Excerpt: ...town Business Improvement District's ("BID") Opposition it was filed and served one day late. However, Petitioner was able to timely file and serve a substantive reply on the merits, despite the Opposition having been served one day late. Thus, the Court finds Petitioner's objections to be waived and will exercise its discretion to consider the Opposition. Petitioner requests as part of his Motion that BID be ordered to produce its BID membership...

Excerpt: ...A for breach of fiduciary duty. Thus, the demurrer to these causes of action is SUSTAINED. All of Plaintiff's Claims are Subject to MICRA and Barred by The Statute of Limitations - Overrule Defendant argues all of Plaintiff's claims are subject to MICRA and that Plaintiff is attempting to plead around the applicable 1-year statute of limitations. While the allegations arise out of dental treatment Plaintiff received, her allegations for the remai...

Excerpt: ...hrough 37. This motion was filed on 2-21-2023 and was originally on calendar for 7-18-2023. On that date, the Court ordered counsel to meet and confer in good faith and file a joint separate statement. On 8-16-2023 counsel filed their joint separate statement. However, even after a review of that document, it is unclear whether the meet and confer advanced any resolution of the disputes here. For instance, Plaintiff alleges “Defendant represent...

Excerpt: ...alsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. [Citation.]” (Id. at p. 990.) “‘A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. [Citations.]' [Citation.]” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.) How...

Excerpt: ... Breach of the Implied Covenant, on this same basis. (Demurrer: 6:14-24.) Defendant is correct in asserting there are contradictory and unclear allegations, with respect to the parties to the alleged agreement. For example, the Complaint includes allegation stating both, that Defendant Cloud 9 hired Plaintiff (¶2 of FAC) and that all Defendants, collectively, hired Plaintiff. (¶5 and ¶43 of FAC.) Similarly, the Complaint alternates between all...

Excerpt: ...(in the amount of $9,000) against Plaintiff and counsel of record. Motion to QUASH is GRANTED. No sanctions. Defendant Diane argues the broad subpoenas issued to the two banking institutions violate her privacy rights. 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 circumsta...

Excerpt: ... Both sides seek sanctions. (1) Special Interrogatories Nos. 3-6 ask Defendant to state (3) the business necessity of its requirement that Plaintiff receive a Covid-19 vaccine; (4) all reasons Defendants requires its musicians to receive a Covid-19 vaccine; (5) all evidence Defendant has that the currently available Covid-19 vaccines prevent Covid-19 infection; and (6) all evidence Defendant has that the currently available Covid-19 vaccinations ...

Excerpt: ... (collectively “Cross-Complainants”) appeal of the Judgment. General Authority for Reasonableness of Attorney Fees: In determining the amount of fees to award, a court has broad authority to determine the amount of a reasonable fee. (PLCM Group v. Drexler (2000) 22 Cal.4 th 1084, 1095.) Statutory attorney fees are ordinarily determined by the court pursuant to the “lodestar” or “touchstone” method. (The Rutter Group, Cal. Prac. Guide ...

Excerpt: ...C on behalf of Messner as they are uncertain. Code Civ. Proc. S 430.100.) Demurrer is sustained with 20 days leave to amend. (Code Civ. Proc., 5430.10(e), (f).) In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress are generally recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aw...

Excerpt: ...ng and abetting of the Complaint filed by Plaintiffs, Philips North America, LLC; Koninklijke Philips N.V; and Philips India, Ltd. (collectively "Philips"). The Court SUSTAINS, with 10 days' leave to amend, the demurrer as to the First and Second COAs. The Court OVERRULES the demurrer as to the Third COA. First and Second COAS — Fraudulent Transfer and Constructive Fraudulent Transfer Civil Code section 3439, et seq. is known as the Uniform Voi...

Excerpt: ...blished or there is a complete defense. (Code Civ. Proc., 437c(a), 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. (ld.; Hawkins v. Wilton (2006) 144 cal.App.4th 936, 940.) In a medical malpractice action, when a defendant moves for summary judgment and supports his motion with expert declarations th...

Excerpt: ...NIED. Code of Civil Procedure section 473(b) states, in relevant part: The court may, upon any terms as be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise t...

Excerpt: ...t retain counsel. "Cu]nder a long- standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney." (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) "It must be represented by licensed counsel in proceedings before courts of re...

