La Bodega Market as the owner of the dba pursuant to Section 1c of the Arbitration Agreement. Defendant acknowledged that it had mixed up describing Exhibit “A” with “B”, and then Exhibit “C” with “D...

Excerpt: ...re of the records sought, significant financial discovery and disputes regarding the breadth and scope. The Court is not persuaded to deny the motions for this reason. Plaintiff alternatively requests that the Court continue the hearings further. As to this, Defendants question the sufficiency of the declaration of plaintiff's counsel (Mr. Gaines) to support the request for a mandatory continuance under CCP §437c(h). “An opposing party's decla...

Excerpt: ...heir reply briefs after the defendants' opposition brief was filed was improper. The Court will not consider the evidence filed by the plaintiffs after the defendants' filed their opposition brief because the defendants did not have an opportunity to respond to the evidence. Insufficient Evidence Filed in Support of Motion - Evidence in Reply: The moving party generally may not rely on additional evidence filed with its reply papers. San Diego Wa...

Excerpt: ... served by email. (See CCP §1008(a); Docket #217; CCP §1013(a)) and CCP §1010.6(a)(4)). On this record, it appears that Plaintiff acted in time. However, the papers do not present new facts or circumstances to justify the court's reconsideration of the ruling. (CCP § 1008(a).) For new or different facts, Plaintiff seems to cite his realization that the underlying discovery responses, which had objections, were signed by the counsel for Defend...

Excerpt: ...is settlement, pursuant to Cal. R. Ct. 3.1382. This is so that the record may be clear as to the affected pleadings. The Court intends to Grant the Motion under CCP section 877.6. The moving papers show the value of the settlement, and a reasonable basis for the same. The burden would shift to opposing parties to come forward with evidence that the settlement is so far out of the ballpark as to be inconsistent with the equitable purposes of secti...

Excerpt: ... ACTION FOR VIOLATION OF PENAL CODE SECTION 496 AGAINST DEFENDANT R.E. ADVISORS CORP. The Court is inclined to grant the motion for summary adjudication of the 9 th cause of action in the First Amended Complaint, for receiving and withholding stolen property under Penal Code 496. Penal Code §496 describes a crime referred to as receiving or withholding stolen property (See Judicial Council, Criminal Jury Instruction 1750.) The crime has a specif...

Excerpt: ...d in the amount of $960.00 payable in 20 days. The plaintiff has established that the discovery requests were served on September 13, 2017 with initial responses were served in December 2017. This motion was filed February 9, 2018. The defendants served a supplemental response to Special Interrogatory No. 13 on April 25, 2018. The defendants have not provided any reasonable excuse or justification for why it took them until April 25, 2018 to prov...

Excerpt: ... California Rules of Court generally are applicable. Citing to, and attempting to apply, Federal Rules of Civil Procedure and federal court rules and regulations as a basis for defendants' arguments in state court is generally incorrect and improper. Reviewing the laws of the State of California and applying them correctly to all aspect of this lawsuit will save the parties, and the Court, a great deal of time. B) Procedural Issues 1) Invalid Pro...

Excerpt: ...ered on October 24, 2017 (see ROA #26). According to the court records, the summons and complaint were served upon the Defendant, on or about August 8, 2017. This would make the Defendant's answer to the complaint due on or about September 7, 2017. Under California Rule of Court, 3.110(d), the parties may stipulate once, without leave of court, to a single, 15-day extension of time for the Defendant to respond to the complaint after being served....

Excerpt: ...the facts in Plaintiff's Complaint, and in the moving and opposing papers, Riverside County Superior Court appears to be the proper venue for this action. The motor vehicle accident occurred in Norco, CA. Plaintiff lives in Riverside, CA. Defendant Katelyn Bushnell lives in Fontana, CA. Defendant Hemborg Ford is based in Norco, CA. Each of the above cities is in Riverside County. As incident occurred in Riverside County, and all of the parties re...

Excerpt: ...rprise or Excusable Neglect” (CCP § 473(b)): The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).) The statute specifies that the application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed … othe...

Excerpt: ...nts failed to comply with CCP sections 430.41 and 435.5, which require the moving party, at least five days before the date the responsive pleading is due, or at least five days before the date a motion to strike must be filed, to conduct a meet & confer in person or by telephone with the party who filed the challenged pleading for the purpose of determining whether an agreement can be reached that would resolve the objections being raised in the...

