Excerpt: ... February 15, 2022, Defendant resided at 24 Pelican Crest Drive in Newport Beach.  Defendant was married to, and resided with, James Bergener (“James”) until July 2021.  In July 2021, James abruptly and without warning, moved out of the house and filed for divorce. He moved to Puerto Rico.  On information and belief, James used a mail forwarding service to divert some of the mail from the house to his office or his new residence in P...

Excerpt: ...s “concerning any internal analysis or investigation by [Defendant] or on [Defendant's] behalf regarding the TRANSMISSION DEFECT in vehicles of the same year, make, and model as the SUBJECT VEHICLE.” Defendant objected and stated no documents would be produced. Plaintiffs contend these documents, including any responsive technical service bulletins (“TSBs”), will show Defendant was aware of a transmission defect, investigated the defect, ...

Excerpt: ...Complaint filed by Plaintiffs Kimberly Moffatt Jones and 150 NCD (collectively, “Plaintiffs). NCAA's Request for Judicial Notice: The Court GRANTS NCAA's Request for Judicial Notice as to Exhibit A pursuant to Evidence Code section 452(d), and as to Exhibits B through D pursuant to Evidence Code section 452(h), but declines to take notice of the truth of the statements stated therein. Plaintiffs' Request for Judicial Notice: The Court GRANTS Pl...

Excerpt: ...ntiff brought the sewer pipe issue to the attention of Defendant's agent, Cardinal, Cardinal directed Plaintiff to remediate the sewer pipe issue herself, and then submit any resulting invoices to the HOA through its agent Cardinal for reimbursement. 39. Plaintiff remediated the sewer pipe issue by hiring a competent third party. Plaintiff paid third party in full for the invoices it submitted to Plaintiff. Plaintiff then forwarded the invoices t...

Excerpt: ...motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected...” Here, Defendant served the Motion on Plaintiff's COUNSEL on May 27, 2022, but Defendant also filed the Motion on May 27, 2022. (See Papefthimiou Decl., ¶ 19.) Defendant contends he complied with section 128.7 because the hearing date on the Motion – September 27, 2022 ...

Excerpt: ...g an informal resolution. (Ibid.) In exercising its discretion to grant or deny a motion, the Court should take into consideration any matter relevant to the leave requested, including the following factors: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery mo...

Excerpt: ... of the Subcontractor Agreement states: The SUBCONTRACTOR shall provide all labor, materials, supplies, tools, implements, equipment, scaffolding, fees, etc., necessary to perform and complete, in strict accordance with the plans and specifications above referred to, the following portion of the aforementioned original contract, including all work incident thereto . . .” Paragraph 18 of the Subcontractor Agreements states: The SUBCONTRACTOR sha...

Excerpt: ...re section 435.5. The Court will exercise its discretion to consider the merits of the Motion but admonishes counsel that future failure to comply with all applicable rules and statutes may result in the denial of a motion or taking the motion off calendar, where appropriate. Civil Code section 3294, subdivision (a) permits the recovery of punitive damages upon a clear and convincing showing that a defendant is guilty of oppression, fraud or mali...

Excerpt: ...reply papers, no later than nine (9) court days before the continued hearing date. Defendants may file a supplemental reply in response no later than five (5) court days before the continued hearing date. All supplemental briefs to be no more than five (5) pages.” (ROA 170.) The Court notes Plaintiff's supplemental opposition was filed and served one day late, but no objection is raised on this basis. (ROA 199.) Separately, Plaintiff's suppleme...

Excerpt: ...to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action.” (Edwards v. Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 736.) “The requi...

Excerpt: ...) resulting damages.” (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 212, as modified (Aug. 24, 2011).) Here, each element of a civil conspiracy is alleged. Plaintiff alleges Payne conspired with Green and others to “carry out the vicious, unprovoked attack” on Plaintiff. (TAC, ¶ 44.) Plaintiff also alleges Payne was “aware that each of them planned and agreed to follow, stalk, attack, falsely imprison, and videotape t...

Excerpt: ...§§ 2016.040, 2030.090(a), 2031.060(a), 2033.080(a).) Here, Plaintiff has failed to establish that Plaintiff or her counsel ever expressed any concerns about COVID-19 prior to the motion being filed. Nowhere in the meet and confer emails attached to the Motion demonstrate any attempt to meet and confer on this issue. Because Plaintiff failed to meet and confer prior to filing this Motion, the Motion is denied. Even if Plaintiff had sufficiently ...

