Excerpt: ...t the complaint “arises from” defendant's constitutionally-protected free speech or petition activity. (Code Civ. Proc. §425.16(b); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Governor Gray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) Once the defendant makes such prima facie showing, then the burden shifts to the plaintiff to establish a “probability” of prevailing o...

Excerpt: ...ling), the Demurrer is SUSTAINED without leave to amend. Defendants argue Plaintiff cannot state a viable COA for breach of implied covenant of good faith and fair dealing because Plaintiff has not alleged facts showing his own performance or excuse for nonperformance. Plaintiff does not rebut this argument, thereby conceding the same. In addition, Plaintiff's COA is based on the allegation that the loan modification applications were improperly ...

Excerpt: ...lect. 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…. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six...

Excerpt: ...ufficiently established a probability of prevailing on the merits of its claims. This litigation arose following the default by Defendant American Life Capital, LLC (“ALC”) on a multi-million dollar loan secured loan made by Plaintiff to Defendant ALC in 2012. (See Complaint; see also Rivin Decl., ¶ 2.) Here, Plaintiff correctly notes this Court already found Plaintiff was likely to succeed on the merits of its claims when it granted Plainti...

Excerpt: .... (Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938-939; Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439.) In addition, “[t]he doctrine [of unjust enrichment] applies where plaintiffs, while having no enforceable contract, nonetheless have conferred a benefit on defendant which defendant has knowingly accepted under circumstances that make it inequitable for the defendant to retain the benefit without paying for its value. The...

Excerpt: ...n matter”) bars Cross-Complainants from obtaining the same easements the Sloan plaintiffs obtained. However, there is no prior judgment against Cross-Complainants in favor of Cross- Defendant finding the Cross-Complainants do not have an easement, i.e., the prior judgments made no determination of whether Cross-Complainants have easements. (See Cross-Defendant's RFJN, Exh. 1.) Because the issue of Cross-Complainants' easement rights was not pre...

Excerpt: ...l investigation and analysis of the Electrical System Defect plaguing Plaintiff's vehicle and establishing Defendant knew of such defect and knew it could not repair it, but failed to repurchase the vehicle. Although Plaintiff is correct that Defendant did not substantiate its object based on burden, information regarding other customers' vehicles and bulletins and recalls that do not apply to Plaintiff's vehicle are not relevant to the issues in...

Excerpt: ... section 473.5, but provides no argument for this proposition. On the other hand, defendant cites to Stevenson v. Turner (1979) 94 Cal.App.3d 315 and Plotitsa v. Superior Court (1983) 140 Cal.App.3d 755, for the proposition that when the default is void, defendant can seek relief to set the default aside at any time. Defendant appears to argue the default is void on its face, in which case the motion may be made at any time. (Schwab, supra, 114 C...

Excerpt: ...utions in connection with a public issue,” and specifically constitutes “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. (Code Civ. Proc., § 425.16(e)(2).) Statements and writings made “in connection with” judicial proceedings are covered by section 425.16. (Briggs v. Eden Council for ...

Excerpt: ...of the documentation within five business days of receipt. In its initial acknowledgment of receipt of the loan modification application, the mortgage servicer shall include the following information: (1) A description of the loan modification process, including an estimate of when a decision on the loan modification will be made after a complete application has been submitted by the borrower and the length of time the borrower will have to consi...

Excerpt: ...rsy” and is claiming anxiety, insomnia, and post-traumatic stress disorder as a result of the automobile accident that is the subject of her complaint. Defendant provides specific facts showing that its request to conduct a psychiatric examination is directly relevant to plaintiff's mental distress claims. Plaintiff is to submit to an independent psychiatric examination with Dr. James High within the next 30 days, as follows: Dr. James High, M....

Excerpt: ...tionate liability; fails to inform the Court how the $200k settlement to the minor Plaintiffs will be allocated; and fails to provide any evidence of JASMINE's financial condition and insurance policy limits. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488,499.) The Motion states generally that the parties considered the approximation of Plaintiff's recovery as well as JASMINE's proportionate liability and insurance coverage issu...

Excerpt: ...sues. There is a three-step process in reviewing a summary judgment motion. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 638 (“Hansra”).) 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. [Citatio...

Excerpt: ...e is GRANTED in part, DENIED without prejudice in part. As to Form Interrogatory Nos. 15.1, 50.1, 50.2, 50.3, and 50.5, the Motion is GRANTED.  Form Interrogatory No. 15.1: Defendant's response to Interrogatory No. 15.1 is in violation of Code of Civil Procedure section 2030.220 as it is not complete and straightforward. Defendant's Answer asserted 51 affirmative defenses; yet Defendant's response to this interrogatory fails to address each su...