Excerpt: ...a large class of persons has received a significant benefit, (3) the burden of private enforcement is disproportionate to the litigant's personal interest, and (4) it is unfair to make a successful plaintiff pay the fees out of any recovery.” (Council for Education & Research on Toxics v. Starbucks Corp. (2022) 84 Cal.App.5th 879, 902, rehg denied (Nov. 10, 2022), review denied (Feb. 15, 2023).) “‘While section 1021.5 does not permit awards...

Excerpt: ...king the deposition of Myers at this time. Thus, the Motion as to Myers is MOOT. Under the apex deposition rule, a party is prohibited from deposing a high-ranking official unless the deponent has unique or superior personal knowledge of relevant information. (Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282, 1287.) “An exception to the rule exists only when the official has direct personal factual information pertaining to ...

Excerpt: ...filing a notice of appeal under CRC, rules 8.104, 8.108 in an unlimited civil case or under CRC, rules 8.822 and 8.823 in a limited civil case. (CRC, rule 3.1702(b)(1); see P R Burke Corp. v. Victor Valley Wastewater Reclamation Auth. (2002) 98 Cal.App.4th 1047, 1052 [motion “almost always” filed after entry of judgment because until then “there is technically no prevailing party” and “parties may still incur additional fees.”].) The ...

Excerpt: ...was on his meal break and driving to purchase himself food at the time of the accident. Because his trip was for a purely personal purpose, Defendant contends Sosa substantially deviated from his employment duties such that the incidental benefit exception to the going and coming rule does not apply. Plaintiffs argue there is a genuine dispute as to whether Sosa was delivering pizzas at the time of the accident. They also argue that that Sosa's t...

Excerpt: ...fense to the plaintiff's cause of action, e.g., it is barred by the statute of limitations. (Code Civ. Proc., § 437c(p)(2); Selvidge v. Tang (2018) 20 Cal.App.5th 1279, 1283.) If the defendant makes a sufficient showing, the burden shifts to the plaintiff to produce sufficient evidence to raise a triable issue of fact as to the defense asserted. (Code Civ. Proc., § 437c(p)(2).) “In an action for injury or death against a health care provider ...

Excerpt: ...duled start time, causing Plaintiff to be injured due to his inability to properly warm up. “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c(a)(1).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial not...

Excerpt: ...vides, in relevant part, that an “injunction may be granted” when “it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.” (Emphasis added.) Here, Plaintiff filed a Complaint, but not a Verified Complaint. Additionally, “A superior court must evaluate...

Excerpt: ...civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., § 36, subd. (a) [emphasis added].) Code of Civil Procedure section 36....

Excerpt: ... supplemental brief 9 court days prior to the continued hearing date. (ROA 129.) No supplemental brief has been filed. Thus, the Court will now rule on the Motion. Whether a settlement is within the “good faith ballpark” is to be evaluated on the basis of information available at the time of settlement under the following factors:  the amount paid in settlement;  a rough approximation of plaintiff's total recovery and the settlor's prop...

Excerpt: ...tice of Bankruptcy Case Filing, indicating a Chapter 7 bankruptcy case was entered on July 20, 2023 by Irina R. Morris, and was assigned case number 8:23-bk-11469. (See ROA 557.) At the time of the Notice of Stay was filed, the Association had this pending Motion for Attorney Fees, and Plaintiff had a pending Motion to Strike and/or Tax Costs. No proof of service indicating service of the Notice of Stay of Proceedings on the all parties to the ac...

Excerpt: ... $2,460 in total sanctions for all four motions. The Motions are GRANTED. I. Defense Counsel Failed to Sign the Oppositions Code of Civil Procedure section 128.7 requires that “[e]very pleading, petition, written notice of motion, or other similar paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party.” (Code Civ. Proc., § 12...

Excerpt: ...y deficient. Pursuant to Code of Civil Procedure section 1987.1(a), “[i]f 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 ...

Excerpt: ....). At that time, no sanctions were requested and none were awarded. A notice of ruling was filed on March 3, 2023. (ROA 71.) The parties appear to agree that the deadline for compliance was April 3, 2023. Plaintiff filed the instant motion on April 27, 2023, contending that Defendant had not complied with this court's order. Plaintiff asks the court to order compliance within ten days and to impose a monetary sanction of $500 per day that Defend...

