Excerpt: ...erson Most Knowledgeable; 4. Plaintiff's Motion to Compel Deposition of Defendant Brenda Stanfield; and 5. Plaintiff's Motion to Compel Further Responses to Plaintiff's Requests for Production of Documents, Set Two. The Court DENIES Defendant, Piecemakers' Motion for Protective Order. The Court GRANTS Plaintiff's Motion to Compel Further Responses to Plaintiff's Requests for Production of Documents, Set Two. The Court GRANTS, in part, and DENIES,...

Excerpt: ... records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The Court issued its ruling on the preliminary injunction by minute order dated 12-17-19 and Notice of Ruling on same was served on 12-20-19 by mail. This Motion, however, was not filed until 2-3-2020—far beyond the 10-day limitation set forth in section 1000(b). Even a motion filed one-day beyond the 10-day limitation is grounds for denial. (See Wiz Tech., Inc. v. Coopers & Lybrand...

Excerpt: ...declaratory relief claim.” (Canova v. Trustees of Imperial Irr. Dist. Employee Pension Plan (2007) 150 Cal. App. 4th 1487, 1497.) “To qualify for declaratory relief under section 1060, plaintiffs were required to show their action (as refined on appeal) presented two essential elements: ‘(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party....

Excerpt: ...rt a cause of action for elder abuse against Defendant Carehouse Health Center (“Carehouse”). (See FAC, ¶¶ 11-13.) Specifically, the FAC fails to allege specific facts demonstrating ratification or authorization by Carehouse. As a statutory “cause of action,” elder abuse must be pleaded “with particularity.” (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Second COA (Professional Negligence) and Fourth COA (W...

Excerpt: ... Defendant also contends plaintiff has not shown Defendant was properly served with the Initial Statement of Damages such that the default is void. Defendant further contends plaintiff's death necessarily changed the nature of the Complaint which requires that Dr. Hajj be allowed to respond, and that the court cannot allow a plaintiff to prove different claims or different damages at a default hearing than those pled in the Complaint. Under Code ...

Excerpt: ..., Case Number 30-2018-01014579. (Evid. Code, § 452(d).) Demurrer based on Standing: The FAC alleges Plaintiff and Defendants entered into an oral agreement according to the terms of which Defendants agreed to, in exchange for valuable consideration, design, manufacture and install bridges and veneers for Plaintiff's daughter, Ms. Bond. (FAC, Attachment BC-1.) The FAC adequately alleges facts demonstrating that Plaintiff, as a contracting party, ...

Excerpt: ...he Declaration of Jerry Noon is SUSTAINED. Plaintiff's evidentiary objections to the Declaration of David Stroud are SUSTAINED. Plaintiff's evidentiary objection to the Declaration of Jeffrey Bloom is SUSTAINED. Motion for Summary Judgment/Adjudication: Plaintiff Ascentium Capital LLC (“Ascentium” or “Plaintiff”) moves for an order granting summary judgment in favor of Ascentium and against Defendants Jeffrey H. Bloom, D.O. and Jeffrey Bl...

Excerpt: ...fendant cites Mendoza v. City of Los Angeles (1998) 66 Cal.App.4 th 1333 for this proposition. However, that case was not a demurrer case, and actually went to a jury. Mendoza involved an off-duty police officer who fatally shot his fiancé. The Court of Appeal stated, “Mendoza was both off duty and in Hawthorne, outside the jurisdiction of the Department, when he shot Clementina during a domestic dispute. The act was unrelated to his official ...

Excerpt: ...tium moves for summary adjudication of the first cause of action (breach of contract) and second cause of action (breach of guaranty). Plaintiff fails to meet its initial burden, i.e., Plaintiff fails to establish its damages. Specifically, Plaintiff represents that as of December 10, 2019, the amount of $209,860.10 is due and owing from Defendants to Ascentium under the CSA. (See PSS ¶ 9.) This statement is supported by the Declaration of Jerry...