Excerpt: ... arbitration award. Code of Civil Procedure §1285.4 A petition under this chapter shall: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement. (b) Set forth the names of the arbitrators. (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any. Code of Civil Procedure §1287.4 If an award is confirmed, judg...

Excerpt: ...not contend there is no basis for the exercise of jurisdiction over it. The Court previously granted CHIPMAN and TIERNEY's request for protective order and stated that any matters concerning “the general corporate affairs, finances and any other proprietary business information, and internal communications of MADISON, CHARTWELL, and COAST TO COAST” are not to be inquired into. (See 8-9-22 M.O.) The Court also considered and rejected Plaintiff...

Excerpt: ... or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Application for an order for relief “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.) The law strongly favors an exercise of discretion in favor of granting relief so that matters can be heard on their merits. (Shapiro v. Clark (2008) 164 Cal.App.4th 112...

Excerpt: ... Does not Constitute a Dangerous Condition As a Matter of Law. Defendants are entitled to summary adjudication on the first and second causes of action related to the purported trip and fall incident because any alleged defect is trivial, minor and insignificant. ISSUE 2: Essex Had No Duty to Warn Plaintiff of an Open and Obvious Condition on the Premises. Defendants are entitled to summary adjudication on the first and second causes of action re...

Excerpt: ...nt to contract, by way of the Settlement Agreement entered between the parties, and pursuant to code, i.e., California Labor Code sections 226(e)(1), 218.5, and 1194, which allows the prevailing employee to recover attorney fees. Plaintiffs seek $165,000 in attorney fees based upon the cap agreed upon by the parties, even though the actual fees incurred are in excess of $375,000. Defendants contend the Settlement Agreement provides that for the p...

Excerpt: ...equate value, costs of repair and replacement of the defective product or consequent loss of profits— without any claim of personal injury or damages to other property.... [Citation.] [Citation.] Simply stated, the economic loss rule provides: [W]here a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses. Thi...

Excerpt: ... plaintiff's Opposition. Procedural Issues: Shift Human filed a 10-page notice seeking summary judgment, but only identified 50 issues it wishes to have summarily adjudicated. These include assertions that a prima facie case cannot be made or that there is no material fact in dispute. It must be assumed that if one of the issues was not adjudicated in Shift Human's favor, summary judgment would be denied. Suffice it to say that the way this Motio...

Excerpt: ...atories and Requests for Production of Documents (“Discovery”) until after they receive Plaintiff's substantive responses to Defendants' written discovery. In the alternative, they seek a protective order stating they do not have to answer the Discovery until Plaintiff provides Defendants with specific details of the alleged incident and specific information as to any connection to Defendants' property. Code of Civil Procedure section 2030.09...

Excerpt: ...nd side of the page, the page numbers where those unnamed causes of action can be located. However, in the body of the SAC, these “causes of action” are not named, but rather, Plaintiff states the “nature” of the claim and combines several causes of action together. Furthermore, the Court takes Judicial Notice of Defendant's Ex. 1 which is this Court's March 8, 2022 minute order which specifically advised Plaintiff: “Plaintiff will be a...

Excerpt: ... (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582 (Kidron).) “[A] civil conspiracy does not give rise to a cause of action unless an independent civil wrong has been committed. The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th ...

Excerpt: ...its entirety. Deficiencies in Notice of Motion To move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, Rule 3.1350 (b).) A notice of motion must state the “grounds upon which it will be made.” (Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498 [citing Code Civ. Proc. § 1010] (“Homestead”).) The...

Excerpt: ...) from: trespassing and/or entering into and onto the Arevalo Property; directing any lights or lighting whatsoever towards the Arevalo Property; playing any music and/or other noises directed towards the Arevalo Property; installing, operating, and/or maintaining cameras pointed in the direction of the Arevalo Property; recording, streaming, and/or videotaping any person or thing in the direction of, in, or on the Arevalo Property; storing, lean...

Excerpt: ...to meet and confer with counsel for the Kwahk Defendants prior to filing this Motion because their counsel did not respond to his requests. The Court will consider the Motion now but admonishes counsel and Plaintiff that further failure to meet and confer in good faith as required may result in a motion being taken off calendar or denied, as appropriate. The Court notes there have been numerous disputes in this case in a relatively short amount o...

Excerpt: ... papers were timely filed on July 27, 2022, and Plaintiffs have timely filed and served a reply on merits, which does not raise any service issue such that the opposing papers appear to have been served and no prejudice appears. “A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief. (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) Cal...