Excerpt: ...onger at issue, and Plaintiff will agree to withdraw the motion as to these discovery requests without prejudice as to seeking further relief following receipt of Defendant's supplemental responses. (See ROA 104, Joint Statement, 2:24-3:4.) Based on the foregoing, the Court VACATES the motion to compel as to Plaintiff's First Set of Special Interrogatories. (2) Plaintiff, Katrina Gubbels, moves for an order compelling Defendant, Ford Motor Compan...

Excerpt: ...rges, and James Bohm, Bohm Wildish & Matsen, LLP in the amount of $250.00 each (Code Civ. Proc., §2023.050 (a).) Plaintiff is asking for sanctions in the amount of $96.60 from Defendants Vincent R. Tritz and Gayle Welk Tritz to cover the filing cost, mailing expenses for this Motion. Pursuant to Code of Civil Procedure section 1985.3(g), “Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil a...

Excerpt: ...�overruled. Objection No. 22—sustained, hearsay. Issue Nos. 1-6 - Second Cause of Action for Retaliation Defendant argues Plaintiff's second cause of action for retaliation fails because Plaintiff did not engage in a protected activity, Plaintiff was not subjected to any adverse employment action, and Labor Code section 1102.5 does not apply because Plaintiff was not asked to undertake any conduct that would violate any rules or regulations and...

Excerpt: ...third-party beneficiary and under the doctrine of equitable estoppel. Tustin Hyundai has filed a motion for joinder. Joinder is appropriate where the joinder seeks affirmative relief on behalf of the joining party and joins in the arguments made by the motion being joined. (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661.) The motion for joinder is in proper form and presents argument in support of the relief sought. Thus, the motio...

Excerpt: ...ersonal service on 10-24-22. (ROA 37.) No opposition has been filed. 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 oppose the County's demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal. Accordingly, w e dee m p la i n t if f s t o ha v e a bandoned t...

Excerpt: ...equired specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) With respect to interrogatories, the burden of showing good cause does not exist. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the in...

Excerpt: ...he definition of revenue as “income from any and all sources,” as set forth in Black's Law Dictionary (11th ed. 2019); 2. The definition of net profit as “revenue less the cost of expenses,” as set forth in Black's Law Dictionary (11th ed. 2019); 3. The definition of loan as “a grant of something for temporary use,” as set forth in Black's Law Dictionary (11th ed. 2019); and 4. The proposition that unrealized gain is not treated as re...

Excerpt: ...ce fails as a matter of law because public entities are not "liable for any injury caused by the act or omission of the public entity or a public employee unless such liability is imposed by statute." (Strong v. State (2011) 201 Cal.App.4th 1439, 1448; Govt. Code, S 815, subd. (a). ) Here, Plaintiff's first cause of action is for general negligence which is a common law claim and therefore impermissible against public entities, such as Defendant ...

Excerpt: ... moving and opposing briefs are over the applicable page limits. Plaintiff objects to Defendants' overlong memorandum. However, Plaintiff was able to file and serve a timely and fulsome opposition brief, which is also itself overlong. The Court therefore finds Plaintiff's objections to be waived. In the interests of justice, the Court will consider all the arguments raised by the parties but admonishes counsel that all rules and statutes regardin...

Excerpt: ...TG"), as well as add an additional basis for JOA's causes of action for express and contractual indemnity and declaratory relief against CTG (a Painting Contract). CTG opposes the motion on the grounds that JOA admits that the facts giving rise to the proposed amendment (a 10-25-22 denial of coverage letter) were known for six months before JOA filed this motion, JOA has provided no explanation for the delay, and the trial date of 8-28-23 is only...

Excerpt: ... parties' financial condition unless and until liability for punitive damages is established pursuant to Civil Code section 3295(d). For the reasons stated below, the Motion is GRANTED in part and DENIED in part. On a motion to bifurcate, the Court may "order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues," where separate t...

Excerpt: ...n the time for filing a notice of appeal under CRC, rules 8.104, 8.108 in an unlimited civil case or under CRC, rules 8.822 and 8.823 in a limited civil case. (CRC, rule see P R Burke Corp. v. Victor Valley Wastewater Reclamation Auth. (2002) 98 Cal.App.4th 1047, 1052 [motion "almost always" filed after entry of judgment because until then "there is technically no prevailing party" and "parties may still incur additional fees. "J.) The normal tim...

Excerpt: ...nt did not oppose the Motions to Compel Further Form and Special Interrogatories. Code of Civil Procedure sections 2030.300 and 2031.310 allow a party to file a motion compelling further answers to interrogatories and requests for production of documents, if it finds that the responses are inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. (Code Civ. Proc., SS 2030.300 and 2031.310.) The motion to...