Excerpt: ...as merit. Pursuant to Code of Civil Procedure Section 472, “[a]ny pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issues of law thereon…” Additionally, the failure to oppose the Demurrer may be construed as having abandoned the claims. See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not o...

Excerpt: ...esponses are untimely. C.C.P. § 2030.290(a). The party propounding may file a motion to compel answers to interrogatories and seek monetary sanctions. C.C.P. § 2030.290(c). The Court is required to impose monetary sanctions, unless the sanctioned party acted with substantial justification. Id. The Motion is Moot as Substantive Responses Were Provided After the Motion Was Filed Subsequent to Enterprise's filing of its Motion, it appears that Pla...

Excerpt: ...e or occupy the Thier Property or any portion of it. This order necessarily prohibits the locking of any gate or otherwise restricting ingress or egress across the Easement. This order also prohibits the defendant from harassing or intimidating such individuals from using the Easement as provided in this order. This order only extends to vehicular and pedestrian ingress and egress. It specifically does not allow for equestrian use of the Access E...

Excerpt: ...ded 03/29/12, Exhibit 6 – Defendant's letter to Plaintiff dated 01/09/13, Exhibit 7 - Declaration of Shannon Childs in Support of Defendants' previously filed Motion for Summary Judgment, Exhibit 8 - Court's Docket in Plaintiff's prior lawsuit, Exhibit 9 - First Amended Complaint filed in Plaintiff's prior lawsuit, Exhibit 10 - Notice of Ruling RE Defendants' Motion for Terminating Sanctions filed in Plaintiff's prior lawsuit, Exhibit 11 - Requ...

Excerpt: ...gle question to be resolved on this demurrer is whether those causes of action are preempted. California's Uniform Trade Secret Act provides the exclusive civil remedy for conduct that is “based upon” misappropriation of a trade secret. Silvaco Data Sys. v. Intel Corp. (2010) 184 Cal.App.4 th 210, 236; K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc. (2009) 171 Cal.App.4 th 939, 954. The phrase “based on” is to be interpreted...

Excerpt: ...rcum LLP and Stan Lam Motion for monetary sanctions against Plaintiff Leslie Andrews in the total amount of $17,740.57 is Denied. The plaintiff has established good cause for her failure to attend the settlement conference in person. The plaintiff has presented evidence which supports a finding that she was physically unable to attend the conference in person. Trial counsel, parties, and persons with full authority to settle the case must attend ...

Excerpt: ...band Albert Arizmendez, which Plaintiff alone now seeks to rescind. (Complaint ¶¶ 8, 11, 17-19, 21 and Ex. 1; Prayer at pp. 25-26.) A judgment in Plaintiff's favor would necessarily affect Mr. Arizmendez's rights. Plaintiff claims that her husband need not be joined, as their interests are aligned. But that is not necessarily so. The Motion is therefore Granted, as to the Fourth (Quiet Title) Cause of Action, with 15 days leave to amend. Defend...

Excerpt: ...c. (“CCP”), § 426.30.) A cross-complaint is “related” to the complaint if it arises out of the same transaction, occurrence, or series of transactions or occurrences as the complaint. (CCP § 426.10(c).) All other cross-complaints are permissive cross-complaints. A liberal construction is given to the application of the compulsory cross-complaint statute. (Align Technology, Inc. v. Bao Tran(2009) 179 Cal.App.4th 949, 967.) “The test re...

Excerpt: ...r to Plaintiff as the sole borrower. The Demurrer on this ground is thus Overruled. The Demurrer also asserts that the Complaint is uncertain, as it violates CRC 2.112. A demurrer for uncertainty should be sustained only where the pleading is so bad that defendant cannot reasonably respond. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 615-616.) Here, the body of the Complaint reflects that each of the stated causes of acti...

Excerpt: ... of a triable issue as to a COA or complete defense. (Id.; Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) “Because of the drastic nature of the summary judgment procedure and the importance of safeguarding the adverse party's right to a trial, the moving party must make a strong showing. His affidavits are strictly construed and the opposing party's are liberally construed.” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1038...

Excerpt: ...ar previously worked for plaintiff, a refinance mortgage specialist. They are alleged to have absconded with plaintiff's “trade secrets” to work for and benefit a direct competitor, co-defendant Giza Exchange Inc. These are plaintiff's nine discovery motions, and defense counsel's three motions to withdraw. Motions to Withdraw – Denied, Without Prejudice First, there is a concern over service. All papers in support of the motion must be ser...