Excerpt: ...erg v. County of Plumas (2005) 133 Cal. App. 4th 1, 20 [failure to oppose issue raised in demurrer deemed abandonment of the issue].) Plaintiffs are to file any amended Complaint within 15 days service of notice of this order. (2) Motion to Furnish an Undertaking: The Court GRANTS the unopposed Motion for Order Requiring Out-of-State Plaintiff to File Bond of $10,000. Based on the Complaint, Plaintiffs are out-of-state residents; thus, they meet ...

Excerpt: ...osition, and shall be accompanied by a meet and confer declaration under Section 2016.040.” (Civ. Proc. Code § 2025.480.) This rule applies to business records subpoenas. (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2018) ¶ 8:609.1.) The objections or other responses to a business records subpoena are the “deposition record” for the purposes of measuring the 60-day period for a motion to compel. (Unzipped ...

Excerpt: ...nt identified Life Care Centers of America, Inc. and provided the place of incorporation and/or the address of the company's principal place of business. Plaintiff's interrogatory indicates the term identify shall mean “with respect to company, state the name of the company, the place of incorporation of the company, and the address of the company's principal place of business.” While Plaintiff contends Defendant has failed to identify which ...

Excerpt: ...y regarding his medical treatment and medical records. The subpoena seeks the following documents from Hoag: “Complete medical records from April 7, 2018 through July 7, 2018, including but not limited to any records/documents that may be stored digitally and/or electronically: documents, correspondence, correspondence from the patient, intake forms, medical reports, doctor's entries, nurse's notes, office notes, progress reports, monitor strip...

Excerpt: ...its ruling denying defendant's Motion to Compel Arbitration. The Court concludes it may rule on the pending discovery motions. The motions concern discovery, which was not shown by defendants to affect the effectiveness of any ruling by the Court of Appeal. As noted in Varian Medical Systems (2005) 35 Cal.4 th 180, 190, “an appeal from the denial of a motion to compel arbitration automatically stays all further trial court proceedings on the me...

Excerpt: ... objecting party's opposition”. The Court SUSTAINS only Objection Nos. 8 and 10 and OVERRULES all other objections to the Feeney Declaration. Defendant CHELSEA's Evidentiary Objections: The Court SUSTAINS only evidentiary objection No. 8 which MOOTS evidentiary objection Nos. 9 and 10. Issue No. 1: As to the 1 st COA (breach of fiduciary duty), the Court finds that CHELSEA failed to establish that it did not owe a fiduciary duty to Plaintiffs a...

Excerpt: ...hout first obtaining a determination of good cause from the Court. The hearing is noticed for 6-25-19, and trial is set for 7-22-19. Without a finding of good cause from the Court, the notice of hearing was invalid. (Robinson v. Woods(2008) 168 Cal.App.4th 1258, 1268.) The Court's independent research has not revealed any authority to support the proposition that the filing of an opposition and appearing to argue at the hearing by the party oppos...

Excerpt: ...on. (Code Civ. Proc., §36(a)(2).) Attorney Sobati's Declaration does not provide the required “diagnosis or prognosis” of Plaintiff's condition required by Code of Civil Procedure section 36.5. However, given the seriousness of Shirley's injury, illnesses, and her age, the Court, in its inherent discretion to avoid prejudice to either party, sets the trial for 1-6-20, Dept. C11, at 9 am. (Code Civ. Proc., §36(e).) Any pre-trial motions and ...

Excerpt: ...tiff has submitted the declaration of her counsel, Walter Mitchell. Mr. Mitchell declares that neither he nor his office ever received a copy of the 998 offer. (Mitchell Decl. at ¶¶ 1, 2.) He also states there was no mention of the 998 offer at the MSC on 2-21-19. (Id. at ¶ 3.) Plaintiff also submits her own declaration stating no 998 offer was presented to her or mentioned to her by her attorney pre trial, and the first time she learned of th...

Excerpt: ...atories is GRANTED, in part, as follows. Plaintiff Jeff Schwartz: As to Form Interrogatory No. 17.1, the Motion is DENIED. Plaintiff's response to RFA Nos. 40-44 are code compliant. Plaintiff did not refuse to apply the provided definition of the term “SHORT SALE.” (SeeAnalysis below re RFAs.) As to Special Interrogatory No. 46, the Motion is DENIED. This request is overly broad in scope and time frame. As to Special Interrogatory No. 48, the...

Excerpt: ...of James Kim is OVERRULED Defendants' Marshall B. Ketchum University, Edward Fisher, and Monica Trivedi's Motion for Summary Judgement is DENIED. Their Motion 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 stat...

Excerpt: ...et of Requests for Production is DENIED. (1) Form Interrogatories: Plaintiffs seek Defendant Brennan's further responses to Form Interrogatory Nos. 15.1, 17.1, 50.1-50.6. Interrogatory No. 15.1: This interrogatory asked the factual basis, identification of any supporting documents, and witnesses for all asserted affirmative defenses.  Defendant's responses are inadequate, incomplete, and/or evasive; and his boilerplate objections appear to be ...