Excerpt: ...glect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).) “Where . . . the motion is made more than six months after entry of default, the motion is ...

Excerpt: ...uct which is intended to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Similarly, section 3294(c) defines “oppression” as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. Lackner v. North (2006) 135 Cal.App.4th 1188 explains “despicable conduct” is conduct that is “so vile, base, contemptible, m...

Excerpt: ...f. Code of Civil Procedure, section 128.7, and can exercise its discretion. (See Code Civ. Proc. § 128.7, subd. (c); Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 421.) “Frivolous” means either: (i) “totally and completely without merit”; or (ii) “for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5(b)(2).) An objective standard applies in determining whether a pleading is frivolous: �...

Excerpt: ... proposed amendments opens up an entirely new field of inquiry without any satisfactory explanation as to why the major change in point of attack had not been made long before trial. (Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 304, 311.) CA ST CIVIL RULES Rule 3.1324(b) A separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts g...

Excerpt: ...ted. [Citation.] When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. [Citations.] Both the standard of care and defendants' breach must normally be established by expert testimo...

Excerpt: ..., it appears Plaintiffs are seeking a mandatory injunction, which does not appear warranted here. First, Plaintiff has not adequately stated irreparable harm. Plaintiff is still permitted to build on its own property, regardless of whether or not an easement currently exists. Further, it is unclear whether Defendants actually object to permitting access for ingress and egress to Plaintiff's property, or to Plaintiff's desire to use the Easement f...

Excerpt: ...ce as to Exhibits A and B is DENIED, as those Exhibits are not relevant to the determination of the issues raised here. (State Compensation Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422, 442-443.) The Petition alleges three causes of action: (1) relief pursuant to Government Code section 54960.1 [cure and correct]; (2) relief pursuant to Government Code section 54960 and Code of Civil Procedure section 1060 [declaratory relief...

Excerpt: ...wn on March 7, 2022”: 1) Christy Han, Stratman & Williams-Abrego at e-mail address “[email protected]. 2) Carrie Heieck at Tinnelly Law Group by fax at 949-588-5993 3) Jerome Steinbrecher by U.S. Mail at 1333 W. Birchwood Ave. #203 Chicago, IL 60626 The moving papers must be served on all parties who have appeared in the action, whether or not the motion seeks relief against them. (Weil & Brown, Cal. Practice Guide: Civ. Proc. ...

Excerpt: ...ngible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” Defendants moves to compel answers to 12 questions. Plaintiff's counsel instructed Plaintiff not to answer Questions 1-11 based on an assertion of attorney-client privilege, and Question 12 based on an assertion of third-party privacy. Qu...

Excerpt: ...ED as follows. Moving Party is to give notice. Defendant/Cross-Complainant Noman R. Khan (aka Norman Khan) (“Defendant”) seeks an order compelling Plaintiff Shazia Khanum (“Plaintiff”) to provide further responses to: (1) Form Interrogatories, Set No. One (“Form Rogs”); and (2) Request for Production of Documents, Set No. One (“RFPs”). Code of Civil Procedure sections 2030.300 and 2031.310 allow a party to file a motion compelling...

Excerpt: ...tion, which was taken on September 13, 2021; (2) compelling production of documents from Underwood over the objections of Plaintiffs and their counsel at least seven days before the second session of Underwood's deposition is to take place; and (3) compelling production of a privilege log setting forth sufficient factual information for the Soderling Defendants to evaluate the merits of any privilege asserted blocking production of any otherwise ...

Excerpt: ...rive, Dana Point, California 92629 (the “Property”). Plaintiff alleges she and her husband purchased the Property with Defendants as an investment with each party owning a one-quarter interest. Plaintiff alleges the parties entered into an oral agreement in 1992 whereby Plaintiff and her husband would be removed from the title to facilitate a refinance on the Property, after which time Defendants would transfer Plaintiff and her husband back ...

Excerpt: ... occupied, or controlled the property; 2) the Defendant was negligent in the use or maintenance of the property; 3) the Plaintiff was harmed; and 4) the Defendant's negligence was a substantial factor in causing harm to Plaintiff. (CACI No. 1000.) A defendant is negligent in the use or maintenance of the property if: 1) A condition on the property created an unreasonable risk of harm; 2) the Defendant knew or, through the exercise of reasonable c...

