Excerpt: ...tions on these exams, the Court DENIES, IN PART, as follows. As to Plaintiff's request that the location of the exams take place in Orange County, there is no legal authority for same. Rather, Code of Civil Procedure section 2032.220(a)(2) states an exam can be “conducted at a location within 75 miles of the residence of the examinee.” Here, Defendants produced evidence that both Dr. Gold and Dr. Henry's offices are located within 75 miles of...

Excerpt: ...only available after trial. (See Code Civ. Proc., sec. 872.610 “The interests of the parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the action.”) “The court in a partition matter must decide between sale or division of the property, which is the primary determination to be made at trial.” (Gray v. Superior Court (1997) 52 Cal. App. 4th 165, 171.) Here, no trial has occurred and Plaintiff contends no...

Excerpt: ...d (h).) Preliminary Injunction: First, for an injunction to issue, the moving party must establish a likelihood of prevailing on the merits. (See San Francisco Newspaper Printing Co., Inc. v. Superior Court (1985) 170 Cal.App.3d 438, 442.) Plaintiffs contend Defendants violated the HBOR by: (1) not notifying them with any notice or recordation that Caliber had acquired the beneficial interest in their mortgage (Hoffmann Decl. ¶ 4.); Defendants r...

Excerpt: ...iss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under inherent authority of the court. The trial court has inherent authority to dismiss an action. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916 (“Lyons”); Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799; Progressive Concrete, Inc. v. Parker (2006) 136 Cal.App.4th 540, 551, fn....

Excerpt: ... rates charged here. The Court applied a blended rate of $200 to 784.20 hours. Clerk to give notice. MP seeks attorney fees in the amount of $212,198.00. At first blush, this amount appears reasonable given the hourly rate of MP's attorneys were $300-385 an hour, and the case involved 2 MSJ hearings, 16 discovery motion hearings, 4 demurrer hearings, 1 motion to expunge, CMCs, and other litigation since 2011. However, a review of the billing stat...

Excerpt: ...en reluctant to find that the defect is not dangerous as a matter of law.'” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568.) Here, the Declaration of Defendant's expert, John Brault, states the maximum depth of the depression was 1 ¼ inch. (See Brault Decl. ¶6.) The Declaration of Plaintiff's expert, Gary M. Gsell states the depth of the depression was 1 ½ inch. (See Gsell Decl. ¶18.) However, it appears both experts meas...

Excerpt: ...nd Laurence shall sell the Edna Property to satisfy any liens and any amounts owing to Hemming Morse. (Judgment, §1(b).) An escrow shall be opened and the sale proceeds divided as follows: 1. Hemming Morse shall be paid the amount of $447,245.76, plus interest at the rate of 10 percent per year from and after December 1, 2010 until the date of payment pursuant to the Hemming Morse Judgment; 2. To the extent that Patrick has made any payments on ...

Excerpt: ...ny judgment will be paid out through insurance and so Defendant's private residence information is unnecessary to collect any judgment. Although it is true Defendant's residence address may not necessarily be relevant, this interrogatory is a judicially approved form and provides background information of a party. As to Form Interrogatory No. 15.1, the Motion is GRANTED as as to 1st, 3 rd-10 th and 12 th Affirmative Defenses as to subsections (a)...

Excerpt: ...d (d).) Defendant moves for summary adjudication of the first COA (legal malpractice), claiming Plaintiff's causes of action are without merit, and Plaintiff cannot establish Defendant's breach was a substantial factor in causing his injuries. Defendant's motion for summary adjudication of the second COA (breach of fiduciary duty) is made on the same grounds and evidence as the first COA. Defendant contends Plaintiff cannot present evidence estab...

Excerpt: ...within a reasonable time not exceeding six months after judgment, dismissal or order, the court is empowered to relieve a party “upon such terms as may be just ... from a judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” “A party seeking relief under section 473 on the grounds of excusable neglect bears the burden of demonstrating that the neglec...

Excerpt: ...son and EQD, LLC's Demurrer to the SAC is OVERRULED as to the 1 st-3 rd COAs; SUSTAINED WITHOUT LEAVE TO AMEND as to the 4 th COA; and SUSTAINED, with 20-days leave to amend, as to the 5 th COA as follows. Defendants' Requests for Judicial Notice of Exhibits A-I are GRANTED, pursuant to Evidence Code §452(d), however, the Court takes notice of the existence of the documents, only, and not Defendants' characterization of the same, within the Requ...

Excerpt: ...endant ManaMed, Inc. (“ManaMed”), and against new defendant Spartamed, LLC (“SpartaMed”) within 10 calendar days of the date of this order. The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the ti...

Excerpt: ...rimary determination to be made at trial.” (Gray v. Superior Court (1997) 52 Cal. App. 4th 165, 171.) Here, no trial has occurred and Plaintiff cites no legal authority to permit the Court to resolve the disputed issues by way of this Motion. Second, Plaintiff contends “[a]ll lien holders agree with this course of action, and there is no other way for Judgment Lien creditor ANDRADE FINANCIAL and co-owner to be paid its Judgment Lien…” (Se...