Excerpt: ...s no collusion, fraud, tortious conduct or effect to injure the non-settling defendants; that Defendant BONILLA will pay $29k of the $30k GEICO auto insurance policy limits to GERMAN PLAINTIFFS in exchange or settlement of all claims; and that Defendant BONILLA will pay $1k to the ESCAMILLA PLAINTIFFS in exchange for a release of all claims. (See Hodge Decl., ¶¶ 5 and 6.) Defendant BONILLA also presented evidence that he has no appreciable asse...

Excerpt: ...one must be a party to invoke an arbitration agreement: “there are six theories by which a nonsignatory may be bound to arbitrate: (a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.” (Young Seok Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513.) “‘By relying on contract terms in a claim against a nonsignatory defendant, even if not exclusively, ...

Excerpt: ...uests for Production is DENIED. (1) Form Interrogatories: Plaintiffs seek Defendant Brennan's further responses to Form Plaintiffs seek Defendant Brennan's further responses to Form Interrogatory Nos. 15.1, 17.1, 50.1-50.6. Interrogatory No. 15.1: This interrogatory asked the factual basis, identification of any supporting documents, and witnesses for all asserted affirmative defenses.  Defendant's responses are inadequate, incomplete, and/or ...

Excerpt: ...covery referee are: multiple voluminous discovery motions involving various issues of privilege, and third parties. The Court also believes it is likely, given the virtually unbroken chain of discovery disputes in this case, that more such disputes will be forthcoming before trial. The parties are directed to meet and confer before 7-1-19, to determine whether they (i) agree to the appointment of a discovery referee pursuant to Code of Civil Proc...

Excerpt: ...tion.” Plaintiff, however, in Opposition presented evidence that there is no pending criminal action against Defendant and the O.C.D.A. rejected the case and does not intend on filing any criminal action against Defendant. (See Kazerouni Decl., ¶¶7-8, Exh. A.) As such, based on the evidence, it is highly unlikely that Defendant will be faced with a criminal action. Further, as to Defendant's contention concerning his right to exercise his 5 t...

Excerpt: ...exceptions to the general rule that one must be a party to invoke an arbitration agreement: “there are six theories by which a nonsignatory may be bound to arbitrate: (a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary.” (Young Seok Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513.) “‘By relying on contract terms in a claim against a nonsignatory ...

Excerpt: ...en by submitting the factually devoid discovery responses of Defendant Douglas Fir Holdings, LLC dba Huntington Valley Healthcare Center, there is reason to deny without prejudice to allow Defendant to obtain the necessary evidence to create a triable issue of material fact. As Plaintiff's motion establishes, within days of Defendants Answering the Complaint, Plaintiff served RFAs. Defendant responded on January 4, 2019 and by February 27, 2019 (...

Excerpt: ... such, Defendants have no evidence of an “agreement to arbitrate. Accordingly, the Motion is DENIED, without prejudice. Defendants will need to re-file the Motion and properly lay the foundation and establish that Plaintiff signed the Retainer Agreement. The Court SUSTAINS Plaintiff's objection to paragraph 5 of Mr. Falcioni's declaration in support of the Motion. Based on same, Defendants have no evidence establishing that a valid agreement to...

Excerpt: ... substituted into this case on behalf of Plaintiff; and after his review or the currently-operative First Amended Complaint (“FAC”), he determined certain language in the existing pleading needed to be cleaned up, certain language pertaining to the interrelationship of the Defendants needed to be added and/or clarified, and the evidence in this case gave rise to valid causes of action for Unfair Competition under California Business and Profe...

Excerpt: ...s not timely. Plaintiffs provide no information as to when the responses/verifications were served, no calculations as to dates, and no legal authority. This motion must be served within 45 days after service of a verified response (extended if served by mail, overnight delivery or fax or electronically; see Code Civ. Proc., §§ 1010.6(a)(4)). Otherwise, the demanding party waives the right to compel any further response to the section 2031.010 ...

Excerpt: ...rectly relevant to a cause of action or defense, i.e., that it is essential to determining the truth of the matters in dispute. (Britt v. Sup.Ct. (San Diego Unified Port Dist.)(1978) 20 Cal.3d 844, 859-862; Harris v. Sup.Ct. (Smets) (1992) 3 Cal.App.4th 661, 665 (citing text) (disapproved on other grounds in Williams v. Sup.Ct. (Marshalls of CA, LLC) (2017) 3 Cal.5th 531, 557 & fn. 8).)” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial ...

Excerpt: ...self state with any specificity, which discovery requests Plaintiff seeks a further response, leaving the Court to sift through 420 pages of documents to make such a determination. In the future, the Court orders the parties to identify the specific discovery requests at issue in the notice of motion. (1-2) On Plaintiff's Motion to Compel Further Responses to Special Interrogatories, Set 1 and Form Interrogatories, Set 1, the Court rules as follo...

