Excerpt: ...closure); (b) knowledge of falsity (or ‘scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.' [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “Fraud may be pled specifically and general and conclusory allegations do not suffice. (Id. at p. 645.) To survive demurrer, plaintiff must plead facts that “show how, when, where, to whom, and by what means the represen...

Excerpt: ... Kolodny is the former attorney of plaintiffs Kimberly Jones and 150 Newport Center Drive, LLC (collectively, “Plaintiffs”), and that Barnes & Thornburg is his law firm. Defendants argue Plaintiffs have waived the attorney-client privileged based on Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal.App.3d 1142. However, Chicago Title does not support a finding of waiver here. Unlike the attorney in Chicago Title, Kolodny and his law fir...

Excerpt: ...igation and possible criminal proceedings. A court may stay discovery involving civil defendants facing possible criminal prosecution involving the same facts as the civil action. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688-690.) Defendants Ulices Rangel and Keren Jemima Zuniga (“Moving Defendants”) show that, they have been, and are, subject to a criminal investigation, the basis of which relates to plaintiff. (Declaration...

Excerpt: ...at the latter should procure additional or different insurance coverage.” (Fitzpatrick v. Hayes (1997) 57 Cal.App.4 th 916, 927.) “The rule changes, however, when-but only when- one of the following three things happens: (a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided (as in Free, Desai and Nacsa), (b) there is a request or inquiry by the insured for a particular type or extent of coverage (as...

Excerpt: ... 6310 (Issue Nos. 1 to 3), Third Cause of Action for Violation of Ralph Act in Violation of Civil Code § 51.7 (Issue Nos. 4 to 6), Fourth Cause of Action for Interference in Violation of California Family Right Act (Issue Nos. 7 to 11), Fifth Cause of Action for Violation of Labor Code § 1102.5 (Issue Nos. 12 to 14), Sixth Cause of Action for Discrimination in Violation of FEHA (Issue Nos. 15 to 19), Seventh Cause of Action for Retaliation in V...

Excerpt: ...lton and nonparty Lisa Helton's Claim of Exemption is GRANTED in part. Evidentiary Objections: Plaintiff's Objections to the Declaration of Kim Helton are overruled. Plaintiff's Objections to the Declaration of Joey P. Moore are sustained as to Nos. 1, 4, 5 and 6, but overruled as to Nos. 2 and 3. Plaintiff's Applications: Plaintiff Case, Ibrahim & Clauss, LLP (“Plaintiff”) applies, pursuant to Code of Civil Procedure section 483.010, for a r...

Excerpt: ...n Center (ROA 99) 8. Golden Care dba Empress Rehabilitation Center (ROA 101) County Villa Belmont Heights Healthcare Center (ROA 100) The subpoenas may be divided into 2 categories: 1. Subpoenas to prior or current employers (Motions 1, 2, 4, 5, 6, 8, 9); and 2. Subpoenas to medical providers (Motions 3, 7) MOTIONS 1, 2, 4, 5, 6, 8, 9: Plaintiff moves to quash deposition subpoenas to past or current employers: Telecare Corporation; St. Francis Me...

Excerpt: ...nt to Civil Code section 1793.2(a)(3). (FAC ¶¶ 97, 98.) Defendant cites no authority which requires further identification of the repair facility, literature or replacement parts at issue. 5th COA: The Demurrer to the Fifth COA (Breach of the Implied Warranty of Merchantability) is SUSTAINED with leave to amend, on the basis the claim is barred by the applicable statute of limitations and Plaintiffs have insufficiently alleged tolling. The four...

Excerpt: ... by defendant, and (4) damages. (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.) To the extent that Rodarte alleges a breach of contract based on her standing as a third- party beneficiary of a contract between Spectrum, on the one hand, and Aliso Villas and/or Accell, on the other hand, the COA fails because the first and second elements are not adequately alleged. To the extent Rodarte alleges a breach of contract based on her standing as a dir...

