Excerpt: ...laim. Moreover, corporate ratification has not been adequately pleaded. Pursuant to Civil Code section 3294(a), a plaintiff may seek punitive damages for “oppression, fraud, or malice.” Section 3294(c) defines “malice” as conduct 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 condu...

Excerpt: ...in reply is insufficient and does not establish compliance with CRC, Rule 3.1324(a). In addition, Plaintiffs fail to comply with California Rules of Court, Rule 3.1324(a). Plaintiffs provide that there are additional facts and claims regarding Plaintiffs' pre-existing causes of action for breach of fiduciary duty against Mr. Soderling and Mr. Lutton but do not, but the failure to specify what has been deleted or added to the proposed Second Amend...

Excerpt: ...with EON Reality, Inc., a U.S. corporation.” (Complaint ¶5.) Plaintiff further pleads, “Venue is proper in this Court under California Code of Civil Procedure section 395 because Plaintiff's injury was suffered in this County and the relevant records are maintained in this County.” However, it is unclear from the Complaint itself whether the “contracts” referred to is the employment contract with Defendant, or contracts between EON and...

Excerpt: ...ts with the state that the assertion of jurisdiction does not violate ‘traditional notions of fair play and substantial justice.'” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4 th 434, 444, abrogated on other grounds by Bristol-Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773.) “When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts jus...

Excerpt: ... 1-8 which are to the Declaration of S. SHAH. Defendants' Evidentiary Objections to Plaintiff's Evidence in support of Opposition. The Court OVERRULES all Objections Nos. 1-36 which are Declarations of the R. Steele, Esq. and NILESH. Motion. As to the 1 st COA (fraud, Issue Nos. 1 through 3), the Court finds there are triable issues of material fact. Defendants seek summary judgment on the 1 st cause of action for fraud asserted against SANDEEP o...

Excerpt: ...ent in the Complaint. In the alternative, Plaintiff moves for an order granting summary adjudication as to the following issues: Issue No. 1: There is no triable of issue of material fact and the first cause action for Breach of Contract is with merit because Defendants cannot establish that they were entitled to receive any fees on account of the filing of a Petition for Letters of Administration seeking to have Plaintiff appointed the administr...

Excerpt: ...e of Civil Procedure section 1286.2 permits a court to vacate an arbitration award if “[t]he award was procured by corruption, fraud or other undue means” and if “[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Code Civ. Proc., § 1286.2, subd. (a)(1), (4).) Corruption, Fraud, or Other Undue Means: This ground applies either to fraud p...

Excerpt: ...e section 1030(a), “[w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding.” “The motion shall be made on the grounds that the plaintiff resides out of the ...

Excerpt: ...ns to the SUF in the motion, other than a few background facts with respect to each issue. However, if the separate statement sets forth each fact and supporting evidence, the motion complies with the Rules of Court and Code of Civil Procedure section 437c. Defendants also argue that plaintiffs refer to the standard for summary judgment as opposed to summary adjudication. Despite the incorrect reference, it does not affect the court's analysis. M...

Excerpt: ...ment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (CRC, Rule 3.1324(b).) While the Supplemental Declarations of Cody James Shaver (“Supp. Shaver Decl.”) and Jason J. Fratts (“Supp. Fratts Decl.”) sets forth the effect of the amendment for the second cause of action for breach of fiduciary duty and why the amendmen...

Excerpt: ...rt, DENIED in part. 1st COA (Declaratory Relief): Here, the Cross-Complaint requests at least three separate declarations, which are all are combined into the first cause of action for declaratory relief: 1. A declaration that 150 NCD is a disassociated or “Involuntary Withdrawn” member; 2. A declaration that the vote on February 13, 2019 appointing a second, second manager was void ab initio and that the duplicative second manager has no rig...

Excerpt: ...D, as follows. First, Second, Third, Eighth, and Ninth COAs 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 Intentional Misrepresentation, Eighth Cause of Action for False Promise, and Ninth Cause of Action for Nondisclosure of Material Facts. The alleged representations and/or promises made by...

Excerpt: ...e of Civil Procedure section 1286.2 permits a court to vacate an arbitration award if “[t]he award was procured by corruption, fraud or other undue means” and if “[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Code Civ. Proc., § 1286.2, subd. (a)(1), (4).) Corruption, Fraud, or Other Undue Means: This ground applies either to fraud p...

Excerpt: ...mental responses were served and further meet and confer efforts took place. The main issue is whether the supplemental responses are proper. Conteas served the subject Form Irogs as the defendant on the complaint by plaintiff. (See Liberto Decl., Exh. 2, Form Irogs.) Additionally, the “Incident” refers to the dispute over the payment of legal fees. (Ibid.) The Form Irogs do not indicate that information is being sought with regard to Conteas...