Excerpt: ... exhibits are ordered stricken as irrelevant to the pending Petition to Confirm Arbitration Award and Petition to Vacate Arbitration Award: 1. Exhibit 2 to Friedlander Decl. (Letter from TGS to Brown dated May 18, 2005); 2. Exhibit 3 to Friedlander Decl. (Letter from TGS to Brown dated June 18, 2010); 3. Exhibit 6 to Friedlander Decl. (Letter from TGS's counsel to Brown's former counsel dated April 19, 2016); 4. Exhibit 9 to Friedlander Decl. (Br...

Excerpt: ...]fter a trustee's deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.5, 2923.7, 2924.11 or 2924.17…” Defendant presents no judicially noticeable documents which demonstrate Plaintiff has not suffered “actual economic damages,” sufficient to support ...

Excerpt: ...udicial notice of “Alere's Notice of Ruling on the Motion to Dismiss,” yet Exhibit F appears to be a “Request for Statement of Damages.” Moving Party to give notice. Defendant Hilton argues the action should be dismissed because of Plaintiff's failure to serve Dr. Hilton within 2 years of filing the Complaint. (Motion pp. 7-8.) The Complaint was filed on 6-22-16, naming Dr. Hilton as a defendant. (ROA 2.) Dr. Hilton was not served until 8...

Excerpt: ...facts demonstrating Experian's breach, i.e., Experian's unilateral termination of the agreements did not constitute a breach of any agreements. Specifically, according to Section 2 of the Standard Terms and Conditions, the Agreement “shall continue in effect until the termination of the expiration of all Schedules issued pursuant to this Agreement.” (FAC, Exh. A.) In turn, Section 2 of the Consumer Services Schedule states that Experian may t...

Excerpt: ... the Motion should be a motion to compel further responses under Code of Civil Procedure section 2030.300 rather than a motion under section 2030.090. Accordingly, the Motion should have been accompanied by a separate statement. (See Cal. Rules Ct., Rule 3.1345(a) [“Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement”].) No separate statement was filed. Given t...

Excerpt: ...med abandonment of the issue].) The Court notes that the FAC is uncertain in that it alleges the “separate oral agreement” involved “a building, a business, and other assets” (FAC ¶¶ 4, 8); yet, it also alleges that “Debbie and Melinda realized that the sale of the business and other assets was separate, apart, and additional to the sale of the building” (FAC ¶9B). Moreover, Plaintiff alleges in her Opposition that the “separate ...

Excerpt: ... 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 to set forth any evidence...

Excerpt: ...ited any legal authority holding Code of Civil Procedure section 2025.610 precludes a “new party” or a party who is newly named in a different capacity from taking the deposition of other parties in a pending action. Further, even assuming arguendo Code of Civil Proceduresection 2025.610 applied, BONILLA established good cause for a “second” deposition of LILLY since BONILLA as a plaintiff, has different legal theories against LILLY. The ...

Excerpt: ...s party is OVERRULED. “[A] suspended corporation may not prosecute or defend an action in a California court.” (See Timberline, Inc. v. Jaisinghani (1997) 54 Cal.App.4 th 1361, 1365). First, while the allegations in the Complaint continuously reference bankruptcy proceedings, suggesting a potential jurisdictional problem or issues of standing, the Court has been provided with insufficient information, by which to determine whether any claim i...

Excerpt: ...y is to give notice. Plaintiff Seeks a Mandatory Injunction: “[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties. (Code Civ. Proc., § 525; Kettenhofen v. Superior Court (1961) 55 Cal.2d 189, 191 [10 Cal.Rptr. 356, 358 P.2d 684]; 6 Witkin, Cal. Procedure (3d ed. *447 1985) Provision...

Excerpt: ... was negligent in the use or maintenance of the property; (3) Plaintiff was harmed; and (4) Defendant's negligence was a substantial factor in causing Plaintiff's harm. (See CACI 1000.) “Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted...

Excerpt: ...action for negligence per se is a cause of action of action for negligence, not negligence per se, and defendants acknowledge the allegations for a negligence cause of action are sufficient. The second cause of action for intentional infliction of emotional distress does not sufficiently plead facts showing that plaintiff suffered severe emotional distress. The third cause of action for negligent infliction of emotional distress is duplicative of...

Excerpt: ...esponses from a Plaintiff, which contradict the allegations of their Complaint, (see Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605), Plaintiff has sufficiently demonstrated the testimony at issue here, is reasonably subject to dispute. Consequently, judicial notice is not permissible pursuant to Evidence Code section 452(h). Plaintiff has submitted a Declaration from a geriatric psychiatrist, who testifies he �...

Excerpt: ... The Cross-Complaint was filed on 9-5-18, and more time is needed to conduct discovery related to those issues. (Farboody Decl. ¶ 11.)  Defendant's counsel has a trial date set in federal court on another matter set for 6-25-19. (Id. at 15.)  To date, Plaintiff has specifically refused to release information on the current tenant of the previously occupied premises and their rent payment stating that it is trade secret and that the propoun...