Excerpt: ...Defendant's arguments in support of this demurrer are persuasive on the record presented. Uncertainty: Defendant contends the FAC is uncertain, ambiguous and unintelligible because Plaintiff fails to identify the location of the road easement specifically at-issue and identify which portions need to be repaired and/or allege if Defendant is a beneficiary of the B-2 easement and which portions of the road she travels which would require her contri...

Excerpt: ...oncerns those RFAs, within 14 days after service of notice of this order. Plaintiff Miguel Cuevas (“Plaintiff”) moves for an order compelling Defendant Jae Yon Han (“Defendant”) to provide further responses to RFA Nos. 1, 2, 3, 4, and 5, and to Form Interrogatory 17.1 (collectively “subject requests”), and imposing monetary sanctions of $4,588.00 against Defendant and her counsel. Defendant opposes the motion on the grounds that her r...

Excerpt: ... Complaint Pursuant to Code of Civil Procedure section 425.16 as to the first and eighth causes of action. The Court DENIES the motion as to the second through seventh causes of action. Defendant's Oversized Memorandum: Initially, the Court notes defendant has filed a memorandum that is seven pages over the 15-page limit, without permission from the Court. (California Rules of Court, Rule 3.1113(d).) Accordingly, the Court considers only the firs...

Excerpt: ...f certain documents. The Court declines to award costs of proof of Requests for Admission, Set One, Nos. 2 through 6. Plaintiff does not establish that he proved the truth of the matters asserted in each of these requests. (Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 521.) Costs of proof are recoverable only where the moving party actually proves, by introducing evidence, the matters that are the subject of the requ...

Excerpt: ...y imposition of personal jurisdiction.” (Mihlon v. Sup.Ct. (Murkey) (1985) 169 Cal.App.3d 703, 710.) The burden is on the plaintiff to demonstrate by a preponderance of the evidence that all jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Sup.Ct. (Grosh Scenic Studios) (1988) 206 Cal.App.3d 1222, 1232.) Here, Plaintiff argues the Majestic Defendants purposefully directed their actions to California because they assumed liabilit...

Excerpt: ...Equipment being purchased whether new or used; and Issue 2: Defendant Ordway Corporation dba Print & Finishing Solutions had a duty (contractual obligation) to disclose to Plaintiff Pars Publishing Corp. dba Grapheex pursuant to the Equipment Purchase Agreement dated November 17, 2014 the condition and all prior usage of the Equipment being purchased whether new or used; and Issue 3: Plaintiff Pars Publishing Corp. dba Grapheex is entitled to res...

Excerpt: ...the requested information is relevant and not overbroad. (2) Plaintiff Jeffery Baker's Motion to Compel Further Responses to Special Interrogatories, Set 1 (Nos. 30, 33, 34, 35) is GRANTED in part; DENIED in part.  Special Interrogatory No. 30 – GRANT. Defendant has failed to justify its objection that the interrogatory is “unduly burdensome.” To the extent Defendant intended to invoke CCP § 2030.220, it failed to do so.  Special Int...

Excerpt: ...on 452(d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The Court GRANTS Plaintiff's request for judicial notice of Exhibits A through C pursuant to Evidence Code section 452(d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal...

Excerpt: ...e entered into on April 22, 2019 between Premier, Trust, Inc. (“Plaintiff”) and Mary Fike, erroneously sued as Mary Campbell, individually and as Trustee of the Mary Campbell Revocable Family Trust and Marital Sub-Trust of the Hugh R. Campbell Revocable Family Trust (“FIKE”). (See Decl. of Allinger, ¶19, Exh. 6.) The Settlement Agreement contains the following provisions: “5. Modification. This Agreement may not be amended, canceled, r...

Excerpt: ...quest for Judicial Notice as to the Stipulation and Order Regarding Trial Continuance and Discovery Management, signed February 10, 2020 (“Stipulation and Order”), pursuant to Evidence Code section 452(d). As an initial matter, the Court finds it is unclear from the Stipulation and Order whether the parties ever agreed to have a discovery referee rule on a discovery motion pursuant to Civil Code section 3295 as the Declaration of Sam L. McDer...