Excerpt: ...use Plaintiff has no standing to assert that claim. Pursuant to Civil Code section 5975, subd. (a) a party must be either an “owner of a separate interest,” an “Association,” or “both” in order to enforce equitable servitudes such as covenants, conditions and restrictions (“CC&Rs”). Plaintiff fits no such description, by his own admission, and he thus lacks standing to purse this claim. THIRD COA (Nuisance) Issue No. 2: The GARRUB...

Excerpt: ... 3. Motion to compel further responses by cross-complainant/defendant Alexandra Vanegas to Plaintiff's Requests for Production of Documents, Set One 4. Motion to compel further responses by cross-complainant/defendant Dylan Kim to Plaintiff's Requests for Production of Documents, Set One 5. Motion to compel further responses by cross-complainant/defendant Jay Sohn to Plaintiff's Requests for Production of Documents, Set One Meet and Confer: Prior...

Excerpt: ...ash Service of Summons, on the ground of lack of jurisdiction. Pursuant to section 410.10, “[a] court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” “A state court's assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Con...

Excerpt: ...wing non-parties: McCormick Ambulance, The Pain and Rehabilitation Medical Group, Torrance Memorial Medical Center, United Healthcare Services, and Beach City Orthopedics for records relating to Bennett, and McCormick Ambulance for records relating to Espinoza. In the alternative, Plaintiffs seek a protective order limiting the scope of the subpoenas to records that predate the trial in the underlying tort action, September 4, 2018, and restricti...

Excerpt: ...se he is not, and never has been, a percipient witness; his sole involvement has at all times been as lead litigation counsel for various Defendants since he was first retained in or about October 2016 in response to Plaintiffs' initial lawsuit; and he does not have any information relevant to the claims or defenses asserted in this case other than from information he has gathered through attorney-client communications, his own work product and t...

Excerpt: ... property, recorded as Document No. 2020000331529, in the official records of the Recorder's Office of Orange County on or about July 13, 2020, by Plaintiff, KPRS Construction Services, Inc. (“KPRS”). As an initial matter, KPRS' opposition was filed and served late on 11-17-21. However, as a reply has been timely filed and served, addresses the merits of the opposition, and does not argue prejudice as a result of the late opposition, the Cour...

Excerpt: ...ices, Inc., et al. v. Gregg Gann, et al. (the “Derivative Action”) with OCSC Case No.: 30- 2021-01184693-CU-BT-CJC captioned, Gregg Gann, an individual; Westview Services, Inc., et al. (“Gann v. Leiba”). Defendant Gregg Gann (“Gann”) opposes the motion on the procedural and substantive grounds. It is unclear whether the Notice of Motion to Consolidate was filed in Gann v. Leiba as required by CRC, Rule 3.350(a)(1)(C). Leiba's contenti...

Excerpt: ...ition are no longer at issue since the matter was continued multiple times. The merits are addressed below. The Undisputed Material Facts (UMFs) are repeated throughout the separate statement and were renumbered with each issue. To avoid confusion, the court will refer to the number that the fact was first mentioned. Objections: The court overrules plaintiff's single objection to defendant's evidence. As to defendant's objections, the court susta...

Excerpt: ...of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc., § 473(a)(1).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an...

Excerpt: ...statute of limitations for fraud (COAs 1 and 3-6) are OVERRULED; the demurrers to the 1 st and 5 th COAs for breach of fiduciary duty are OVERRULED; the demurrers to the 2 nd and 3 rd COAs for breach of oral contract and common counts, respectively, are SUSTAINED with 20 days leave to amend. SPECIAL MOTION TO STRIKE (ANTI-SLAPP) AND MOTION TO STRIKE PUNITIVE DAMAGES: Courts use a two-step process for determining whether an action or a claim is a ...

Excerpt: ...rest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. (See also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178, 1218.) The court denies the request seal the entire settlement agreement as defendant has not s...

Excerpt: ...of each of the 6 th through 10 th affirmative defenses of plaintiff Orange County Association for Mental Health dba Mental Health Association of Orange County [“MHAOC”] and BT Investment Properties, LLC's [“BT”] Answer to the Complaint 3. Summary judgment of MHAOC's Cross- Complaint The Motions are DENIED. 1. Motion for Summary Judgment – 2 nd COA (public nuisance per se) Through this Motion the City of Santa Ana asks the Court to enter...

