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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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