Excerpt: ...and Ridgeway Development Company, Ltd. (the “Soderling Defendants”) oppose the motion. Soderling Defendants' Evidentiary Objections: The Court OVERRULES the evidentiary objections to sentences in the motion. The Court SUSTAINS the objection to the Declaration of Daniel Joslyn (“Joslyn Declaration”) for failure to comply with Code of Civil Procedure section 2015.5, and lack of personal knowledge. The failure to comply with section 2015.5 i...

Excerpt: ...leted. The Court declines to consider all new points, arguments, and evidence presented for the first time on reply. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.) The Court also notes the reply violates California Rules of Court, Rule 3.1113(d), which limits the length of a reply to 10 pages. The Court reminds counsel to comply with all applicable statutes and rules and ...

Excerpt: ...2 pages at $7.00 per page. (Compl., ¶ 12.) Plaintiff disputes Defendant's charge of $7.00 per page as excessive and exorbitant. (Compl., ¶¶ 22, 48.) He also claims the additional administrative fee of $70.00, UPS shipping charges totaling $40.00, and an additional two hour rate totaling $150.00 were not disclosed before contracting and are unenforceable. (Compl., ¶ 19.) Request for Production No. 6 This request asks for all invoices Defendant...

Excerpt: ...h 53, 63.) “Malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (Civ. Code, § 3294(c)(2)...

Excerpt: ...rike against Plaintiff's First Amended Complaint pursuant to Code of Civil Procedure section 425.16 (the “anti-SLAPP motion”). (ROA 30.) On April 12, 2022, this Court granted the anti-SLAPP motion as to the additional peer review allegation only and gave Plaintiff 10 days leave to amend. (ROA 124.) Defendants have appealed that April 12, 2022 order. (ROA 126.) Defendants contend that their appeal places an automatic stay of this action while ...

Excerpt: ...tiffs' Complaint Arises Out of Protected Activity. Defendant seeks to strike Plaintiffs' Complaint on the grounds the action is based on protected speech under Code of Civil Procedure Section 425.16(e)(3) or (4) – “statements made in a place open to the public or a public forum in connection with an issue of public interest” and/or “speech in connection with a public issue or an issue of public interest.” Here, the Complaint filed again...

Excerpt: ...r service of a written notice that default judgment has been entered, whichever is earlier. Here, under either section 473, subdivision (b) or 473.5, the motion is untimely. Nonetheless, defendant argues service of summons was never valid, therefore, the time limitations do not apply. “[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. … Under section 473, subdivisio...

Excerpt: ...h of that duty; (3) a proximate causal connection between negligent conduct and resulting injury; and (4) actual loss or damage resulting from professional's negligence. (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463.) A defendant moving for summary judgment bears an initial burden of producing admissible evidence sufficient to show that the plaintiff's action has no merit, i.e., that, as to each cause of action, one or more...

Excerpt: ...(a).) “Actions or tactics” include, without limitation, “the filing and service of a complaint.” (Code Civ. Proc., § 128.5(b)(1).) The “action or tactic” is “frivolous” within the meaning of the statute, if it is “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5(b)(2).) A “subjective” standard for bad faith applies to a motion under this section, (as ...

Excerpt: ...ther to issue a preliminary injunction, a court must consider two factors: (1) the likelihood the moving party ultimately will prevail on the merits, and (2) the balance of the interim harm that the moving party is likely to sustain if the injunction is denied and the harm to the opposing party is likely to suffer if the injunction is granted. (White, supra, at p. 554; Teamster Local 856 v. Priceless, LLC, (2003) 112 Cal. App.4th 1500, 1509.) “...

Excerpt: ...declaration under Section 2016.040. [¶] The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: [¶] (1) That the deposition not be taken at all.” (Code Civ. Proc., § 202...

Excerpt: ...rify that the Opposition was properly served on Plaintiff, the Court will not consider the Opposition in ruling on the Motion. Code of Civil Procedure section 638 states that “[a] referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the c...

Excerpt: ...uired per Code of Civil Procedure sections 430.41(a) and 435.5(a). (1) Defendant argues the first COA (Negligence) fails because Plaintiff alleges no facts to indicate a breach of any duty or that Defendant was the cause of his injuries. Defendant contends Plaintiff's allegations in support of this cause of action are conclusory, vague, ambiguous, and fail to state facts sufficient to constitute a negligence cause of action. The elements of a neg...