Excerpt: ...5.) As to the 4 th COA (Wrongful Death), this cause of action is sufficiently pled. Although Plaintiff does not identify the specific cause of death, the SAC nonetheless alleges that “DEFENDANTS' negligence and carelessness as described herein above” was the direct and proximate cause of Decedent's death. (See Para. 42 of SAC.) This is sufficient to allege causation for purposes of demurrer and Defendant cites no legal authority that this cau...

Excerpt: ...result, Plaintiff agreed to draft a Second Amended Complaint (“SAC”), which would cure the issues raised in the Demurrer. On 9-1-2020, the Court continued the Demurrer to 10-20-2020. On 10-8-2020, counsel for Moving Defendants filed a Second Supplemental Declaration indicating counsel for the parties agreed plaintiff would have until 9-12-2020, to submit to defense counsel the proposed SAC, and that as of 10-8-2020, plaintiff's counsel had re...

Excerpt: ...defendant's breach, and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1178.) To allege the existence of a contract, the pleading must show “a voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing.” (Robinson v. Magee (1858) 9 Cal. 81, 83.) Moreover, the complainant must allege its performance as a condition predi...

Excerpt: ...ross- Complainant, Richard Mellen 5. Defendant, Dean Lasso DBA Artistile's Motion to Tax Costs of Plaintiff, Paul Anthony (1) Off Calendar – no hearing will be held. Plaintiff, Paul Anthony's Motion for Attorney Fees is Continued to 11-3-2020, Dept. C11, at 2 pm. Plaintiff, Paul Anthony (“plaintiff” or “Anthony”) seeks an order awarding costs and attorney fees in the total amount of $627,634.50 against Defendant, Dean Lasso DBA Artistil...

Excerpt: ...dent may be granted where it is shown he or she lacks knowledge or involvement in the litigation, and such deposition is being sought prior to plaintiff's exhaustion of less intrusive means of discovery. Such “high level” (or “apex”) depositions “raise a tremendous potential for discovery abuse and harassment.” (Liberty Mut. Ins. Co. v. Sup.Ct. (Frysinger) (1992) 10 Cal.App.4th 1282, 1287-1288 [analogizing to federal cases and citing ...

Excerpt: ...de section 452(c). The Court takes judicial notice of the existence of these documents and their legal effect. but not the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) Motion: In Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4 th 919, 923, the Court explained, “[i]f a purported assignment necessary to the chain by which the foreclosing entity claims that pow...

Excerpt: .... The Court notes the FAA “applies where there is ‘a contract evidencing a transaction involving commerce.'” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277 [quoting 9 USC § 2]. Here, there is no FAA language in the contract, and no showing the contract at issue involves interstate commerce.] Defendants bear the burden to establish a valid agreement to arbitrate. (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal...

Excerpt: ... & Elec. Co. (2009) 45 Cal.4th 1151, 1157.) It is undisputed there is no contract between Tesla and HOI. Therefore, although HOI fashions its First Cause of Action as one for implied indemnity, it is actually a claim for equitable indemnity. Equitable indemnity applies only among defendants who are jointly and severally liable to the plaintiff. (GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 719.) Further, with limited...

Excerpt: ...th 1148, 1154.) Primary assumption of the risk applies when, due to the nature of the activity and the relationship of plaintiff and defendant to that activity, defendant's ordinary duty of care is negated; i.e., defendant owes no duty to protect plaintiff from the particular risk of harm that caused the injury. (Knight v. Jewett, supra, 3 Cal.4th at 314-315.) The general legal duty owed between coparticipants in sporting and similar recreational...

Excerpt: ... 2 is OVERRULED and Objection Nos. 3-9 are SUSTAINED. Plaintiff's Evidentiary Objections: The Court declines to rule on Plaintiff's objections to Defendants' evidence as they are not material to the disposition of the motion. Burden of Proof: A “party moving for summary judgment [or adjudication] bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. A...