Excerpt: ... in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, ‘attorney's fees' means reasonable attorney's fees a party may be authorized to recover by...

Excerpt: ...ne items requested pursuant to Evidence Code section 452(d) and 452(h), but declines to take judicial notice of hearsay statements therein. (Herrera v. Deutsche Bank Nat'l Trust Co. (2011) 196 Cal.App.4th 1366, 1375; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The plaintiff bears the burden to show all elements necessary to support issuance of ...

Excerpt: ... that Plaintiff suffered from a disability since Plaintiff admits he returned to work with a release to full work duty; (2) the allegations that Plaintiff was experiencing pain in his right wrist and right hand are insufficient to constitute a “disability”; (3) the Complaint fails to allege Defendant knew Plaintiff suffered from any alleged disability; and (4) the Complaint does not allege that Plaintiff was terminated “because of” his di...

Excerpt: ...ies of his everyday business would be severely impeded if every plaintiff filing a complaint against an agency head, in his official capacity, were allowed to take his oral deposition. Such procedure would be contrary to the public interest, plus the fact that ordinarily the head of an agency has little or no knowledge of the facts of the case.” ' ” (Contractors' State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 131.) “An excep...

Excerpt: ...t be admissible, they appear reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Plaintiff alleges more than $900,000 in future loss of earnings capacity related to her inability to complete a career as a veterinarian due to the accident. (Declaration of Connor Stinson (“Stinson Decl.”), ¶¶ 6-7.) Plaintiff's education consists of a high school diploma from El Dorado High School, and one sem...

Excerpt: ...ter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638; In re Estate of Young (2008) 160 Cal.App.4th 62, 79.) Fraud must be pled specifically; general and conclusory allegations do not suffice. (Alfaro v. Community Housing Imp. System & Planning Ass'n, Inc. (2009) 171 Cal.App.4th 1356, 1384.) This particularity requirement necessitates pleading...

Excerpt: ... August 25, 2021, the Court continued the hearing due to insufficient meet and confer efforts by the parties. A declaration of counsel concerning the subsequent meet and confer efforts was timely filed and served on September 1, 2021, and indicates counsel for the parties discussed the issues in the motion by telephone and could not come to a resolution. (Declaration of A. Michael Sabongui, ¶¶ 3-6, ROA 116.) Motion to Strike As a threshold matt...

Excerpt: ...l Contract ¶¶15, 16.) The Declaration of Hootan Ataian also suggests he loaned Defendant HAS $300,000.00 at the request of HSA Manager, Abrahim Etemad Haary. (Decl. of Hootan¶2,3) However, submitted with the Opposition is a Declaration of Haary, wherein he states, “At no time did Hootan Ataian and I discuss that Hootan would be “loaning” money to HAS, nor did I ever tell Hootan that HAS would agree to repay him for the $300,000 that he p...

Excerpt: ...eks to appear as counsel pro hac vice. (Calif. Rules of Court, rule 9.40(a).) Defendant is a LLC and cannot represent itself. (Merco Const. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 731.) Therefore, this motion was improper. Defendant also labeled this motion as a motion to dismiss. The court deems this motion as a motion to quash. Merits: The issue of whether this court has personal jurisdiction over a foreign-state LLC that sold ...

Excerpt: ...bismus, at which time Plaintiff discovered that Defendants negligently diagnosed and treated Plaintiff, resulting in severe and permanent injury to Plaintiff.” Finally, in ¶10 she pleads, “as a foreseeable result of the improper diagnosis and treatment procedures done by Defendants, and each of them, Plaintiff was permanently injured.” (Emphasis added.) Based on these facts, Defendant filed an MSJ addressing the standard of care in perform...

Excerpt: ...e loan amount of $78,800.00 into Borrower's bank account, thereby performing its obligations under the Loan Agreement; on or about July 2, 2019, Borrower breached the terms of the Loan Agreement by failing to timely make its payments and then not making any additional payments on the Loan Agreement; that Borrower made $2,894.68 of its $106,380 obligation; as a result of Borrower's breach of the Loan Agreement, $103,485.32 remains due and payable;...

Excerpt: ...e motion for summary judgment and summary adjudication must be denied. “[T]he moving party should ‘“[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in [the] separate statement, the motion must be denied!”'” (Insalaco v. Hope Lutheran Church of...

Excerpt: ...ply with CRC, Rule 3.1354. Procedural Defects: The Court notes Defendants' Notice of Motion and Response to Separate Statement fail to comply with California Rules of Court, Rule 3.1350(b) which states: “If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative ...