Excerpt: ...s. The Court rules as follows: Issue No. 1: Plaintiff's cause of action for retaliation in violation of the California Fair Employment and Housing Act ("FEHA") fails as a matter of law because Plaintiff did not engage in any protected activity, and there is no causal link between any protected activity by Plaintiff and Plaintiff's termination, Defendant had legitimate, non-discriminatory reasons for any alleged adverse employment actions, and suc...

Excerpt: ...r employers of 26 or more employees was $12.00 per hour; and 2. In 2020 the state minimum wage in California for employers of 26 or more employees was $13.00 per hour. The request for judicial notice is GRANTED under Evidence Code section 452(h). Issue Nos. 3, 5-7 - Second Cause of Action for Unpaid Overtime, Fourth Cause of Action for Itemized Wage Statement Violations, Fifth Cause of Action for Waiting Time Penalties, Sixth Cause of Action for ...

Excerpt: ...e damages including paragraph 47 (page 11:23-25), paragraph 57 (page 15:5-6), paragraph 65 (page 17:1-3), paragraph 74 (page 17:20-22), and Prayer for Judgment at page 18:3. The court may strike out " ..any irrelevant, false, or improper matter inserted in any pleading" or "all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (Code Civ. Proc. 436(a); Quiroz v. Seven...

Excerpt: ... any part of any pleading not drawn or filed on conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., S 436(b).) On 12-20-21, the Court signed the order on the parties' Joint Stipulation granting Plaintiffs leave to file a fourth amended complaint "to address only the Burtin Defendants' challenges to the pleading[.]" (ROA 757.) The fourth amended complaint the parties stipulated to filing was circulated...

Excerpt: ...y move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) that the statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. Section 2031.310(b)(1) requires the moving papers to set forth specific facts showing good cause just...

Excerpt: ... (1, 3) Cross-Defendants LCAviation SA, CSAviation SARL, and Daniel Colin filed a (1) Demurrer to the Cross-complaint and (3) Motion to Strike the Cross-complaint. Both motions present one argument: that Cross-complainant Skybus Jet Cargo, Inc. cannot maintain or defend a lawsuit in California because its corporate status has been suspended and/or forfeited and it therefore lacks the capacity to sue pursuant to Code of Civil Procedure section 430...

Excerpt: ...ction 2031.310(a) provides that a party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) that the statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; and (3) an objection in the response is without merit or is too general. Section 2031.310(b)(1) requires the moving papers to set fo...

Excerpt: ...t in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered." (Code Civ. Proc., 5473.5(a).) In this instance, Judgment was entered less than 2-years ago on February 2, 2022 (ROA No. 62); however, Plaintiff served Notice of Entry of Judgment on Defendant on February 8, 2022. (ROA No....

Excerpt: ...identiary Objections Declaration of June Cowger: Objections 1 — 10 are OVERRULED. Declaration of Georgianna Gallegos: Objections 1 — 5 are OVERRULED. Declaration of Andrew Kott: Objection 1 are OVERRULED. Declaration of John Vaughn: Objections 1 — 5 are OVERRULED. 1. ISSUE 1 - Plaintiff's discrimination claims fail as a matter of law because he cannot establish that Defendants had a discriminatory motive for terminating his employment. In r...

Excerpt: ...a declaration stating that the moving party contacted the deponent to inquire about the nonappearance. (Code Civ. Proc. S Code of Civil Procedure section 2016.040 provides that meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." Here, on December 27, 2022, two days prior to the date for which the deposition was scheduled,...

Excerpt: ...mplaint. Cross-Defendant contends the 2nd cause of action for equal protection is "entirely redundant" of the ISt cause of action for breach of fiduciary duty and thus fails to state facts sufficient to state a cause of action. Cross-Defendant contends that the 1st cause of action for breach of fiduciary duty alleges that ASSOCIATION failed to consider their application for the stairway in "good faith, with due care and in accordance with law and...

Excerpt: .... Objections to Declaration of Paul McBride Objection Nos. 1- 45 - OVERRULED. As an initial matter, the Court notes that Defendants have failed to file a separate statement. Per section 437c(b)(3), an opposition "shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed." "Failure to comply with...

Excerpt: ...rued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply." (Code Civ. Proc., S 366.2, subd. (a). ) "An action is defined as 'an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a...