Excerpt: ...ar there are no facts supporting any Ayala Defendant conduct being directed to Plaintiff Angelina directly. Rather, the misrepresentations made by Ray were directed to Angelina's mother, Victoria. All other conduct is directed to or involving the “Plaintiffs”, that is, even though only Plaintiff Angelina brings the 4 th, 5 th, and 9 th COAs, she continues to rely on vague and ambiguous facts relating to all the Plaintiffs— this renders the ...

Excerpt: ... amend. As to the First COA (Violation of Civ. Code, §2923.55), while Defendant asserts Plaintiff's claims have been rendered MOOT by the rescission of a May 27, 2015 Notice of Default (See Exhibit H of RFJN), a review of the Complaint did not reveal any reference to this document. Instead, the Complaint refers to a Notice of Default recorded on November 16, 2010, for which there has been no judicially noticeable evidence of rescission. (See ¶2...

Excerpt: ...hoenix, AZ by leaving the documents with a “John Doe”; “John Doe” is described as a black haired 40-year-old, Caucasian male approximately 6'1 and weighing 180 lbs. No Affidavit of Reasonable Diligence was filed and the documents were then mailed to Defendant at this same address. Defendants present evidence that Defendant BLOOD SYSTEMS is not located at the 201 E. Washington address; that this address belongs to its former agent for serv...

Excerpt: ...ndants Sandeep Shah, Anju Shah and S & S Restaurant Venture LLC's demurrer to First Amended Complaint is SUSTAINED with 10 days leave to amend as to the First Cause of Action for Breach of Contract. Defendants Sandeep Shah, Anju Shah and S & S Restaurant Venture LLC's demurrer to First Amended Complaint is SUSTAINED without leave to amend as to the Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing. Defendant Anju Sh...

Excerpt: ...nd that this incompetence and unfitness created a particular risk. However, the TAC fails to allege any specific facts in support of the conclusory allegations. (See TAC, ¶¶ 27-39.) Plaintiffs have already been given three opportunities to adequately allege facts to support this claim, but have failed to do so. Thus, the demurrer to the third cause of action is sustained withoutleave to amend. Plaintiffs, however, may seek leave to amend if suc...

Excerpt: ...of the nuisance.” (See Reinhard v. Lawrence Warehouse Co. (1940) 41 Cal.App.2d 741, 746.) Similarly, “[g]enerally, ‘a landlord is not responsible to other parties for the misconduct or injurious acts of his tenant to whom his estate has been leased for a lawful and proper purpose when there is no nuisance…at the time of the leasing.” (See Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4 th 1360, 1373.) In this instance, the...

Excerpt: ...cial notice of Exhibits 1 through 4 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 Court DENIES Plaintiff's request for judicial notice of Exhibit A as there is no basis for same under the Evidence Code. As to the 1 st COA (tortious breach of contract), this COA is not sufficiently pled be...

Excerpt: ...from Plaintiff and his wife, where both indicate the fall occurred in November of 2014, prior to Thanksgiving and consequently, more than two years prior to the filing of the complaint, on November 29, 2016. (See ¶8-¶11 of Benler-Ward Declaration and Exhibits B and C thereto.) Based on the above, Defendant asserts the action will likely be found to be barred, such that a separate trial on the statute of limitations will serve judicial economy. ...

Excerpt: ...en to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth” in the separate statement. Here, Defendant seeks further responses to Special Interrogatory Nos. 99, 100, 101, 102, 103, 104, 106, 107, 108, 111, 113, and 114. Each of the interrogatories at issue referenc...

Excerpt: ...osts: Plaintiffs, as the prevailing parties in this action are entitled to their attorneys' fees and costs under Civil Code section 3496 and Santa Ana Municipal Code sections 1-13 and 18-621(A). The hourly rates and time spent by Plaintiffs' counsel appear reasonable: As outlined in the "Declaration of Jeffrey N. Redd" filed concurrently in support of this motion, the firm charged the City an hourly rate of $225 for attorney time, and an ...

Excerpt: ...ase law, a request for judicial notice, which seeks to notice contradictory discovery responses by a Plaintiff, may be granted, pursuant to Evidence Code section 452(h), on the basis Plaintiff's own Deposition testimony is not reasonably subject to dispute, by Plaintiff. (See Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4 th 71, 83; See also Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605). Significantly, ...

Excerpt: ...e of these documents and their legal effect. Although the court takes judicial notice of the existence of the documents and the clear legal effects, the court is not required to accept 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.) As to Plaintiffs LUGO and ZAMUDIO, the Court finds Plaintiffs have sufficiently alleged standing to assert their claims. Plaintiffs LU...