Excerpt: ...uest for amendment was not made earlier.” “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading….” (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts are bound to apply a policy of great liberality in permitting amendments to ...

Excerpt: ...ntiff's causes of action are uncertain as brought against KMA.” However, the “Demurrer” does not set for uncertainty as a ground for the demurrer, nor is this ground for demurrer discussed in the Memorandum. Thus, the Court treats this ground for demurrer as waived. (California Rules of Court, Rule 3.1113(a).) Third COA (Violation of Subdivision (A)(3) of Civil Code section 1793.2): The Complaint states facts sufficient to constitute this c...

Excerpt: ... identifying any documents it has withheld on the basis of those objections, as required under Code of Civil Procedure section 2031.240(b)(l). Defendant argues (without proof) that it served verified responses and supplemental verified responses to these requests. Defendant suggests it produced all the documents relating to these demands. It appears the disputes may be moot. However, a responding party may not self-select its preferred responsive...

Excerpt: ...ses to BRE's Form Interrogatories, Set Two, No. 17.1, and to Requests for Admission, Set One, Nos. 1-3, 6-17. Plaintiff asserts causes of action for premises liability, negligence, and negligence per se, and has placed BRE's ownership and possession of the subject property at issue in this lawsuit. (See Complaint, ¶¶ 5, 19.) Thus, the subject matter of the instant requests are proper. The responses to Requests for Admission, Set One, Nos. 1-3, ...

Excerpt: ...o plaintiff therefrom.” (Wall St. Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1178.) Here, Plaintiff presents evidence that on or about September 18, 2019, Defendant NEW LEAF, as “Borrower”, Borrower executed and delivered to Plaintiff a Business Loan Agreement, agreement number 7-476483-1 (the “Loan Agreement”); that Borrower received an original loan in the principal amount of $31,000.00; that the Loan Agreement...

Excerpt: ...uiet Title by Way of Easement by Necessity; (3) Third Cause of Action to Quiet Title by Way of Easement by Collateral Estoppel; and (4) Fourth Cause of Action to Quiet Title by Way of Equitable Easement. Evidentiary Objections: Davis' evidentiary objections to Ephland's evidence are OVERRULED as to Nos. 1-7. Ephland's evidentiary objections to Davis' evidence are SUSTAINED as to Nos. 1, 2 and 4-9 and OVERRULED as to No. 3. Requests for Judicial N...

Excerpt: ...st for amendment was not made earlier.” “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading….” (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts are bound to apply a policy of great liberality in permitting amendments to th...

Excerpt: ...an independent tort. On a conspiracy theory, defendants who did not commit the tort may be jointly liable with the immediate tortfeasors when they share with the immediate tortfeasors a common plan or design in its perpetration. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823; Kenne v. Stennis (2014) 230 Cal.App.4th 953.) The complaint must allege acts that would have given rise to a tort cause of action w...

Excerpt: ... hearing for 1-31-2022, Dept. C11, at 8:45 am. Defendants are to give notice. The Arbitration Agreement is attached as Exhibit B to the motion and is two pages in length. In summary, it is between defendant Leisure Court Nursing Facility and plaintiff-decedent Benjamin Naples. However, it is signed by plaintiff Beverly Larson as Naples' agent. At the top of the agreement, it states that residents are not required to sign the arbitration agreement...

Excerpt: ...]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known ...

Excerpt: ...21. (See McKown Decl., ¶¶ 3-5, Exhs. A-C.) In Opposition, Plaintiffs state TIEBACK's counsel specifically asked for an in-person deposition of his client's PMQ; that it was never said that Defendants' could not appear for the deposition remotely; and that there has been a productive meet and confer on this issue between all counsel involved. Based on the above, the Court finds this request for protective order appears MOOT. However, to the exte...

Excerpt: ...orrectly raise the point that the SAXC asserts a new theory of liability for fraudulent concealment-conspiracy. Per the Court's 1-19-2021 Minute Order, the Court “sustained with 20 days, final leave to amend” a prior demurrer to the First Amended Cross-Complaint of Sean Parry. (See ROA 165.) The prior demurrer to the First Amended Cross-Complaint involved two causes of action for Declaratory Relief and Violation of Business and Professions Co...

Excerpt: ...a legitimate reason factually unrelated to prohibited practices, which, if true, would preclude a finding of an unlawful practice. (Guz v. Bechtel Nat'l Inc. (2000) 24 Cal.4 th 317, 358.) Defendant has produced no evidence of the identity of the person who made the ultimate decision to discharge Fossi from employment. Even if it is assumed that Fossi's record supported discharge under Maxim's policies, no evidence has been offered about what evid...