Excerpt: ...tors: (1) the likelihood that the moving party will prevail on the merits, and (2) whether the harm the moving party will likely suffer if the motion is denied outweighs the harm the opposing party is likely to suffer if the motion is granted. (Ketchens v. Reiner (1987) 194 cal.App.3d 470, 474.) "These two showings operate on a sliding scale: '[T Jhe more likely it is that [the party seeking the injunction] will ultimately prevail, the less sever...

Excerpt: ...s true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) "[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory." (Durell v. Sharp Healthcare (2010) 183 cal.App.4th 1350, 1358.) The allegations in the Complaint are uncertain as to who made the alleged offer and who accepted the alleged offer to support the existence of a contract. In addition, the alle...

Excerpt: ...ed Petition for Writ of Mandate is DENIED. In this action, Plaintiff seeks a writ of mandate to compel Respondent to disclose documents withheld in response to her California Public Records Act (CPRA) request. The CPRA must "be broadly construed if it furthers the people's right of access and narrowly construed if it limits the right of access." (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750-751.) "All public records are subject to ...

Excerpt: ...Court finds that Defendant is not entitled to enforce the identified Retail Sales Installment Contract pursuant to equitable estoppel and, consequently, Defendant failed to meet its burden to establish an applicable arbitration agreement. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement, before arbitration can be compelled. (See g U.S.C. 52 and code Civ. Proc...

Excerpt: ... amount of $4,000 pursuant to Code of Civil Procedure section 128.5. Code of Civil Procedure section 128.5 states: (a) A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings ...

Excerpt: ...Complaint and Proof of Service that was served on Defendant (the "Served SAC"), but declines to take judicial notice of the truth of statements therein. Merits "A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint . . are taken. Unless it does so, it may be disregarded." (Code Civ. Proc. 430.60.) In addition, "Ce]ach ground of demurrer must be in a separate paragraph and must state whether it applies t...

Excerpt: ...; and Special Interrogatories, Set One. For the reasons set forth below, the Motions are GRANTED in part and DENIED in part. Inspection Demands TF has supplemented its responses to Nos. 1-5, 7-11, and 14-16. The Motion as to these demands is MOOT. The only remaining demands at issue are Nos. 6 and 13. TMI has supplemented its responses to Nos. 1-5 and 7-11. The Motion as to these demands is MOOT. The only remaining demands as to TMI at issue are ...

Excerpt: ...ims are barred based on the Assumption of Risk Agreement executed by Plaintiff and Mr. Shoar as Plaintiff waived and released any claims against it. “To be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party's own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly...

Excerpt: ...vided, however, that failure on the part of any person filing any demurrer to prosecute the same may be construed as a waiver of such demurrer, except as otherwise provided in Section 430.80 of this code.” Code of Civil Procedure section 592 states, in relevant part: “In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or...

Excerpt: ... the meet and confer requirement prior to filing the Demurrer. The hearing was continued from January 24, 2023 to allow the parties to properly meet and confer. The Court notes that, per the Case Management Statement filed on March 27, 2023, the parties met and conferred at length on March 20. Thus, the Court finds that the meet and confer requirement has been satisfied. Negligence The elements of a negligence cause of action are a legal duty owe...

Excerpt: ...s an initial matter, the Court notes Plaintiffs' Opposition was not served on Moving Defendant. The proof of service attached to the Opposition shows service was made only on Defendant Chris Guerra. Thus, the Court has not considered the Opposition for purposes of this ruling. The Complaint alleges Defendant Marina Ponce owned and/or managed the premises and that Defendants Michael Guerra, Chris Guerra, and Moving Defendant owned, managed or acte...

Excerpt: ... and for sanctions of $4375 against defendant and its counsel of record, Michael J. Sexton. (ROA 66) Plaintiff Cynthia Brammer moves to compel further deposition testimony from defendant's PMQ in response to Testimonial Categories 6, 7, 8, 12, 13, 14, 15, 17, 1 g and 20, and for sanctions in the amount of $4375 against defendant and its counsel, Michael J. Sexton, for the expenses of bringing this motion. (ROA 82) Plaintiff Cynthia Brammer moves ...

Excerpt: ...ment between the parties, Plaintiff is entitled to attorney fees. (Civ. Code, S 1794, subd. (d); ROA 77, Declaration of Soheyl Tahsildoost, II 4, Ex. C, "Settlement Agreement and Release," page 2 of 7 [emphasis added].) The August 18, 2022 settlement agreement between the parties states: "The parties agree that Plaintiff is the prevailing party, for purposes of a motion for attorney's fees, and Defendant shall pay Plaintiff's attorney's fees, cos...