Excerpt: ... (“COAs”) are at best uncertain as pled. For example, the Demurrer asserts that each fails as Plaintiff has not alleged tender. Plaintiff's Opposition failed to respond to that argument. Tender of indebtedness is required in an action to set aside a trustee's sale for irregularities in sale notice or procedure, but is not necessarily required for other claims. (Alvarez v. BAC Home Loans Servicing, L.P.(2014) 228 Cal.App.4th 941, 951–952.) H...

Excerpt: ...#123], to provide verified responses to each of the defendant's (1) Special Interrogatories (Set One), and each of the defendant's (2) Demand for Production of Documents (Set One). In addition, this is the hearing of the three Defendants' Motion to deem their jointly-propounded (3) Requests for Admissions (Set One) admitted against the Plaintiff. The Defendant(s) previously withdrew a fourth Motion to Compel, regarding Form Interrogatories. The m...

Excerpt: ...te the 60–day deadline. (Id. at 682; see also Hewlett-Packard Company v. Oracle Corporation (2015) 239 Cal.App.4th 1174, 1189 [in the absence of some event which has reopened the 60–day period, the trial court cannot abuse its discretion by refusing to hear an untimely motion].) Here, no explanation has been offered to excuse the tardy filing, and Plaintiff claims to have incurred additional litigation costs in the interim. The Motion could t...

Excerpt: ...ion for Judgment on the Pleadings against Savage Enterprises, Inc.'s entire Cross-Complaint and in the alternative against each and every individual cause of action is Granted with 15 days leave to amend. The Cross Complainant Savage Enterprises, Inc.'s has indicated that it intends to amend the Cross-Complaint to remove the current four causes of action and replace them with a single cause of action for Declaratory Relief. This is the first amen...

Excerpt: ... suffering an involuntary loss of counsel at this time. It appears the Plaintiffs are adding counsel. (See Reply Brf.). This does not reflect the sort of exigent circumstances that case law illustrates as supporting a trial continuance in relation to the substitution of counsel. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 196 (where attorney abandoned the client shortly before trial, and plaintiffs sought to bring in new counsel, trial continu...

Excerpt: ...after assumed his new role as a senior executive. Plaintiff now no longer wants to honor his agreement to submit disputes to arbitration claiming that he did not understand what he was doing, and that the arbitration agreement is unconscionable. On a motion to compel arbitration under CCP §1281 et seq, the moving party has the burden of demonstrating (1) an arbitration agreement covering the controversy, (2) a demand for arbitration consistent t...

Excerpt: ...till finds, that a stay in these civil proceedings, while the Probate matters are resolved, is appropriate to avoid the risk of inconsistent trial court rulings on common issues. The instant Motion for Relief from Stay is therefore Denied. The Request for Judicial Notice is Granted, as to the existence of and legal effect of the documents presented therein. (Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundati...

Excerpt: ... Courts treat the demurer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. Ramirez v. Tulare County District Attorney's Office (2017) 9 Cal.App.5 th 911, 924. On 10/29/16, Petitioner allegedly “disciplined” her 10 year-old son when his performance during a piano lesson was not to Petitioner's satisfaction. She hit him all over his body with a wooden spoon, and forc...

Excerpt: ...fficient to constitute a cause of action is Overruled in part and Sustained in part as follows: Overruled as to the 1 st cause of action for basic Neglect under the Elder Abuse Act. Plaintiff has sufficiently pled facts supporting a cause of action for Neglect under the Elder Abuse Act (CACI 3103). Plaintiff has also pled facts to support a showing that defendant St. Elizabeth is guilty of recklessness in the commission of that neglect. However, ...

Excerpt: ..., looking to specially strike the complaint as a strategic lawsuit against public participation (SLAPP). There is also a related motion to halt plaintiff's deposition. Defendant Brett Schulte is alleged to have authored “the John Comment” which is described at FAC Para 27 and Para 48. This was a review posted online at www.RipOffReport.com on 03/17/17. Schulte is associated with Basta, Inc. a tenant rights organization based out of Los Angele...

Excerpt: ...ry requests to Plaintiff, but despite a 30-day extension of time until 10/26/17, no initial responses were ever received. In Opposition, Plaintiff states that there was an agreement to handle discovery informally and that responses will be served before the hearing. But as of the date of filing of the Reply on 2/13/17, there is no evidence that any initial responses have been received. In Reply, Defendant acknowledges there was an initial agreeme...

Excerpt: ...n the amount of $490 on each motion against the respective plaintiffs, is continued to June 15 18 to confirm valid service. The proofs of service on the discovery demands and on the motions are defective because they fail to comply with CCP § 1013a(3)(G) in that they fail to state that the motion papers were in fact placed for collection and mailing following ordinary business practices. Counsel for moving party to give notice. ...