Excerpt: ...dent. Defendant cites Mendoza v. City of Los Angeles (1998) 66 Cal.App.4 th 1333 for this proposition. However, that case was not a demurrer case, and actually went to a jury. That case involved an off-duty police officer who fatally shot his fiancé. The Court of Appeal stated, “Mendoza was both off duty and in Hawthorne, outside the jurisdiction of the Department, when he shot Clementina during a domestic dispute. The act was unrelated to his...

Excerpt: ... that the first cause of action for Violations of ICRAA, Cal. Civ. Code § 1786, et seq. fails to state facts sufficient to state a cause of action as it does not state that defendant's failure to comply did not result in a more favorable investigative consumer report. Defendant does not establish this is an element that must be pled by plaintiff. Rather, this is an affirmative defense for defendant to assert as it presumes a failure by defendant...

Excerpt: ... the 3 rd, 4 th, and 7 th COAs is that is that they are superseded by the CUTSA. However, UTSA does not displace noncontract claims that, although related to a trade secret misappropriation, are independent and based on facts distinct from the facts that support the misappropriation claim (Angelica Textile Services, Inc. v. Park (2013) 220 Cal.App.4th 495, 506, as modified (Oct. 29, 2013), as modified on denial of reh'g (Nov. 7, 2013).) Here, in ...

Excerpt: ...(“Related” or “defendant”) contends the first COA, for Violations of the Investigative Consumer Reporting Agencies Act (“ICRAA”), Cal. Civ. Code § 1786, et seq. fails to state facts sufficient to state a cause of action as it does not state that defendant's failure to comply did not result in a more favorable investigative consumer report. Defendant does not establish this is an element that must be pled by plaintiff. Rather, this is...

Excerpt: ...neous exchange” of a list of expert witnesses the parties “expect” to call as expert witnesses at trial. (Code Civ. Proc., §§ 2034.210(a), 2034.260(b).) Section 2034.300 provides that a party who has timely and completely engaged in the initial expert exchange may object and seek to exclude the expert opinion of any witness offered by any other party who has failed to: (a) list that witness as an expert under section 2034.260; (b) submit ...

Excerpt: ...position to the Demurrer is 21-pages. The Court will disregard any pages past the 15-page limit. Request for Judicial Notice: Defendants' Requests for Judicial Notice of Exhibits A-K are GRANTED, pursuant to Evidence Code section 452(d), however, the Court takes notice of the existence of the documents, only, and not Defendants' characterization of the same, within the Requests. Demurrer: As to whether the Court lacks jurisdiction based on the Ba...

Excerpt: ...jects that the documents sought are protected by Plaintiff's right to privacy. The court agrees, and grants the motion to quash the FS SDT. Where the right to privacy is asserted as a protection against discovery, the person raising the objection must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Williams v. Superior Court (...

Excerpt: ...tal Corp.'s Motion to Consolidate is GRANTED as follows: Westover v. Simon, D.D.S., et al., Case No. 30-2019-01093125-CU-BC-CJC (“Westover Action”) is consolidated with this action, Bond v. Simon, et al., Case No. 30-2018-01014579 (“Bond Action”), for all purposes. The Bond Action is to be the lead case. The two cases Defendants are seeking to consolidate involve common questions of law and fact, i.e., they arise from the dental services ...

Excerpt: ...Code § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. [Citation.] When the plaintiff...

Excerpt: ...FA Nos. 11, 13, 15, and 18 these requests are compound. The Requests should be propounded as separate requests. As to RFA Nos. 5, 6, 7, 10, 16, 17, 19, and 10, the Motion is GRANTED. Despite Defendant's objection, these requests are not compound, and the defined term of “PROFESSIONAL NEGLIGENCE” is not vague, ambiguous or compound. Defendant is required to provide to provide a complete and straightforward response as the information reasonabl...