Excerpt: ...facts sufficient to constitute a cause of action in violation of Code of Civil Procedure section 430.10(e); and to the Sixth COA (Sexual Harassment) against the District fails to state facts sufficient to constitute a cause of action in violation of Code of Civil Procedure section 430.10(e). Defendant's demurrer is sustained with 20 days leave to amend in its entirety. (2) To the extent the Motion to Strike is not rendered MOOT, it is granted wit...

Excerpt: ...e exclusive means of doing so is pursuant to Code of Civil Procedure section 1286 et seq. Petitioner argues that her cause of action does not fall within Code of Civil Procedure section 1286 because her arguments concern the pre-arbitration process and were not addressed in arbitration. Specifically, Petitioner points to Respondent's failure to follow the procedures set forth in Public Safety Officers Procedural Bill of Rights Act (POBRA), specif...

Excerpt: ...nd out via an application on their individual smart phones, and recording the time employees clocked in and out as well as the employee's physical location at the time he or she clocked in and out. (Cross-Complaint, ¶ 11.) The Cross-Complaint also alleges cross-complainant paid cross-defendant according to the hours and time each recorded in the time recording system, but cross-complainant discovered cross-defendants had falsified their daily ti...

Excerpt: ... of the existence of these documents, the Court declines to take notice of the truth of the contents contained therein. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564; Herrera v. Deutsche Bank Nat'l Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Initially, the notice of motion does not request or mention the removal of Gann as a director for cause under Corporations Code sections 5227(a) and 12363. Rather, this specific request is first made i...

Excerpt: ...nlarge the issues in the litigation; and (4) the reasons for intervention outweigh any opposition by the parties presently in the action. [Citation.]” (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.) Proper Procedure: Proposed Intervenors timely filed their motion and submitted their proposed pleading in accordance with Code of Civil Procedure section 387(c). Proposed Intervenors properly seek to file an Answer in Intervent...

Excerpt: ...n is against all cross-defendants. Code of Civil Procedure section 430.10(f) provides a defendant may demur on the ground the pleading is uncertain. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal App.4th 612, 616.) Demurrers for uncertainty “are granted only if...

Excerpt: ... alleged contract, or even identify the parties to the contract. However, the essential terms of the contact are adequately alleged, i.e., Plaintiff agreed to lend Defendant $300,000 and Defendants promised to repay the $300,000 with interest. The parties to the contact are identified as Plaintiff, as the lender, and Defendants, as the borrowers. While Defendants also contend it is unclear who spoke with Plaintiff to discuss the terms of the cont...

Excerpt: ...r dismissal of the action upon completion of Defendants obligations thereunder; Defendants would pay Plaintiff the total amount of $170k in monthly installments of $5k, starting on 3-15-2020 and on each 15th day of each month thereafter until 3-15-22; and In the event Defendants failed to perform their obligations under the MOU, it would constitute a material breach; that Defendants would have a 45-day cure period of any material breach; and if D...

Excerpt: ...Shah (“Plaintiff”)'s Motion to Compel Defendant S&S Restaurant Venture, LLC (“S&S” or “Defendant”)'s Further Response to Request for Production of Documents, Set One (“RPD), pertain to RPD Nos. 3-7, 9-11, and 17- 19. Plaintiff contends Defendant has not produced the responsive documents and thus, should be ordered to provide further responses. Defendant, however, represents that a verified Amended Reponses to the subject discovery r...

Excerpt: ...st, second, third, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth COAs for failure to state fact sufficient to state a cause of action. The Court overrules the demurrer to the first, second, third, fifth, sixth, seventh, eighth, tenth, eleventh, and twelfth COAs based on uncertainty. Plaintiff's objections to the August 8, 2019, Bill of Sale attached as Exhibit A to the Declaration of Anya J. Goldstein are SUSTAINED. (1) DEMURRER TO ...