Excerpt: ...s. The Court rules as follows: Issue No. 1: Plaintiff's cause of action for retaliation in violation of the California Fair Employment and Housing Act ("FEHA") fails as a matter of law because Plaintiff did not engage in any protected activity, and there is no causal link between any protected activity by Plaintiff and Plaintiff's termination, Defendant had legitimate, non-discriminatory reasons for any alleged adverse employment actions, and suc...

Excerpt: ...al of Defendant Estate of Michael Lutton (the "Lutton Estate") as a Defendant; (2) the replacement of Defendant Ronald Soderling ("Mr. Soderling") as a party with Mr. Soderling's Estate (the "Soderling Estate"); (3) the addition of The Emond-Soderling Family Foundation (the "Soderling Foundation") as a defendant; (4) the addition of Mr. Daniel Winton ("Mr. Winton") as a defendant; (5) the addition of Aaron McKown ("Mr. McKown") as a defendant; (6...

Excerpt: ...equirement. A party filing a demurrer is required to meet and confer in person or by telephone with the party who filed the pleading subject to the demurrer and file a declaration stating how the meet and confer took place, pursuant to Code of Civil Procedure Section 430.41. Defense counsel talked with Plaintiffs' counsel about the issues raised in this Demurrer on February 22, 2023. (Supplemental Declaration of J. John Oh, 2-3.) "A cause of acti...

Excerpt: ...ing, using, concealing, encumbering, pledging, conveying, hypothecating, transferring, distributing, or otherwise disposing of any funds or proceeds or any right, title, or interest therein from or of (a) any sale, conveyance, or transfer of any right, title, or interest in or to 570 Glenneyre, including any sale conducted in connection with the enforcement or execution of any judgment against any of the Defendants, (b) any loan or financing secu...

Excerpt: ...appear for the court-ordered depositions scheduled for August 2, and August 3, 2022, and fees and costs associated with drafting the instant motion. Code of Civil Procedure section 2025.440 states, in relevant part: "If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240. (Code Civ. Proc. 2025.440...

Excerpt: ...djudication is sought, as required by CRC 3.1350(b). Rather, the notice confusingly indicates that Defendants seek summary judgment, or in the alternative, summary adjudication under Code of Civil Procedure section 437c “on the ground that . . . Plaintiff . . . failed to state facts sufficient to constitute a cause which relief may be granted (Code of Civil Procedure §430.10(e)). This action has no merit and there is no triable issue of materi...

Excerpt: ...erits to the Opposition. The Court finds any objection to the late filing has been waived and will exercise its discretion to consider the Opposition. Code of Civil Procedure section 2033.280(b) provides that, when a party fails to serve a timely response to requests for admission, “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as wel...

Excerpt: ...ts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd. (c)(1)(A).) In the Motion, Plaintiff asks the court to make two findings on the pleadings: (1) the height restriction does not run with the land and (2) the height restriction is not enforceable as an equitable servitude. Plaintiff cites to Civil Code section 1462 for its contention that the height restriction does not run with the land because it is a burd...

Excerpt: ... Jones (“Jones”) and 150 Newport Center Drive LLC (“150 NCD”) (collectively, “Plaintiffs”), or alternatively, for summary adjudication, as to the 1 st, 2 nd, 3 rd, 4 th, 5 th, 6 th, 7 th, and 8 th causes of action alleged in the First Amended Complaint (“FAC”), as well as summary adjudication on behalf of Mr. Soderling, as an individual, as to Plaintiffs' claims for punitive damages. The motion is GRANTED, in part; DENIED, in part...

Excerpt: ... the amount of $1,100.00 pursuant to Code of Civil Procedure section 664.6. Code of Civil Procedure section 664.6(a) states: “If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain...

Excerpt: ...ssary to the conduct of the litigation rather than merely convenient or beneficial to its preparation and shall be reasonable in amount. (Id. § 1033.5(c)(2)-(3).) Items not mentioned in section 1033.5 and items assessed upon application may be allowed or denied in the court's discretion. (Id. § 1033.5(c)(4).) “If the items appear to be proper charges the verified memorandum is prima facie evidence that the costs, expenses and services therein...