Excerpt: ...eir counsel, it appears his declaration is inadequate to demonstrate that Plaintiffs have “a substantial probability” of prevailing on the punitive damages claim. Specifically, the alleged copy of the Arrest Report and Complaint attached to counsel's declaration is not properly authenticated and is hearsay. Likewise, counsel's declaration as to the contents of Plaintiffs' future testimony is also hearsay. Defendants to give notice. ...

Excerpt: ...ed the subject vehicle to Defendant HO and that liability against FORD is based on it either leasing or renting the subject vehicle to Defendant HO. “The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint. (Childs v. State of California (1983) 144 Cal.App.3d 155; Ramsden v. Western Union (19...

Excerpt: ...rder.” (Page 3:8-10.) There is no indication anywhere in the transcript that Ms. McCluskey brought the ethical violation action against Mr. Aguila in her capacity as JD Property's VP, even though some employment practices were brought up in the proceeding. So, it does not appear she was “represented” by Fisher & Phillips at the time of the IREM hearing because she brought the complaint in her individual capacity, and not in her capacity as ...

Excerpt: ...ion. (See ¶3 and ¶6 of Rucci Declaration). “Courts that are confronted with a civil defendant who is exposed to criminal prosecution arising from the same facts 'weigh the parties' competing interests with a view toward accommodating the interests of both parties, if possible.” (See Fuller v. Superior Court (2001) 87 Cal.App.4 th 299, 307.) Additionally, “[c]ourts have broad discretion in controlling the course of discovery.” (Id.) “H...

Excerpt: ...ndered. (2) Plaintiff and Cross-Defendant Crank Bros Deck Co., Inc.'s motion to strike is GRANTED with 10 days leave to amend. The Cross-Complaint fails to adequately allege oppression, fraud and/or malice by the Cross-Defendant. Prevailing party to give notice. ...

Excerpt: ... to establish that damages are not adequate or that Defendant is likely to use or disseminate the information/records. This case is six (6) years old. There is no showing that since Defendant obtained the information/records herein she has continued to use it to Plaintiffs' detriment. Plaintiffs fail to point to any RFJN document which establishes the Bankruptcy Court specifically found Defendant is likely to use or disseminate the wrongfully obt...

Excerpt: ...ment, etc. are justified. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796; Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App.4th 566, 604—discovery statutes evince an incremental approach, starting with monetary sanctions and ending with ultimate terminating sanction.) Specifically, it appears that striking Defendants' Answers based on their failure to comply with this Court's December 18, 2018 Discovery order does no...

Excerpt: ...ntitlement to judgment against Defendants in the amount of approximately $90,000. Based on the above, it is unclear whether Plaintiff is seeking to recover the entire $90,000 from each Defendant, jointly, or whether Plaintiff expects the Court and Defendants, to sift through 124 pages to determine each Agreement applicable to each party and the specific amounts attributable to each. Similarly, the First COA (Breach of Contract) fails to sufficien...

Excerpt: ... and Sixth Issues is DENIED. Cross-Complainants' Motion for Summary Adjudication of the Second, Third, Fifth, Seven and Eighth Issues is GRANTED. Cross-Complaints' Evidentiary Objections: 1. Sustained; improper use of interrogatory responses. (See Code Civ. Proc., § 2030.420 – At the trial or any other hearing in the action, so far as admissible under the rules of evidence, the propounding party or any party other than the responding party may...

Excerpt: ... Motion: 10:19-20:20.) Initially, as cited by Defendant, case law indicates Plaintiff does not have standing to bring a claim based upon the duty to defend owed to Poss. (See Clark v. California Ins. Guarantee Assn. (2011) 200 Cal.App.4 th 391, 397-398: “A third party judgment creditor is merely an incidental beneficiary of obligations…that arise under the duty to defend. Unless the third party obtains an assignment by the insured of its righ...

Excerpt: ...Moving Party to give notice. Plaintiffs submit evidence to show the billing rates of their attorneys range from $270-$640. The blended rate is $428.73. They state they seek recovery of 351.2 hours of attorney time. (See Motion 7:1-14.) Defendant acknowledges the incurred time and the quality of work of Plaintiffs' attorneys, but argues the rates are excessive. Nonetheless, these billing rates are reasonable given the experience of Plaintiffs' att...

Excerpt: ...LED. Defendants' sole argument as to this cause of action is that it is preempted by the California Uniform Trade Secrets Act (“CUTSA”). However, the Complaint alleges facts other than trade secret misappropriation that would support a cause of action for breach of fiduciary duty. (Compl. ¶¶ 22, 26, 27, 30.) As to the 3 rd COA (Breach of Confidence), the Demurrer is SUSTAINED with leave to amend. As alleged, this cause of action is preempte...