Excerpt: ... privileged documents involving three email chains produced by Defendants, Ronald Soderling, Soderling Living Trust, Tod W. Ridgeway, and Ridgeway Development Company, Ltd. (the “Soderling Defendants”) in discovery; and (2) contesting the “confidential” designation on 636 pages of documents produced by the Soderling Defendants. Per the Notice of Lodgment filed by Plaintiffs, Plaintiffs lodged the three emails inadvertently produced and ba...

Excerpt: ... under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding. (Code Civ. Proc., § 1286.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made . . . unless in accordance wit...

Excerpt: ...3).) The motion must “set forth specific facts showing good cause justifying the discovery sought by the demand” and be accompanied by a meet and confer declaration showing a good faith effort at an informal resolution was made. (Id., § 2031.310(b).) Plaintiff's meet and confer declaration demonstrates that the parties sufficiently met and conferred prior to the filing of this Motion and no informal resolution could be reached. Patriot objec...

Excerpt: ...care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” This includes “a cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the m...

Excerpt: ...rejudice, entering judgment in Cross-Complainants' favor, lifting the stay of the related cases and setting all hearings in those cases for the first available date. The motion is granted in part and denied in part as set forth below. Judgment Here, entry of judgment in favor of the Cross-Complainants as to the Cross-Complaints are proper because they obtained judgment in their favor as to the quiet title causes of action and dismissed all other ...

Excerpt: ...rt considers the amended versions of these documents, in conjunction with originally filed moving papers to which no amended version was filed. Chavez moves for an order granting summary judgment on Plaintiff Marina Espinoza's entire complaint, including Plaintiffs' Third Cause of Action for Professional Negligence and Plaintiffs' Fourth Cause of Action for Breach of Fiduciary Duty. “The elements of a cause of action in tort for professional ne...

Excerpt: ...osta County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343, 353, “We have no doubt that a public official or government body, just like any private litigant, may make an anti-SLAPP motion where appropriate.”) The court's determination of an anti-SLAPP motion is a two-step process. First, the court determines if the party moving to strike a cause of action has met its initial burden to show that the cause of action arises from an act i...

Excerpt: ...ordered the parties to meet and confer concerning the issues raised and provide a joint statement. (ROA 788.) The Joint Statement, filed on February 4, 2022, requested that the hearing be further continued, and the Court continued the hearing to April 26, 2022. (ROAs 790 & 795.) The parties' second Joint Statement, filed on April 20, 2022, indicated they were still attempting to resolve the issues raised and requested further continuance. (ROA 79...

Excerpt: ... no grounds exist to bar enforcement of the Agreement. (Code Civ. Proc., §1281.2.) The hearing on this matter has been continued on at least two prior occasions to permit supplemental briefing. At the last hearing on 4-7-22, Plaintiff's counsel raised additional arguments at oral argument not raised in her papers. Plaintiff argued the agreement lacked mutuality and any meeting of the minds, and Plaintiff could not be compelled to arbitrate her c...

Excerpt: ...”) Special Interrogatories, Set No. One, on the grounds the total number of interrogatories propounded is unwarranted and burdensome. KHAN contends KHANUM propounded 183 special interrogatories; that this number of interrogatories is not warranted based on the issues in this case; that the special interrogatories which ask Plaintiff to identify all documents in support of the contentions is duplicative of the Request for Production of Documents...

Excerpt: ...tive economic advantage; SUSTAINED, without leave to amend, as to the 6 th COA for economic duress, as follows. Plaintiff's Standing to Sue Derivatively on behalf of CHARTWELL, Plaintiff's Standing to Sue Directly, Whether Plaintiff's claims are derivative Claims, and Whether Plaintiff is an “Adequate” Representative to Assert Derivative Claims. MADISON demurs on the grounds that Plaintiff lacks standing to sue derivatively on behalf of CHART...

Excerpt: ... by a debtor is fraudulent as to a creditor, whether the creditor's claim arose before or after the transfer, if the debtor made the transfer (1) with an actual intent to hinder, delay or defraud any creditor, or (2) without receiving reasonably equivalent value in return, and either (a) was engaged in or about to engage in a business or transaction for which the debtor's assets were unreasonably small, or (b) intended to, or reasonably believed,...

Excerpt: ...ividual; and Yvonne Burkhart, an individual is OVERRULED. To state a cause of action for neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act, the plaintiff must allege facts establishing that defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder o...