Excerpt: ...) for insufficient facts and uncertainty and seek to strike civil penalties based on a breach of implied warranty and emotional distress damages. The demurrer is SUSTAINED with 20 days leave to amend. The motion to strike is MOOT as to the civil penalty issue and DENIED as to the emotional distress damages issue. (1) Demurrer: The 2 nd COA is for a violation of the Song-Beverly Consumer Warranty Act. It alleges breaches of both express and implie...

Excerpt: ...cluded under the terms of the State Farm Homeowners Policy issued to Plaintiff. As such, there was no coverage under the insurance policy contract. 2. Because Plaintiff's first cause of action for breach of contract fails, as a matter of law, the remaining causes of action also fail, as a matter of law. Alternatively, State Farm seeks summary adjudication of the following issues: 1. Plaintiff's second cause of action for bad faith fails, as matte...

Excerpt: ...ction of documents were directed fails to serve a timely response, the propounding party may move for an order compelling responses, and for monetary sanctions. (Code Civ. Proc. §§ 2030.290(b); 2031.300(b).) By operation of law, if a party fails to serve a timely response to interrogatories or inspection demands, all objections that could have been asserted are waived, including objections based on privilege or on the protection for work produc...

Excerpt: ...ve damages from the complaint filed by plaintiffs Serhiy Postrekhin, Nadia Postrekhina, and Alisa Postrekhin and Mila Postrekhin, through their Guardian Ad Litem, Alena Zoubareva. The court rules as follows: Meet and Confer: Defendants' counsel spoke with plaintiffs' counsel and could not agree on the issues. (Safar Decls., ¶¶ 1.) Defendants sufficiently met and conferred prior to filing the demurrer and motion to strike. (Code Civ. Proc., §§...

Excerpt: ...or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm.” (So v. Shin (2013) 212 Cal. App. 4...

Excerpt: ... which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case,. . . .” (Emphasis added.) Beyond section 598, Code of Civil Procedure section 1048(b) states: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expeditio...

Excerpt: ...irror Co. (1975) 51 Cal.App.3d 879, 884.) Mistake must be pleaded with some particularity so that there is “a clear recitation of facts showing how, when and why the mistake occurred.” (citations omitted) (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1243.) As to the 2 nd COA, Rescission based on Mutual Mistake, Cross-Complainants plead, in part, the following: 25….In fact, MASRI informed TOBIN that the ...

Excerpt: ...on, Plaintiff must allege that Defendant KPRS had the ability to pay and willfully or deliberately chose not to pay Plaintiff; and that the Complaint fails to do so. In Opposition, Plaintiff contends all Plaintiff needed to allege was the existence of a contractor's license bond, that plaintiff is a proper claimant, and that the contractor for whom the bond was issued violated the law. Business and Professions Code section 7071.5 states: “The c...

Excerpt: ...on of administrative remedies is required, unless an exception applies. “‘The exhaustion doctrine is principally grounded on concerns favoring administrative autonomy (i.e., courts should not interfere with an agency determination until the agency has reached a final decision) and judicial efficiency (i.e., overworked courts should decline to intervene in an administrative dispute unless absolutely necessary).'” (Coachella Valley Mosquito &...

Excerpt: ...gence. (See Second Amended Complaint (“SAC”).) Plaintiff alleges that on July 29, 2018 he went to NOBU and ate raw oysters and that as a direct result of the oysters he consumed, he developed abdominal pain, diarrhea, and lower gastrointestinal pain. (Id., ¶ 16-18.) On information and belief, Plaintiff alleges that, inter alia, Defendant OCEAN CRYSTAL “manufactured, distributed, wholesaled, marketed, sold and supplied” the contaminated o...

Excerpt: ...osts pursuant to the authority cited in the moving papers. They also agree upon use of the lodestar method, and the hourly rates charged by LARMAC's counsel, Whitney Petchul (ranging from $125 for paralegal to $305 an hour for attorneys. See Declaration of Gaba¶7). However, to analyze the billing statements and fees incurred by six different attorneys, over the course of five (5) years, the Court imposed a “blended rate” of $253. There is a ...

Excerpt: ...18-2020, the trial date was set for 10-5-2020. (ROA 43.) This motion was filed on 3-25-2021. Therefore, the statutory motion is procedurally improper. However, the common law motion may still proceed. “A motion for judgment on the pleadings may be made at any time either prior to the trial or at the trial itself.” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) 2nd COA – Trespass: Defendants argue (1) the trespass claim is duplicative ...