Excerpt: ... entire litigation. Thus, interim attorney fees for an appeal before final disposition are not recoverable. (Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 928; Presley of Southern Calif. v. Whelan(1983) 146 Cal.App.3d 959, 961-962.) Similarly, Civil Code section 5975(c) provides that the “prevailing party” shall be awarded reasonable attorney fees. Thus, it appears interim attorney fees for an appeal are also not recoverable under sect...

Excerpt: ...duced therefrom. (See Ragland v. U.S. Bank Nat. Assn. (2012) 209 Cal.App.4th 182, 194.) Plaintiff's Request for Judicial Notice in Support of Opposition to Motion for Summary Judgment is GRANTED as to Exhibits A, B, and C, and DENIED as to Exhibit D. (Evid. Code, § 452(h).) Although the court takes judicial notice of the existence of documents attached as Exhibit A, B, and C, and the clear legal effects of the same, the court is not required to ...

Excerpt: ...1:4-6 [“restitution of all monies due Plaintiff including back pay, front pay, lost employment benefits and other compensation…”]. Defendant CALTRANS has also raised the affirmative defense of failure to mitigate. (See Answer, RFJN, Exh. 2.) Given the foregoing, the Motion is DENIED as to the following as the Court finds they are relevant to the issues in this case:  Wages, and earnings paid, commissions paid;  1099 statements, and ot...

Excerpt: ... if it determines that an agreement to arbitrate the controversy exists…” Here, Exhibit 6 filed with the Exhibits to the Motion, is the “Wibbert Engagement Agreement,” which appears to have been executed by Kostas Pallaris and Irene Theocharous, agreeing to retain I&M for Wibbert's representation. The Agreement is authenticated by the Ermer Declaration, para. 3. Wibbert does not challenge the existence of the Wibbert Engagement Agreement,...

Excerpt: ...comply with CRC 3.1324(b). Mr. Sharp's second attempt to comply with that rule is as follows: 3. The amended complaint is necessary to add causes of action and clarify allegations against defendants that were added to the complaint after the court granted me my motion to be identified as the Real Party In Interest. These new causes of action and allegations are in the furtherance of justice. Since becoming the Real Party In Interest, I have uncov...

Excerpt: ...t hourly rates of $475-675 is somewhat excessive. The issues presented in the underlying motion were not novel and/or complicated, and it appears the matter could have been handled by associates billing at much lower rates. Thus, the Court is inclined to reduce the hourly rate to a blended rate of $400/hour, and reduce the number of hours as follows: 30 Hours: Special Motion to Strike 6 Hours: Motion for Attorney Fees Thus, the Motion is granted,...

Excerpt: ...tiff to allege that defendants were “aware of the toxic nature of their products and owed a duty to disclose the toxic properties of their products to [plaintiff] because [defendants] alone had knowledge of material facts, to wit the toxic properties of their products, which were not available to [plaintiff].”) Specifically, the Complaint alleges that: Ford had a duty to disclose the Cooling System Defect based on its exclusive knowledge of t...

Excerpt: ...fined and the parties expressly acknowledged their agreement to be bound by those terms (including the Civil Code section 1542 waiver). (See Exh. A., Paras. 2-6.) Thus, the elements pursuant to Code of Civil Procedure section 664.6 have been met. The Court also finds Plaintiff Lien Pham, as the mother of Plaintiffs Jessica and Melissa Le, had authority to enter into the Stipulation for Settlement pursuant to Probate Code section 3500. The validit...

Excerpt: ...om August 2017 to the present. Defendant objects on the grounds the Irog is overbroad, irrelevant to the subject matter, and not reasonably calculated to lead to the discovery of admissible evidence. Infringes on the potential privacy of 3 rd parties. Plaintiff argues Defendant Kathryn used Terra7, Inc., as a sham corporation to receive assets from DBMR and Associates for the sole purpose of defrauding the Plaintiff out of his judgment. He argues...

Excerpt: ...ivate conversations with Abrica on her cell phone without Abrica's knowledge or consent in violation of the CIPA. (See Cross-Complainants' Separate Statement (“PSS”) ¶¶ 3-19.) Cross-Defendant, in opposition, contends her recording of Abrica was not unlawful because she made the recording for the purposes of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of a felony invol...

Excerpt: ... assert the 1 st and 2nd COAs because these claims allege violations of Labor Code section 3820(b)(3), not Insurance Code section 1871.7(a), and under the labor code provision, only the district attorney has standing to assert same. Not so. The 1 st COA alleges Defendants violated Insurance Code section 1871.7(a) because they “employed James, along with other Sales and Marketing Representatives specifically to procure clients or patients to obt...

Excerpt: ... deem plaintiffs to have abandoned the issue.”].) Here, based on the above, it appears Cross-Complainant has conceded MP's arguments; however, as this is Cross- Complainant's first attempt at pleading his claims, the Court will SUSTAIN the Demurrer, in whole, with 15 days leave to amend. (2) Motion to Strike is MOOT. RFJN is granted to the extent the documents exist, but not to the truth of the contents therein. Counsel is reminded to engage in...