Excerpt: ... states that a “Proposed Third Amended Cross-Complaint” is attached for the Court's review as Exhibit A. (See Pierce Decl., ¶ 5, Exh. A.) Again, any new proposed pleading would be a Second Amended Cross-Complaint only. Accordingly, the proper name of the Motion is one seeking leave to file a Second Amended Cross-Complaint. Pertinent History re FHDI/NICOLAS' Motion for Judgment on the Pleadings as to the First Amended Cross-Complaint: On Sept...

Excerpt: ... triable. (Wegner, Fairbank & Epstein, Cal. Prac. Guide: Civ. Trials & Evid. (The Rutter Group October 2021 update), §§ 2:216-2:217.) Nevertheless, as Defendants do not oppose on this basis, the Court will address the merits of the motion. As a general proposition, the jury trial is a matter of right guaranteed by Article I, Section 16 of the California Constitution in a civil action at law, but not in equity. (C & K Engineering Contractors v. ...

Excerpt: ...r the deposition, Defendant provided Plaintiff with an invoice showing charges for 282 pages at $7.00 per page. (Compl., ¶ 12.) Plaintiff disputes Defendant's charge of $7.00 per page as excessive and exorbitant. (Compl., ¶¶ 22, 48.) Special Interrogatory No. 2: This interrogatory asks Defendant to state the rate Defendant paid the court reporter for the subject deposition. Defendant's supplemental response states: “Eun Jee ‘Grace' Kwahk c...

Excerpt: ...r service of a written notice that default judgment has been entered, whichever is earlier. Here, under either section 473, subdivision (b) or 473.5, the motion is untimely. Nonetheless, defendant argues service of summons was never valid, therefore, the time limitations do not apply. “[A] default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. … Under section 473, subdivisio...

Excerpt: ...laint includes derivative claims. (Motion: 5:12-16 and 7:11-15). In making this argument, however, Defendant offers no citations to legal authority outlining the defining characteristics of a derivative action. Nor does Defendant offer analysis of the specific claims asserted within the Complaint. “Every brief should contain a legal argument with citation to authorities on the points made. If none is furnished on a particular point, the court m...

Excerpt: ...terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subds. (a)-(b).) “[W]hen a discovery request seeks information implicating the constitutional right of privacy, to order discovery si...

Excerpt: ...n – Negligence (Does 1-100): Plaintiff does not contest the City's motion as to this cause of action as it is brought against Does 1-100, only, and to date, no doe amendment has been filed to identify any additional defendants. The court considers plaintiff's silence on this issue a concession. The court GRANTS the motion for summary adjudication as to this cause of action (issue no. 1). Second Cause of Action – Premises Liability (Dangerous ...

Excerpt: ...hich involves the sale of a used automobile, the element of wrongdoing is established by pleading and proving (1) the plaintiff bought a used automobile from the defendant, (2) at the time of purchase, the defendant was in the business of selling automobiles to retail buyers, (3) the defendant made express warranties with respect to the used automobile, and (4) the automobile was not fit for ordinary purposes for which the goods are used. General...

Excerpt: ...9, 2022 that “[i]n fact, my insider at LAF told me that it was YOU that concocted this flawed strategy, right?” 2. IDENTIFY any and all COMMUNICATIONS RELATED TO FITNESS, which occurred between January 1, 2020 and the present, between Elliott H. Stone and the PERSON he was REFERRING to as his “insider” when he stated in an email dated February 9, 2022, that “[i]n fact, my insider at LAF told me that it was YOU that concocted this flawed...

Excerpt: ...Professional Relationship (Civ. Code, § 51.9), each fail to state facts sufficient to constitute a cause of action against them. Initially, the Court notes Defendants failed to properly meet and confer before bringing their Demurrer. Before filing a demurrer, a party must meet and confer in person or by telephone with the party who filed the pleading, at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(...

Excerpt: ...Third Amended Complaint (“TAC”) filed by Plaintiffs Auric Energy Inc. (“Auric Energy”) and Anibal Rodriguez (“Rodriguez”) (“Plaintiffs”) is OVERRULED in its entirety. First, Second, Third, Eighth, and Ninth Causes of Action These five causes of action relate to the fraud-based causes of action, and include the First Cause of Action for Fraud, Second Cause of Action for Negligent Misrepresentation, Third Cause of Action for Intenti...

Excerpt: ...e under Code of Civil Procedure section 425.16. First, the court determines whether the defendant has made a prima-facie showing that the complaint “arises from” defendant's constitutionally-protected free speech or petition activity. (Code Civ. Proc., §425.16(b); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) Once t...