Excerpt: ...ies, Set One, No. 1, and Request for Production, Set One, Nos. 5, 9, 11, 12, 45, 15, 16 and 17, without objection, within 10 days. Monetary sanctions in the amount of $1,220.00 are imposed against Plaintiff and his counsel, payable within 30 days. The notices of the motions were timely given on 2-3-2020, within the time agreed upon by counsel. (See Motion, Grandy Decl., ¶ 10, Exh. J.) The motions are also accompanied separate statements and a de...

Excerpt: ...nell Great Lakes, LLC (“Great Lakes”) (collectively “defendants”) and judicially notices Exhibit 1 pursuant to Evidence Code section 452(d), Exhibits 2 through 8 pursuant to Evidence Code sections 452(c), (d) and (h), and Exhibits 9 and 10 pursuant to Evidence Section 452 (d) and (h). The Court SUSTAINS defendants' objection to the Declaration of John Risso. The Court OVERRULES Plaintiff, Maria Angelica Alvarez's objections to the Declara...

Excerpt: ...Code section 11350(a).” On 4-16-20, Defendants filed supplemental papers. Defendants concede that HGH is not an “anabolic steroid” and not specifically listed as a “controlled substance” under 21 U.S.C. §§ 802(41)(C) or 812(c) Schedule 3. Nor does HGH require a prescription pursuant to Health & Safety Code § 11350(a). However, in their supplemental brief, Defendants cite new authority – 21 U.S.C. § 333(e) – which indicates it is...

Excerpt: ...th COA is GRANTED. With respect to the Fourth, Seventh and Eighth COAs the Motion is GRANTED, on the sole basis Plaintiff conceded there are no triable issues as to these claims. (Notice of Errata (ROA No. 112)). As to the First COA (Retaliation), Defendants failed to negate Plaintiffs' prima facie claim for retaliation in violation of FEHA. Defendants challenged Plaintiff's claim to the extent it relied on advocacy for Cheryl McElwain; however, ...

Excerpt: ...ises for employment positions and available properties to both in and out of state individuals; and is a Delaware corporation with its principal place of business in Addison, Texas. (See Cassidy Decl., ¶ 3.) In Opposition, Plaintiffs do not present any legal argument as to the applicability of the FAA to any arbitration agreement. However, Defendant did not present any evidence that the work performed by each Plaintiff involved interstate commer...

Excerpt: ...(“Defendant” or “ProActive”) paid Oscar and/or Rita, either on a W2, K1, or 1099, during any year wherein Oscar directly competed with Plaintiff while acting as its employee and agent. ProActive objected to these interrogatories on the grounds of, among other things, the right of privacy of Oscar and Rita. “The right of privacy is an “ ‘ “inalienable right” ' secured by article I, section 1 of the California Constitution. [Citat...

Excerpt: ... Motion for Summary Adjudication is DENIED as to first, fourth, sixth, ninth, and tenth causes of action. The Motion for Summary Adjudication is GRANTED as to the seventh, and eighth causes of action. As an initial matter, the Court notes that plaintiff's opposing separate statement fails to comply with Code of Civil Procedure section 437c(b)(3), which requires each material fact the opposing party contends is disputed be followed by reference to...

Excerpt: ...this action, as requested by Defendants. (Evid. Code, § 452(d).) Sur-Reply and Response thereto: Plaintiff's “Sur-Reply” and Defendants' Response thereto are filed without first obtaining leave from the Court. Moreover, they essentially reiterates the arguments made in the moving and opposing papers, in addition to arguing facts outside the pleading. Thus, they are disregarded and not considered. Meet and Confer: The Declaration of Gregory J...

Excerpt: ...es not take judicial notice of the truth of the matters which might be deduced therefrom. (See, Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) The Court GRANTS Plaintiff's request for judicial notice of Exhibits 2, 4, and 5 pursuant to Evidence Code section 452(d). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The ...

Excerpt: ...at judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc. § 1008(a).) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 213.) Here, defendants do not present new or different facts or circumstances; instead they argue...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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