Excerpt: ...to whom it is directed (e.g., “against defendant Smith”)]. It is not apparent then why they should be demurring. In any event, otherwise, demurrers to the fraud cause of action (2 nd), and to the indemnity cause of action (7 th) are Sustained with 15 days leave to amend. An amended complaint shall be filed and served within 15 days. For case management purposes, no new causes of action may added beyond the scope of leave to amend, without obt...

Excerpt: ...Compant; defendant Equity Funding is the deficiency judgment assignee. This is a motion to quash by MSMC, and a motion to strike by Equity. MSMC's Motion to Quash The motion is Granted. MSMC's motion to quash is based on this Court's putative lack of personal jurisdiction over the entity. As the undisputed evidence shows (per Daste Declaration):  MSMC is a Delaware Limited Liability Company, with its principal place of business in Louisiana; �...

Excerpt: ...erlin, M.D., Thomas Nass, M.D., and Lawrence B. Werlin, M.D., Inc dba Coastal Fertility Medical Clinic are Denied. Plaintiffs have not at this time established the required “good cause” under CCP 2031.310(b)(1). The information requested is private, highly sensitive medical information of non-parties. To establish the required good cause, it must be demonstrated that the information sought it “directly relevant” and “essential to the fa...

Excerpt: ... court within 60 days after the filing of the complaint”).) Plaintiff shall do so within the next two days. Per the moving papers, a settlement was reached between Plaintiff and the Defendant in March of 2017, pursuant to a written Settlement and Mutual Release Agreement which the movant seeks to enforce. While a copy of a detached stipulation page regarding entry of judgment is provided, a copy of the settlement agreement is not provided to th...

Excerpt: ...e Defendant has waived service of the summons and Complaint and has consented to this Court's exercise of jurisdiction. Defendant consented to jurisdiction because he made several general appearances by attending multiple CMC's, in person, by telephone, and through counsel. Defendant invoked the jurisdiction of the Court by requesting continuances of the CMC -- to allow him to negotiate settlement, to retain counsel, and to file an answer or demu...

Excerpt: .... Cross-Defendants /Cross-Complainants AAPER Holdings Inc. Motion requesting a finding that the settlement by and between Plaintiffs Andrea R. Moni & Fabian E. Moni and Cross- Complainant/Cross-Defendant Christopher Moore, MD is not in good faith is Denied. In determining the issue of the good faith of a settlement, the question is “whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional sha...

Excerpt: ...appears that no final judgment on the merits was entered in the prior action. (Opp RJN Exs. 1-5; Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) The Demurrer on res judicata grounds is therefore Overruled. The Demurrer also asserts that the entire action is time-barred, but that has not been established for purposes of demurrer. The Complaint alleges that Patel, through “Mortgage Corp.”, entered into a Mortgage Broker Business ...

Excerpt: ...ing on the Newport Beach property during the pendency of this litigation. The plaintiff is required to post a bond in the amount of as determined by the Court. The Court needs to know the status of the foreclosure. Probability of Prevailing - CCP § 726 : Where a creditor elects to obtain a personal money judgment rather than enforce his mortgage, the effect of the election is to waive the right to foreclose on his security. James v. P. C. S. Gin...

Excerpt: ..., the amount of the settlement is not “disproportionately low” to make the settlor's financial condition the dispositive issue. See L. C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 749. The Court believes it has sufficient information to assess the settlement, from the parties' papers and the records of this action. There is certainly more scope for MP to have liability for any future medical care for plaintiff, and for non...

Excerpt: ...le pleadings.] The demurrer is Overruled in part and Sustained with 20 days leave to amend in part, for the reasons set forth below. The Court notes that at pp. 12-13 the FAC contains two paragraphs which are both numbered as paragraph 54. The Plaintiff should correct this clerical error in its SAC. Justifiable Reliance Failure to State a Claim Overruled on this ground. Defendant argues that Plaintiff has failed to adequately plead justifiable re...

Excerpt: ...mplaint, that defendant IABA is not vicariously liable for defendant McKay's tortious conduct. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4 th 291, 296-299.) To the extent this cause of action is based on direct liability and duplicative of the 4 th cause of action for negligent hiring/supervision and failure to warn, defendant should have brought a motion to strike. A general demurrer does not lie to only part of a cause ...