Excerpt: ...Design Sciences Corp. v. Superior Court (2004) 121 Cal.App.4 th 1100, 1106.) Under Code of Civil Procedure section 483.010, attachment may be issued only if the claim sued upon is: (1) a claim for money based on a contract (express or implied); (2) the claim is for a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney's fees; (3) the claim is not secured by real property (or was originally so secure...

Excerpt: ... First Amended Petition for Writ of Mandate is DENIED. In this action, Plaintiff seeks a writ of mandate to compel Respondent to disclose documents withheld in response to her California Public Records Act (CPRA) request. The CPRA must “be broadly construed if it furthers the people's right of access and narrowly construed if it limits the right of access.” (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 750-751.) “All public recor...

Excerpt: ...rd Decl. ¶¶3-4, 7.) The request does not satisfy the requirements of Code of Civil Procedure section 437c(h). No explanation has been provided as to how the identification of the documents is essential to opposing the motion. Further, no timeline has been given as to when the discovery is expected; nor has counsel described any specific steps or procedures he intends to use to obtain the discovery. The court also preliminarily notes that Defend...

Excerpt: ...Design Sciences Corp. v. Superior Court (2004) 121 Cal.App.4 th 1100, 1106.) Under Code of Civil Procedure section 483.010, attachment may be issued only if the claim sued upon is: (1) a claim for money based on a contract (express or implied); (2) the claim is for a fixed or readily ascertainable amount not less than $500, exclusive of costs, interest and attorney's fees; (3) the claim is not secured by real property (or was originally so secure...

Excerpt: ...omplaint on the grounds a valid agreement to arbitrate exists between them and there are no defenses to its enforcement. Whether the parties delegated the issue of arbitration to the arbitrator? Defendants contend the Court lacks jurisdiction to decide any issues concerning arbitration including the issue of arbitrability because the Employment Arbitration Policy (“Arbitration Agreement”) includes an express delegation clause. (See Arbitratio...

Excerpt: ...cted activity under the statute and Plaintiff cannot demonstrate a probability of prevailing. Code of Civil Procedure section 425.16 provides in relevant part: “A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the Court de...

Excerpt: ... subdivision (a)(1) provides in pertinent part that: “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” “A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the ca...

Excerpt: ...otion is GRANTED but REDUCED. Civil Code section 1717: If neither party achieves a complete victory on all the contract claims, it is within the trial court's discretion to determine which party “prevailed” on the contract. (Scott Co. of Calif. v. Blount, Inc., (1999) 20 Cal.4th 1103, 1109; De La Cuesta v. Benham (2011) 193 Cal.App.4th 1287, 1294; Jackson v. Homeowners Ass'n Monte Vista Estates-East (2001) 93 Cal.App,4th 773, 786-789] In deci...

Excerpt: ...son for deposition on December 29, 2022. Accordingly, the Court DENIES the motion to compel an in-person deposition of Plaintiff as MOOT. The issue of sanctions remains. Defendant seeks monetary sanctions in the amount of $11,885 pursuant to Code of Civil Procedure sections 2025.450, 2023.030, and 2023.010. Plaintiff contends Plaintiff acted with substantial justification and the amount of sanctions sought is exorbitant and excessive. “The cour...

Excerpt: ...mount of $55,169; a multiplier of 0.3 for a fee enhancement of $16,550.70, for a total amount of $71,719.70 in fees. Entitlement to Fees Civil Code section 1794, provides, in relevant part: “[i]f the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determine...

Excerpt: ...failed to report to meeting”; that “male employees displayed insubordination and disrespect for Knott because she is a woman”; refused to take instructions from Plaintiff; made “vocal and aggressive communications in public forms (e.g., Slack), about Knott, her work, and her job duties”; male employees including BAINE “argued with Knott, set demands, and disregarded her opinions and instructions”; BAINE criticized Plaintiff's work a...

Excerpt: ...l, LLC's (“Engaged”) filed a Notice of Joinder in Motion to Dismiss. The forum selection clause at issue is mandatory and Plaintiff, as the party opposing the enforcement of the forum selection clause, has not met its burden of proof to show that enforcement would be unfair or unreasonable. (See Korman v. Princess Cruise Lines, Ltd. (2019) 32 Cal.App.5th 215, 216; CQL Original Prod., Inc. v. Nat'l Hockey League Players' Assn. (1995) 39 Cal.Ap...