Excerpt: ...g, LLC's unopposed Request for Judicial Notice is GRANTED. Defendant Evan Paul Auto Leasing, LLC's, Special Motion to Strike Plaintiff's Complaint [anti- SLAPP], is DENIED. (4) Defendant Evan Paul Auto Capital, LLC's unopposed Request for Judicial Notice is GRANTED. Defendant Evan Paul Capital, LLC's, Special Motion to Strike Plaintiff's Complaint [anti- SLAPP], is DENIED. The Two-Step Anti-SLAPP Analysis Anti-SLAPP motions are evaluated through ...

Excerpt: ...section 2020.250. (See Motion, 5:13-17.) However, the Code of Civil Procedure does not have a section 2020.250. Thus, Plaintiffs fail to provide authority in support of a contempt sanction, and the request for contempt is denied. Failure to include points and authorities supporting each ground for the motion may be treated as an admission that the motion is not meritorious, and as ground to deny it. (California Rules of Court, Rule 3.1113(a).) In...

Excerpt: ...Section 1987.1 to quash or modify the subpoena duces tecum.” Additionally, the motion to quash production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (See CRC 3.1345(a)(5).) On November 17, 2021, Defendants served a Deposition Subpoena for Production of Business Records to the Custodia...

Excerpt: ...d (per the privilege log). Additionally, the discovery responses were mostly code compliant. In pertinent part, they stated the following:  Second Amended Response No. 1: “Plaintiff has conducted a diligent search and reasonable inquiry to search for the requested documents. Attached hereto as Exhibit 1, Exhibit 2, and Exhibit 3 are all non-privileged responsive documents in Plaintiff's possession, custody and control at this time. Plaintiff...

Excerpt: ... 425.16. First, the court determines whether the defendant has made a prima facie showing that the complaint “arises from” defendant's constitutionally-protected free speech or petition activity. (Code Civ. Proc., § 425.16, subd. (b); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) Once the defendant makes such prima ...

Excerpt: ...the merits, but Plaintiff is ordered to comply with the meet and confer requirements in any subsequent Demurrer. The Court SUSTAINS the demurrer as to the prayer for attorney fees. The Answer fails to plead the basis for the request for attorney fees, i.e., contract or statute. The Demurrer is OVERRULED as to the 1 st through 19 th, 21 st, and 23 rd Affirmative Defenses. As to Affirmative Defense Nos. 1 and 22, there is no new matter at issue wit...

Excerpt: ...cases. (In re Complex Asbestos Litig. (1991) 232 Cal. App. 3d 572, 585.) “Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. [Citation.] A “standing” requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney....

Excerpt: ...gatories, Employment, Set One; Form Interrogatories, General, Set One; Special Interrogatories, Set Two; and Special Interrogatories, Set One. Defendant also seeks monetary sanctions in the total amount of $16,023.00. Plaintiff indicates she has served further responses and further document production in response to Request for Production Nos. 5, 17-20, 22, 32, 31, 33, 35-37, and 42-43; Special Interrogatories No. 12; Form Interrogatories, Genera...

Excerpt: ...no grounds exist to bar enforcement of the Agreement. (Code Civ. Proc., §1281.2.) An electronic record or signature is attributable to a person if it was “the act of the person.” (Civ. Code, § 1633.9, subd, (a).) The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or signature was attributable. (Civ. Code, § 1633.9, su...

Excerpt: ...ties Code, and the regulations promulgated and enforced by the California Public Utilities Commission firmly establish Uber is vicariously liable for Defendant, Danilo Dimayga Lumbera's negligence and owed Plaintiff a heightened duty as a matter of law.” (Notice, 2:4-10.) To move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of...

Excerpt: ...f the visitor's personal safety [citation removed], the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Id. at 1206). “Although the owner's lack of knowledge is not a defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier ‘must have either actual or constructive knowledge of the dangerous conditi...

Excerpt: ...dant is correct in that this cause of action is directed against him. Directly under the title of the second cause of action, Plaintiffs allege that the second cause of action is brought “(By Plaintiffs Pablo Jose Valdes De Ferari and Aleida Isabel Aguirre Against Defendants Rogelio Adrian Vasquez, Pearce Services, LLC, and Does 2 Through 20).” (See, SAC pg. 19:16-17 (emphasis added).) Defendant is also correct that throughout the SAC Plainti...