Excerpt: ...'s Objections to Plaintiff's Evidence, consisting of Objection Nos. 1 through 3. There is a three-step process in reviewing a summary judgment motion. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 638.) The court first “ ‘identif[ies] the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory ...

Excerpt: ...isors at the Fire Department); and (2) whether there is an attorney-client relationship between Jones & Mayer and the Investigator Steve Filarsky, and/or with the prosecuting attorneys from Atkinson, Andelson, Loya, Ruud & Romo (AALRR). “Preliminarily, we agree that in the context of administrative law, there is no absolute prohibition against the city attorney's office representing both the Board and other city agencies such as the police depa...

Excerpt: ...ishi,” dated 3-30-13. (See Balladares Decl. at Ex. A [RISC].) A nonsignatory seeking to enforce an arbitration agreement bears the burden to establish standing to enforce the agreement. (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 15.) Defendant has failed to meet this burden. First, contrary to defendant's contentions, Plaintiff did not expressly agree to arbitrate her claims against Defendant. The arbitration agreement explicitly requires onl...

Excerpt: ...red in late September 2020 that Plaintiff had engaged in similar fraudulent conduct with other third parties and is the subject of other pending lawsuits by third parties. This, however, does not constitute “new” “facts” or “circumstances” which “could not, with reasonable diligence, have been discovered and produced at the time of the prior motion” as required. (See Forrest v. State of California Dept. of Corporations (2007) 150 ...

Excerpt: ...year from the making of the contract.” (White Lighting Co. v. Wolfson (1968) 68 Cal. 2d 336, 343.) The fact that Plaintiff did not allege any employment contract not capable of being performed within a year is immaterial. Defendants' Answer alleges that “some” of the contracts alleged in the Complaint are subject to the statute of frauds. Defendants' are entitled to assert this defense. Further, the statute of frauds can apply to stock agre...

Excerpt: ...tion Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318; Basic Modular Facilities, Inc. v. Ehsanipour (1999) 70 Cal.App.4th 1480, 1485.) The Court also finds, based on Plaintiff, KPRS Construction Services, Inc.'s own calculations, the reasonable value of work provided is less than that owed under the contract price, such that the lien covers the reasonable value of the work provided, not the contract price. (Civil Code § 8430(a).) The issue ...

Excerpt: ...oss-Defendant and Appellant Josefina Lopez, individually and as Trustee of the Josefina Lopez Separate Property Trust Dated January 23, 2006, as prevailing parties on appeal. The motion is timely and appropriate under California Rules of Court, Rule 8.278(d)(2), and California Rules of Court, Rules 3.1702(c)(1) and 8.278(c)(1). The Court of Appeal's Opinion dated October 26, 2020 affirmed this Court's judgment, and found “[t]he HOA and Alfords ...

Excerpt: ...under the California Fair Employment & Housing Act (“FEHA”), i.e., the First, Second, Third, Sixth and Seventh Causes of Action, on the grounds Plaintiff never exhausted her administrative remedies as to those claims as required by Government Code sections 12960 and 12965(b) as to HCSG. Defendants also move for judgment on the pleadings as to the Seventh Cause of Action for negligent hiring, supervision, and retention on the grounds it is bar...

Excerpt: ...ummary judgment against Plaintiff's Complaint, Defendant asserts Plaintiff's single claim for “Negligence” fails to identify an applicable statute, to support liability. Defendant, essentially, asserts the claim amounts to an improper common law claim for negligence, for which the immunity outlined in Government Code section 815(a) applies. Defendant is correct in asserting the “Negligence” claim does not identify a statute which supports...

Excerpt: ...t or omission by Touran Zadeh, M.D. cause or contributed to plaintiff, Arghavan Rajaee's injuries and damages. 3. The 1 st COA for medical negligence is barred on the grounds that the treatment of plaintiff, Arghavan Rajaee, by the staff at Genetics Center complied with the applicable standard of care. 4. The 1 st COA for medical negligence is barred on the grounds that no negligent act or omission by Genetics Center Staff caused or contributed t...

Excerpt: ..., PHELAN lacks standing to allege these claims. Here, the FAXC alleges FDHI entered into the loan agreement and related pledge agreements with Cross-Complainants ALC and SLF and FHDI breached same. (See FACC, ¶¶ 11, 12, 33-36, see Exh. 1.) The FAXC also alleges the Loan Agreement and related Pledge Agreements between “ALC and FHDI and SLF and FHDI” contained an implied covenant of good faith and fair dealing. (See FAXC, ¶ 38.) Cross-Compla...