Excerpt: ...ts to the conclusion that a “worker” is an individual person and does not extend to an entity. (See e.g., Waithaka v. Amazon.com, Inc. (1st Cir. 2020) 966 F.3d 10, 20, cert. denied (2021) 141 S.Ct. 2794, reh'g denied (2021) 141 S.Ct. 2886 [explaining the categories of “people” who are exempt under FAA]; Lenz v. Yellow Transp., Inc. (8th Cir. 2005) 431 F.3d 348, 352 [establishing a factor test to determine whether an employee is so closely...

Excerpt: ...ected activity]; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66–67 If the defendant carries its burden, the plaintiff must then demonstrate the claims have at least “minimal merit.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89; Baral v. Schnitt (2016) 1 Cal.5th 376, 384 Further, under Baral, where the relief is sought on both protected and unprotected spe...

Excerpt: ...t cause of action or defense. [Citations.]” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 926 (Caloroso).) “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “It is well established in California that although a store owner is not an insurer of the safet...

Excerpt: ...i, ¶ 4.) Though this effort does not satisfy the meet and confer requirements set forth in the Code of Civil Procedure, the Court will exercise its discretion to consider the merits of the Demurrer, as Defendant's counsel attempted to meet and confer and those attempts were ignored. Merits Defendant argues the sole cause of action for Fraudulent Transfer under the Uniform Voidable Transactions Act fails because Plaintiff does not allege Defendan...

Excerpt: ...e or order of court.” (Code Civ. Proc, § 436.) Furthermore, as with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records). (Code Civ. Proc, § 437.) Punitive Damages: MP seeks to strike the punitive damages allegations from the FAXC. A claim for punitive damages must be supported by specific factual allega...

Excerpt: ...tion on January 26, 2022. (ROA 93.) The Court notes Plaintiff filed a second Opposition, as well as Objections to Evidence, on November 2, 2022. Not only are Plaintiff's filings untimely, due to the November 11 holiday, but the Court did not grant Plaintiff leave to file any new opposition papers to the Motion. Thus, the Court will not consider the second Opposition or Objections to Evidence. Repeated Litigation under CCP § 391(b)(2): A litigant...

Excerpt: ...both the Demurrer and Motion to Strike. Thus, any objection by Pfizer has been effectively waived and Pfizer has not been prejudiced. Request for Judicial Notice: Pfizer requests judicial notice of the following: (1) The Inflectra label and medication guide in place since April 2016; and (2) The FDA's website regarding Tumor Necrosis Factor blockers. The Request for Judicial Notice as to Exhibit 2 (the FDA's website regarding Tumor Necrosis Facto...

Excerpt: ...and confer as required by Code of Civil Procedure section 430.41. (ROA # 258.) While the demurring parties filed a proof of service as required by the September 27, 2022 Minute Order, demurring parties failed to file a supplemental declaration regarding their further meet and confer efforts. Therefore, the demurring parties failed to follow the court's order. The court rules as follows on the Demurrer to the First Amended Complaint: • The Court...

Excerpt: ...of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 657.) Defendants both failed to timely oppose the Motion to Vacate. Their failure to oppose the motion may be treated as an abandonment of any opposition to the issues raised in the moving pape...

Excerpt: ...SA claims the parties intended to pursue a joint venture together to acquire and develop two or more gold mines located in Inyo County, California. (FAC, ¶ 19.) In exchange for BSA's expertise and labor pursuant to the joint venture, Hagestad agreed BSA would receive a percentage of ownership of the joint venture's gold mines and profits, including a 30 percent interest in both the Keystone and Radcliffe gold mines and a 15 percent carried inter...

Excerpt: ...on of public property. 4. Plaintiffs cannot establish the elements to support their negligence claim. 5. Plaintiffs cannot establish the elements to support a violation of the California Public Records Act (Government Code Section 6250, et seq.) Motion is DENIED in its entirety. Initially, the Court notes a staggering amount of documents were filed as to this motion. (3,450 pages). Each Plaintiff (Bardales and Kneeshaw) has filed their own opposi...

Excerpt: ...ble issues: (1) Whether an equitable servitude exists over Defendant Garruba's property that prohibits structures and vegetation over 17 feet high, and, if so, whether Plaintiff Buck can enforce the equitable servitude; and (2) Whether Plaintiff Buck can enforce a height restriction condition of approval imposed by the City of San Clemente on the Broadmoor project, including homes on Calle Delicada. Plaintiff cites Code of Civil Procedure section...