Excerpt: ... the expert is solely retained as a consulting expert, the attorney-client privilege applies to communications made by the client or the attorney to the expert to allow the expert to properly advise counsel. Furthermore, a consulting expert's report, prepared at the attorney's request and with the purpose of assisting the attorney in trial preparation, constitutes work product. (See, DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 688....

Excerpt: ...on 1030(d). Moving Defendants to give notice. This Motion first came up for hearing on February 1, 2022. (ROA No. 296). On that date, the Court found Defendants sufficiently demonstrated a “reasonable possibility of prevailing,” as required to support a Motion for Bond brought pursuant to Code of Civil Procedure section 1030. (Id.) Additionally, the Court found Defendants sufficiently supported their request for a bond in the amount of $22,10...

Excerpt: ...rties. The RPDS are listed below: NO. 7. All DOCUMENTS in which YOU have referenced Robert Descharnes from August 9, 2013 to the present. NO. 8. All DOCUMENTS in which YOU have referenced Robert Descharnes' books from August 9, 2013 to the present. NO. 9. All DOCUMENTS in which YOU have referenced Nicolas Descharnes from August 9, 2013 to the present. NO. 10. All DOCUMENTS in which YOU have referenced Nicolas Descharnes' books from August 9, 2013...

Excerpt: ... party until an order for discovery is obeyed, an order dismissing the action, or any part of that action, of that party, or an order rendering a judgment by default against that party. (Code Civ. Proc., § 2023.030(d).) Additionally, the court may impose a monetary sanction ordering that one engaging in conduct that is a misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, included attorney...

Excerpt: ...oid summary adjudication, plaintiffs must produce evidence that could, if accepted by the trier of fact, satisfy the clear and convincing standard of proof. (Ibid.) Under Civil Code section 3294, subdivision (c), the following definitions apply: “(1) ‘Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the...

Excerpt: ...nt has no merit. (See Code Civ. Proc. § 437c, subd. (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [same].) Plaintiff's form Complaint contains two causes of action for general negligence and premises liability. “[C]laims for negligence and premises liability have the same elements—namely, (1) ‘a legal duty of care,' (2) ‘breach of that duty,' and (3) ‘proximate cause resulting in injury.'” (Issakhani v...

Excerpt: ... re Mrs. Gamo: If a deponent fails to answer a deposition question or produce documents or things designated in the deposition notice or subpoena, the examiner may either complete the examination on other matters or adjourn the deposition. (Code Civ. Proc., §§ 2025.460, subd. (e), 2025.480, subd. (a).) In either event, if the examiner wants an answer to the question or the documents produced, the examiner must file a motion to compel. (Code Civ...

Excerpt: ...(a); Civil Code § 1794) because the undisputed material facts demonstrate: (A) Plaintiff has no actual damages which is fatal to her claims; (B) KA complied with its statutory obligation by promptly offering to repurchase the vehicle, and then doing so. [See KA's Separate Statement of Undisputed Material Facts, Fact Nos. 1-31]. 2. KA is entitled to summary adjudication of Plaintiff's Violation of Civil Code § 1793.2(b) (Second Cause of Action) ...

Excerpt: ...mmunity Hospital nursing staff did or did not do was a substantial factor in causing Plaintiff's shoulder dystocia or the brachial plexus injury during her mother's labor, delivery or after her delivery.” (SSUF No. 20). In opposing the instant Motion, Plaintiff raises two theories of liability: (1) Plaintiff asserts Defendant Kim was the ostensible agent of Defendant La Palma, such that Defendant La Palma is liable for his negligence; and (2) P...

Excerpt: ... his claims derivatively on behalf of CHARTWELL. (See Corp. Code § 2116; Vaughn v. LJ International, Inc. (2009) 174 Cal.App.4th 213, 223.) Under the New York Business Corporation Law § 626(a), “[a]n action may be brought in the right of a domestic or foreign corporation to procure a judgment in its favor, by a holder of shares or of voting trust certificates of the corporation or of a beneficial interest in such shares or certificates.” He...

Excerpt: ... not been prejudiced as it had the opportunity to file a reply. The court will address the arguments raised in petitioner's opposition. The SAP alleges the arbitration award was procured by corruption, fraud, or other undue means under Code of Civil Procedure section 1286.2. Corruption, Fraud, or Other Undue Means: This ground applies either to fraud perpetrated by the arbitrator or to fraud by a party. (Pacific Crown Distributors v. Brotherhood ...