Excerpt: ...nt Robert Berman, HJL's CEO, contacted Arthur Cohen, founder and national managing partner of CSuite, an entity with which Plaintiff was listed. Berman informed Cohen that Plaintiff “had made unauthorized and fraudulent changes to company vacation hours records for his personal monetary gain.” After the conversation, HJL filed a cross-complaint against Plaintiff for breach of contract and breach of fiduciary duty, based on the allegations tha...

Excerpt: ...able issue with respect to same. Defendants Brite Dental (“Moving Defendant”) contends Plaintiff's entire action is time barred because Plaintiff received dental treatment of a root canal therapy and placement of the crown on tooth #30 from Moving Defendant on December 1 and 10, 2015; Plaintiff was forced to visit an emergency dental care facility due to frequent pain and loss of hearing in or about June 2016; on June 29, 2016, Plaintiff was ...

Excerpt: ...that Plaintiff had engaged in similar fraudulent conduct with other third parties and is the subject of other pending lawsuits by third parties. This information, however, does not constitute “new” “facts” or “circumstances” which “could not, with reasonable diligence, have been discovered and produced at the time of the prior motion” as required. (See Forrest v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th 183...

Excerpt: ...bdivision (c) provides: “(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 rights or safety of others. [¶] (2) ‘Oppression' means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. [¶] (3) ‘Fraud' means an intentional misr...

Excerpt: ...es Defendant L&N has its principal place of business in Los Angeles County; that Defendant LEDERER resides in Los Angeles County; and that Defendant NOJIMA resides in Los Angeles County. (See Complaint, ¶¶ 2-4.) As such, pursuant to Code of Civil Procedure section 395(a), Los Angeles County is the proper venue for this action. In Opposition, Plaintiff contends Orange County is a proper venue because attorney Keith Bruno, a partner in the law fi...

Excerpt: ...on 1089 expressly permits a party to respond to a petition for a writ of mandate by demurrer, verified answer or both. Here, along with the Amended Petition, Petitioner submits a supporting memorandum, declarations, and the administrative record. Since these documents are part of Petitioner's Petition, Amended Petition and the court's records, the court may properly consider them in ruling on this demurrer. (See Scannell v. Wolff (1948) 86 Cal.Ap...

Excerpt: ...f the date of this order. Defendant and Cross-Complainant, Jacqueline Miller (“Miller”) moves, pursuant Code of Civil Procedure sections 2031.320 and 2023.030, for an order for issue sanctions and evidentiary sanctions against Cross-Defendant Bruce Elieff (“Elieff”), or in the alternative, striking Elieff's Answer in this case and entering default against Elieff. In addition, Miller moves for an order that Elieff and Elieff's attorney, Je...

Excerpt: ... section 800(b)(2). (Bader v. Anderson (2009) 179 Cal.App.4th 775, 793 (“Bader”).) California's demand requirement under Corporations Code section 800(b)(2) requires that the plaintiff in a shareholder derivative suit “ allege [] in the complaint with particularity plaintiff's efforts to secure from the board such action as plaintiff desires, or the reasons for not making such effort, and allege[] further that plaintiff has either informed ...

Excerpt: ...g, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general.” Subdivision (b) of that statute states that a motion compell...

Excerpt: ...) is OVERRULED in its entirety. As an initial matter, the Court notes the Declaration of Marc H. Gaber, counsel for Defendant, Pearce Services, LLC (“Defendant” or “Pearce”) does not provide that counsel met and conferred concerning the grounds for demurrer pursuant to Code of Civil Procedure section 430.41. However, the e-mail dated 10-27-20, attached as Exhibit B to the Declaration of Marc H. Garber, provides, “I Just [sic] wanted to ...

Excerpt: ...revail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see CACI No. 303.) Here, the complaint alleges the following: 1. WSA and TCT entered into the Master Services Agreement on 3-27-17, attached as ...

Excerpt: ... the property in San Juan Capistrano and when Plaintiff SHAMSY took possession of the Property thereafter. (See Complaint, ¶¶ 6 and 9.) As such, the doctrine of part performance takes this case outside the statute of frauds. (Sutton v. Warner (1993) 12 Cal. App. 4th 415, 422.) Further, Family Code sections 721, 851 and 852 have no bearing on whether Plaintiffs properly pled a cause of action for breach of contract and Plaintiffs and Defendant a...

Excerpt: ...d/or employment.” (See Complaint, ¶¶ 9 and 11.) “Civil conspiracy is not an independent tort. Instead, it is “a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators wit...