Excerpt: ... no e-mails responsive to any of the requests at issue, defendant is to provide a supplemental response concerning the inability to comply which complies with Code of Civil Procedure section 2031.230. Good Cause and Relevance: Defendant's supplemental responses contain statements of compliance with the demand that are incomplete. Code of Civil Procedure section 2031.220 provides, in relevant part, that “[a] statement that the party to whom a de...

Excerpt: ...y served an Amended Statement of Damages on him by mail, as opposed to personal service, rendering the default void. Defendant relies on Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, and Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308 (“Schwab”), but these cases do not appear to apply here if plaintiff properly served the Initial Statement of Damages, and plaintiff is seeking less than what was originally sought in t...

Excerpt: ...dant Piecemakers' Person Most Knowledgeable; 4. Plaintiff's Motion to Compel Deposition of Defendant Brenda Stanfield; and 5. Plaintiff's Motion to Compel Further Responses to Plaintiff's Requests for Production of Documents, Set Two. The Court CONTINUES the five motions to 4-2-2020, Dept. C11, at 2 pm, as set forth below. (1) Defendant Piecemakers' Motion for Protective Order: Code of Civil Procedure section 2031.060(a) provides that when a requ...

Excerpt: ...bdivision (b) provides that “[t]he court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.” (Code Civ. Proc. § 2033.300(b).) Any doubts in applying section 2033.300 must be resolved in favor of th...

Excerpt: ...ndants prevailed on their special motion to strike and are thus entitled to their reasonable attorney fees and costs pursuant to Code of Civil Procedure section 425.16(c). Defendants seek an hourly rate of $425 for their counsel. The Motion is supported by the Declaration of Blut who states his normal and customary hourly rate is $425.00. (See Blut Decl., ¶ 2.) The declaration, however, fails to set forth counsel's level of experience and fails ...

Excerpt: ...to maintain a cause of action. Defendants' Request for Judicial Notice as to the court records contained in Exhibits A and B is GRANTED pursuant to Evidence Code section 452(d). The First Amended Complaint (“FAC”) alleges defendants own and reside in a single-family home located at 203 Calle Delicada, San Clemente, California, situated in a common interest development governed by a set of covenants, conditions, and restrictions (“CC&Rs”),...

Excerpt: ...p Place, Canyon Lake, CA 92587, as requested by Plaintiff. (Evid. Code, § 452(c) and (h).) Demurrer: The Judgment entered on March 8, 2016 in the Family Law Case was pursuant to Stipulated Judgment and addressed child custody/visitation/support, spousal support, division of community property, including the Canyon Lake Property and Mission Viejo Property, vehicles, personal items, debts, and costs in the divorce. (Defendant's RFJN, Exh. B, Stipu...

Excerpt: ...wherein Plaintiff agreed to loan Defendant JB FIBER the principal sum of $35,902.05; Defendant JB FIBER agreed to make 60 monthly payments of $820.48 payable on the 2 nd of each month beginning on 9-2-16; that the last payment received by Plaintiff from Defendant JB FIBER pursuant to the VFA was on 12-2-17; that on 1-2-18, Defendant JB FIBER was in breach of the VFA for failing to make the requisite monthly payment; and that Defendant JB FIBER's ...

Excerpt: ...Response” to Form Interrogatory No. 15.1 on 5-24-19. On 8-6-19 the Court granted Plaintiff Raquel Pineda's unopposed motion to compel a further response to form interrogatory 15.1. On 8-20-19 Defendant served Further Supplemental Responses. Raquel appears to argue that despite these additional responses, Defendant has failed to comply with the Court's 4-15-19 and 8-6-19 Orders because such responses are still deficient. This is not well-taken. ...

Excerpt: ...; Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149.) Code of Civil Procedure section 405.31 provides, in pertinent part: “the court shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim. The court shall not order an undertaking to be given as a condition of expunging the notice where the court finds the pleading does not contain a real property claim...