Excerpt: ...ation regarding the beneficiary dealerships. Defendants are former employees and a direct competitor. Before the Court this day are four discovery motions seeking further responses. In two months there is a motion for an injunction prohibiting defendants from using information obtained from plaintiff (before or within this litigation) which might qualify as a trade secret. Collectively, it is fair to say that the parties are having information is...

Excerpt: ...efective. Although the motion raises 5 distinct sub-issues, the separate statement does not provide 5 separate headings or 5 sets of facts narrowly and specifically tailored to each of those sub-issues. The separate statement is procedurally defective because it recites the same material facts in the same order for each of the 5 sub-issues. But the sub-issues are sufficiently different from one another that it is difficult for the court to discer...

Excerpt: ...erior Court Local Rule 316, which establishes their duty to attend. Plaintiff The Irvine Co. moves to strike Defendant's answer under Local Rule 381. The Court finds that the motion is premature and Denies it without prejudice. Local Rule 316 (E) provides that, absent good cause shown, a failure to appear at an MSC is an unlawful interference with court proceedings, such that the Court may “order the person at fault to pay the opposing party's ...

Excerpt: ...l address for the Defendant Tran, the clerk therefore served a copy of the 2/23/18 minute order, upon the Plaintiff's counsel electronically on 2/23. The Court also ordered, “Plaintiff shall give notice”; “Clerk gave telephonic notice to the moving party in regards to the tentative ruling and the continued date. Clerk to give written notice to moving party and moving party to notice other party.” (Mins. filed 2/23/18, Clerk's Certificate ...

Excerpt: ...int is verified, the answer shall be verified.”].) Defendants failed to do so. Defendants concede the error, and have attempted to state a Verified Answer in the Opposition. But an opposition brief is not an Answer – a separate Verified Answer must be filed. Defendants are therefore granted 15 days leave to amend, to file an amended verified answer. Plaintiff is to give notice. ...

Excerpt: ...ost recent known address for the Defendant Vo. The Stipulation indicates that the Defendant received the summons and complaint, however, the Court requests that, any proof of service of the summons and the complaint be filed in the court records, by the Plaintiff's counsel. In addition, counsel shall report if any additional payments were received or are to be credited towards the total amount owed. Otherwise, pursuant to CCP §664.6, Plaintiff's...

Excerpt: ...fendant sufficient notice of this ruling in time to file an answer or responsive pleading. While Plaintiff has failed to submit sufficient evidence of “actual delivery” under CCP 417.20, nevertheless Defendant waived the service requirement and consented to the jurisdiction of this court by making multiple general appearances at CMC conferences and by requesting continuances of the haerings and other relief. These apearnces were made by Defen...

Excerpt: ... which states, it has filed for bankruptcy protection in the Central District of California, in case no. 8:17-bk-14545-TA. (See Docket #363, Notice of Stay f. 12/28/17, and attachments thereto, in 2012-594022.) Among the creditors or the participants who were listed in the bankruptcy notice there, included the moving attorneys here (Cornman & Swartz) as well as the plaintiff here (Mission Recruiting LLC). (See id.) This Motion is denied without p...

Excerpt: ...le on the parties' objections. In Opposition, Plaintiffs Matt and Denise Belden maintain that this is unnecessary and that Defendants' citation is insubstantial because it amounts to only 6 out of 190 pages of deposition transcript testimony. The Court is puzzled as to why Defendants submitted an email request to the discovery referee to sit in on the 8/25/17 deposition, without first submitted a motion to him. Furthermore, the Court is also puzz...

Excerpt: ...7 as Jesus Galvan Rodriguez, ROA #123], to provide verified responses to each of the defendant's (1) Special Interrogatories (Set One), and (2) Demand for Production of Documents (Set One). The Motion regarding form interrogatories was previously taken off calendar by the moving parties and is therefore not considered. [See Register of Action 143, Notice of Withdrawal]. The underlying discovery was propounded by the movants approximately seven mo...

Excerpt: ...s the landlord and new owner of the refurbished unit. The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. A defendant moving for summary judgment may prevail on the motion in one of three ways: (1) by affirmatively negating at least one of plaintiff's essential elements; ...

Excerpt: ... (just over $8 million in compensatory damages, and another $35 million in punitive damages). The Judgment is reaching its 10 th anniversary and so far plaintiff has only collected approximately $30,000 of the $43 million owed (not counting interest). This is an application by defendant to attach back accounts under the name of a third- party JCC Enterprises. This entity is NOT a judgment debtor, nor has there even been a finding that it is an al...