Excerpt: ...o provide further responses, without objections, to Plaintiffs Fatemeh Hosseini's and Masoud Ziaie's Form Interrogatories- General-Set Two, Nos. 15.1, and 17.1, as well as an order for terminating sanctions for the repeated failure to comply with basic discovery, or in the alternative, issue sanctions, or in the alternative, monetary sanctions in the amount of $5,804.50 against R&R and its attorney of record, Philip Geurts, jointly and severally....

Excerpt: ...VERRULES the demurrer to the Second COA, and SUSTAINS WITHOUT LEAVE TO AMEND the demurrer to the Third COA. Defendant KIC's Motion to Strike is DENIED. RFJN is granted. 2nd COA (breach of the implied covenant of good faith and fair dealing): Defendant argues the “genuine dispute doctrine” is a complete defense to this claim, and applies here because Plaintiff's complaint admits the denial of coverage was based on the application of an exclusi...

Excerpt: ...dence or declarations may be filed with the motion to expunge the notice. The court may permit evidence to be received in the form of oral testimony, and may make any orders it deems just to provide for discovery by any party affected by a motion to expunge the notice. The claimant shall have the burden of proof under Sections 405.31 and 405.32.” (Code Civ. Proc., § 405.30.) Here, as of February 22, 2021, the motion is unopposed. Consequently,...

Excerpt: ...ivil Procedure section 340.5. A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred…In order for the bar…to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4 th 32, 42....

Excerpt: ...e a privilege log for all records withheld on the basis of privilege; and (3) pay monetary sanctions in the amount of $2,832.50. The Court finds Plaintiff made reasonable and good faith attempts to meet and confer to resolve the issues presented in this motion. (See Motion, Declaration of Lindsay N. Frazier- Krane (“Frazier-Krane Decl.”), ¶¶11-22, Exhs. 3-9.) The Court also finds Plaintiff has demonstrated good cause for the documents sough...

Excerpt: ...rogs (13) Motion to Deem RFAs Admitted Tentative Ruling: The Court has considered all papers filed by the parties and its own records. It rules on the 13 discovery motions brought by 4 defendants against plaintiff as follows: (1-4) MOTIONS 1 – 4, brought by River Oaks Apartments LLC 1. Compel Further Responses to Form Interrogatories General and Employment, Set 1 Defendant River Oaks Apartments' Motion is GRANTED. Plaintiff Samuel Benevides is ...

Excerpt: ...ewing a summary judgment motion. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 638.) The court first “ ‘identif[ies] the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.][¶].' ” (Ibid.) Second, the court “‘determine[s...

Excerpt: ...ing this motion as a Plaintiff and seeking relief relative to her complaint, or which complaint. Indeed, the motion does not refer to any operative pleading other than Abernethy's. It appears the operative complaint when this motion was filed (on 10-15-2020) was the Second Amended Complaint by Wayne A. Hagendorf, as Trustee of the Butch Trust filed on 11-26-2019. On 11-30-2020 Judge Delaney sustained portions of the demurrer to the SAC (see ROA 5...

Excerpt: ...bitration and to Stay the Action is GRANTED as follows. The Court finds STRECKER met his initial burden of establishing an agreement to arbitrate exists between him and Plaintiffs/Cross-Defendants Mohtasham Shalikar and Maria Shalikar (collectively “SHALIKARS”). The parties executed the Legal Services Agreement and section 14 thereof contains an agreement to arbitrate “any dispute” between them. (See Strecker Decl., ¶, Exh. A, section 14...

Excerpt: ...ted therewith. That information may be subject to supplementation does not excuse a party from providing a complete and straightforward response. No. 8.8 – GRANT as to (b), (d). That information may be subject to supplementation does not excuse a party from providing a complete and straightforward response. No. 50.1 – GRANT. The response is non-responsive. No. 50.2 – GRANT. The response is non-responsive. Sanctions are awarded in the amount...

Excerpt: ...neys engaged in “abuse of their ‘Litigation Privilege'” (Complaint page 2:10-11.) At page 8:8-11, Plaintiff pleads that “All of these, and more, vicarious and egregious actions were done to an Elderly (going on 80 years old) male, in poor and declining health senior citizen and in a Related and Relevant case, the Sexual harassment, of a female senior citizen whom lives in a so-called ‘safe and secure' senior citizen retirement community...

Excerpt: ...the grounds Defendants had no basis to move to disqualify counsel in this matter, and filed a baseless motion to annoy, harass, and increase the litigation costs in this matter in violation of Code of Civil Procedure sections 128.5 and 128.7. In all civil cases, the judge may order a party or counsel, 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 fai...