Excerpt: ...ERRULED. The Court declines to rule on defendant State of California, Department of Transportation's [“Caltrans”] objections to plaintiff's evidence submitted in Opposition to its Motion for Summary Judgment. The evidence objected to is not material to the Court's disposition of this Motion. (Code Civ. Proc., §437c(q).) Defendant Caltrans' Motion for Summary Adjudication is DENIED. Defendant has not met its burden to show one or more element...

Excerpt: ... identify what facts were discovered as a result of this rebuilding which would give rise to her new causes of action. (See Davis Decl., ¶ 10.) Plaintiff then goes on to list several of the new causes of action, again without explanation of the facts. (Ibid.) Plaintiff also indicates facts were discovered “after documents had been produced in discovery ongoing but within the last year,” but fails to identify a single document or what fact in...

Excerpt: ...e the employer liable for that employee's acts. There must be some nexus between the employment and the subject injury more than simple proximity. Defendant cites Bailey v. Filco, Inc. (1996) 48 Cal.App.4 th 1552 for the proposition that employers are not liable under respondeat superior where an employee has substantially deviated from his duties. Plaintiff argues “an act of oppression, fraud or malice, by an officer director or managing agent...

Excerpt: ...2030.090 provides, “[t]he court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2030.090(b).) “If the motion for protective order is denied in whole or in part, the court may order that the party provide or permit the discovery against which protection was so...

Excerpt: ...reasonable time after the pending motions relating to venue and consolidation are heard. However, based on the request made in the moving and reply papers, it is unclear whether Defendant is seeking to postpone its discovery responses until after the Motion to Consolidate is heard in San Diego or, until this Court rules on the Motion to Transfer. Accordingly, the Court requests clarification from the parties as to the motion pending in San Diego ...

Excerpt: ...e 4 th and 5 th COAs, as follows. Defendants RFJN: The Court GRANTS Defendant's request for judicial notice of Exhibits J and K pursuant to Evidence Code section 452(d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Plaintiffs' Objection to Evidence: The Court OVERRULES Plaintiffs' Objections to Evidence, No. 1. Plaintiffs' o...

Excerpt: ...13.2, and 15.1 is MOOT. Defendant served plaintiffs with Supplemental Responses to the Form Interrogatories at issue on 8-27-19. (Declaration of Laurence C. Hall, ¶¶ 5-6; Exs. 1 and 2.) Plaintiffs' requests for monetary sanctions for each motion is DENIED as other circumstances make the imposition of sanctions unjust. (Code Civ. Proc. § 2030.300(d).) Moving Party to give notice. (3-4) PLAINTIFFS' MOTIONS TO COMPEL FURTHER RESPONSES TO REQUEST ...

Excerpt: ...judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Plaintiffs' RFJN: The Court GRANTS Plaintiffs' request for judicial notice of Item Nos. 1-5 pursuant to Evidence Code section 451(a). Plaintiffs' Objection to Evidence: The Court SUSTAINS only Objection Nos. 2 and 3 and OVERRULES Nos. 1 and 4. Defendant's Objections to Plaintiffs' Evidence: The Court SUSTAINS only Objection...

Excerpt: ...be established or there is a complete defense. (Code Civ. Proc., § 437c(a), (p)(2).) Only after a defendant meets that burden, does the burden shift to the plaintiff to produce admissible evidence showing the existence of a triable issue as to a cause of action or complete defense. (Code Civ. Proc., § 437c(p)(2); Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) In the context of medical malpractice, “[w]hen a defendant moves for summary ju...

Excerpt: ...: (1) Plaintiff was a beneficiary of the Showalter Trust; (2) despite James' giving Defendant Power of Attorney over his beneficiary rights under the Showalter Trust and assigning his beneficiary rights to Defendant, Defendant was to ensure that Plaintiff still received her share of the inheritance pursuant to the Showalter Trust; and (3) because James turned 60 before the Trust funds were dispersed, he received Plaintiff's share of inheritance u...

