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

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

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

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

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other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected...”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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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