Excerpt: ... is objecting to her own deposition testimony, the objection is overruled. 2. 2 -6 = Overruled. Defendant's Evidentiary Objections: 1-4, 10-16, 18-24 = Overruled 5-9, 17 = Sustained Motion for Summary Adjudication Issue 1: Plaintiffs first COA (retaliation in violation of Labor Code § 1102.5) Allegations in the Complaint: The Complaint alleges Plaintiff harbored a reasonable belief that reducing and eliminating training in Quality and Safety, am...

Excerpt: ...ttached as Exhibit A to the Declaration of Don McCarroll. Section 10 of the Employment Agreement is the arbitration provision, which states: (a) Any controversy between Employer and Employee involving the consideration or application of any of the terms, provisions, or conditions of this agreement shall on the written request of either party served on the other be submitted to arbitration. Arbitration shall comply with and be governed by the prov...

Excerpt: ...relevant allegations are as follows:  “On or about May 31, 2016 defendant KATIE NAPIER consumed a grossly excess [sic] amount of alcoholic beverages to the point that she became excessively intoxicated despite knowing that she would need to operate a motor vehicle later on that evening. Even though defendant KATIE NAPIER knew she was drunk and should not be driving a motor vehicle…defendant KATIE NAPIER decided to knowingly operate her Mot...

Excerpt: ...ence to show damages are not adequate or that Defendant is likely to use or disseminate the information/records at issue here? This Court notes this case is six (6) years old. There is no showing that since Defendant obtained the information/records here she has continued to use this information to Plaintiffs' detriment. Plaintiffs do not identify any RFJN document which establishes the Bankruptcy Court specifically found Defendant is likely to u...

Excerpt: ...To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 62.) Whether a duty of care exists is a question of law to be determined on a case-by-case basis. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 4...

Excerpt: ...acts” and “uncertainty,” as against each Affirmative Defense. Nonetheless, as the Notice references the “[F]irst through Fifteenth Affirmative Defenses,” the Court will interpret the Notice as demurring to each individual Affirmative Defense. Next, pursuant to Code of Civil Procedure section 430.20, a party may Demurrer to an Answer, where the Answer “does not state facts sufficient to constitute a defense” or “is uncertain.” (S...

Excerpt: ...ntial Listing Agreement, which states: “Broker agrees to exercise reasonable effort and due diligence to achieve the purposes of this Agreement.” (See ¶7(a) of Exhibit A to FAC). Additionally, Plaintiff cites to the Disclosure attached as Exhibit B of the FAC, which states: “A Seller's agent…has the following affirmative obligations: To the Seller: A Fiduciary duty of utmost care, integrity, honesty and loyalty in dealings with the Selle...

Excerpt: ...ies listed on Annex A shall take all appropriate actions to dismiss their monetary claims against the Debtors with prejudice within such time frame.” (See Notice filed January 17, 2018; See also Exhibit 5 of RJN [underlining added].) Included within Annex A is an express reference to this case and the statement: “The parties' proofs of claim were expunged by Court order [Docket 4328 and 5892].” (See Exhibit 5 of RFJN, Item No. 6 in Annex A)...

Excerpt: ...Exhibit 2 to Declaration of Scott Moore filed on 9-19-18. (Salvaty v. Falcon Cable TV(1985) 165 Cal. App. 3d 798, 800 – when a complainant references an agreement in the complaint and gives no indication why judicial notice would be improper, the court may take judicial notice of the complete document; San Francisco Unif. Sch. Dist. ex rel. Contreras v. Laidlaw Transit, Inc. (2010) 182 Cal. App. 4th 438, 444 n.5 – Courts have taken judicial n...

Excerpt: ...may be proper, may allow the amendment of any pleading or pretrial conference order.” Similarly, per Code of Civil Procedure section 473(a), a court may, in its discretion and in the furtherance of justice, allow a party to amend any pleading. A motion for leave to amend is proper and should be granted if said motion is timely made and the granting of that motion will not prejudice the opposing party. (Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 52...

Excerpt: ...) as the Objections were filed and served on 1-9-19, two days after the Opposition papers were due and also fail to comply with 3.1354(b). Plaintiff's Evidentiary Objections in Support of the Reply: The Court SUSTAINS Objection No. 1. Plaintiff is correct that Defendant's lodging of the entire deposition of Richard Therrien failed to comply with CRC Rule 3.1116. However, the Court will still consider same as evidence in support of the Opposition....

Excerpt: ...n is DENIED. Defendant presents evidence that it has already produced the entire investigative file concerning Mr. Alcala and Mr. Padilla's involvement in the discovery of a homeless encampment under the Newhope St. bridge of State Route 22 freeway (“Newhope”) and the presence of private equipment being stored on the State right of way. (SeeMorrison Decl., ¶ 15.) Defendant has also produced the findings of the investigations into Mr. Alcala ...