Excerpt: ...no v. Hirano (2007) 158 Cal.App.4th 1 applicable to the circumstances here. In Hirano, appellant failed to timely exchange expert witness information when the case was initially set for trial. (Id. at p. 5.) The court continued the trial several times, but ultimately dismissed the action for failure to prosecute. (Ibid.) The Court of Appeal reversed the judgment and on remand, a new trial date was set. (Ibid.) The trial court granted respondent's...

Excerpt: ... 1013 Does Not Apply: Code of Civil Procedure section 1013, subdivision (a), provides in pertinent part: “In case of service by mail . . . . [s]ervice is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days...

Excerpt: ...nd DENIED, in part. (2) Plaintiff's motion for an order compelling the further depositions of Piecemakers' Person Most Knowledgeable and Douglas Follette, and compelling witnesses to answer questions at deposition is GRANTED. (3) Plaintiff's motion for an order compelling the further depositions of Piecemakers' Person Most Knowledgeable and to produce documents is GRANTED. As to all three motions, the Court finds counsel for plaintiff sufficientl...

Excerpt: ... No. 2.5, the Motion is GRANTED. Defendant contends this is a dental malpractice case and any judgment will be paid out through insurance, so Defendant's private residence information is unnecessary to collect any judgment. Although it is true Defendant's residence address may not necessarily be relevant, this interrogatory is a judicially approved form and provides background information of a party. As to Form Interrogatory No. 15.1, the Motion ...

Excerpt: ...quest for monetary sanctions is DENIED. Defendant/Cross-Complainant Patricia Pisani's evidentiary objections to the Declaration of David Beavers are OVERRULED. Procedural Compliance: On 2-5-19, the Court and counsel held a discussion regarding progress made to resolve issues presented in this Motion. The parties agreed and the Court ordered that a motion may be re-filed as to any remaining issues. (See Minute Order dated 2-5-19 [ROA 386].) The Mo...

Excerpt: ...nfidential mediations materials and any documents and evidence derived from such materials, including but not limited to, the Association's Confidential Mediation Brief, Enforcement Mediation Brief and attached exhibits, which were identified and marked as Exhibit 27 to Rennert's 2018 deposition transcript, Rennert's Mediation Brief and attached exhibits, the Memorandum of Understanding between the Association and Rennert, and the transcripts of ...

Excerpt: ... the arbitration clause is unenforceable, because of the conflict of interest that existed between defendants and Dr. Howard. Plaintiff does not contend the arbitration provision itself is invalid. Therefore, the preliminary issue is to determine who decides, the arbitrator or the court, whether the engagement agreements are valid and enforceable. Jurisdiction and Arbitrability: “The issue of who should decide arbitrability turns on what the pa...

Excerpt: ...aper may not be rejected for filing on the ground it was untimely submitted for filing, the court, in its discretion, may refuse to consider a late filed paper. (California Rules of Court (“CRC”), Rule 3.1300(d).) The opposition papers were filed and served two days late. The opposition papers were due by 7-23-19, but were filed and served on 7-25-19. The trial court has broad discretion under California Rules of Court, Rule 3.1300(d) to refu...

Excerpt: ... include, but are not limited to, the following: . . [¶] (d) Failing to respond or submit to an authorized method of discovery.” Code of Civil Procedure section 2023.030, subdivision (c), provides, “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the followin...

Excerpt: ...on for Summary Adjudication is also DENIED. The Court considers this as a Motion for Summary Judgment only. To the extent the Separate Statement purports to support a motion for summary adjudication, it does not comply with California Rule of Court Rule 3.1350(b). The “issues” are not stated specifically in the Motion and then stated, “verbatim,” in the Separate Statement. This is a ground for denial of the Motion for Summary Adjudication...

Excerpt: ...term durations extending through 2020, only to terminate the Agreement without cause thereafter. Experian further misled Prancer by misrepresenting the grounds of the termination as for cause and refusing to provide Prancer with its rationale for terminating its contract to this day. (FAC, ¶ 48.) This Court previously found Experian properly terminated the Agreement under Section 2 of the STAC and Section 2 of the Consumer Services Schedule. (Se...