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

Excerpt: ...tached to the Declaration of Storey establishes that MP seeks to seal documents which do not involve the above limitations. Accordingly, Motion to Seal is continued to 2-19-19, Dept. C11, at 2 pm, to allow MP to submit a redacted copy of the exhibits that only redacts names of third-parties who may have suffered from sexual abuse by Defendant Richard Urbanowicz, and the specific acts of sexual assault (or potential sexual assault) by Richard Urba...

Excerpt: ...RED to provide a Supplemental Response within the next 21-calendar days. Moving Party to give notice. (2) Plaintiff Marcia Kelly's Motion to Compel Further Responses to Special Interrogatories, Set No. One, Special Irog No. 1, is DENIED as overbroad. (See, e.g., Life Technologies Corp. v. Superior Court (2017) 7 Cal.4 th 1, disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5 th 531, 557, fn. 8.) This interrogatory seeks info...

Excerpt: ...mpletely render this Motion MOOT. (See ¶5 and ¶7-¶9 of Gjedsted Declaration). Consequently, the Court requests clarification from Counsel, as to which portions of this Motion, if any, remain at issue. (2) Motion to Compel Deposition: With respect to Plaintiff's Motion to Compel Deposition directed to Defendant El Toro Medical Investors Limited Partnership, the Court notes an agreement to produce for Deposition Mr. Magtanong as Defendant's Pers...

Excerpt: ... requisite mental capacity when he executed the “Resident Representative Designation” which designated Plaintiff's son as his representative to execute the arbitration agreements. As such, Plaintiff's son's execution of the Arbitration Agreements is not binding upon Plaintiff. Moving Party is to give notice. (2) Plaintiff Robert Braum's Motion for Trial Preference is GRANTED as follows. Plaintiff has sufficiently met the requirements for tria...

Excerpt: ...attorneys with the following hours: Amy Hudjuk – 4.0 hours Amy Morse – 7.7 hours Christopher Swanson – 0.9 hours Hadi Gerami – 13.1 hours Michael Ouziel – 12.4 hours Steve Mikhov – 7.4 hours Thomas Burns – 0 hours Upon further review, the court finds the remaining billed time cannot be reasonably apportioned. The billed time is too impractical to apportion and/or involve issues so inextricably intertwined such as to apply to both th...

Excerpt: ...me. Here, unlike in Munn, the record does not show a probate court action exists or that the alleged will was probated and that the transfer of the property was made pursuant to a Probate Court Order. As such, this contention is outside the four-corners of the complaint. “A demurrer tests the legal sufficiency of the complaint.” (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) Further, the IIEI claim is adequately alleged in pa...

Excerpt: ...nd includes the place of execution as required. The Court OVERRULES Plaintiff's evidentiary objections Nos. 2-5 to the Declaration of Hickerson. Defendant's Evidentiary Objections: The Court SUSTAINS Objection Nos. 2, 6, 7, and 10 and OVERRULES all other Objections, Nos. 1, 3-5, 8, 9, and 11-19. “To recover under respondeat superior, plaintiff bears the burden of proof to demonstrate that the employee's tortious act was committed within the sco...

Excerpt: ...er to this claim, without leave to amend. With respect to the First Cause of Action, 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 RJN), a review of the Complaint did not reveal any references 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 ...

Excerpt: ...discovery dispute. The parties are ordered to file a joint statement, by no later than 1-30-19, specifying the issues that they are still unable to resolve. The Notice of Deposition identified one hundred and three (103) categories/areas that Plaintiff's Person Most Knowledgeable (“PMK”) will be deposed on, and sought production of one hundred (100) categories of documents. (Motion, Ruiz Decl., Exh. D.) Defendant objected to all of the catego...

Excerpt: ...alternative Summary Adjudication of both its causes of action and defendants' affirmative defenses is DENIED. Plaintiff Skilled has failed to meet its burden to produce admissible evidence on each element of a “cause of action” entitling it to judgment. (Code Civ. Proc., §437(p) (1); Hunter v. Pacific Mechanical Group (1995) 37 Cal.App.4 th1282, 1287 (disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4 th 826, 8...

Excerpt: ...00. Motion to Enforce Settlement: Defendant Patrick F. Grabowski, Sr. (“Patrick”) is seeking to expunge the Abstract of Judgment bearing Instrument Number 18-296670 recorded by Plaintiff Laurence Grabowski (“Laurence”), and any and all abstracts of judgment Laurence caused to be recorded. In May 2012, this Court entered the Court's Amended Final Judgment (“Final Judgment”). One of the tenets of the Judgment is that it “shall not be ...

Excerpt: ...nd (3) the Circuit Court of Buchanan County, Missouri, as requested by moving Defendants. (Evid. Code, § 452(d).) Motion to Dismiss: In June of 2018, Plaintiffs filed four separate actions within three days of each other in three different states: (1) the District Court for Ringgold County, Iowa; (2) the Circuit Court of Jackson County, Missouri; (3) the Circuit Court of Buchanan County, Missouri; and (4) this action in Superior Court of Orange ...

Excerpt: ...d and served on 1-9-19, two days after the Opposition papers were due and also fail to comply with 3.1354(b). Motion: As to the 1 st and 3 rd COAs (breach of contract), the Motion is MOOT as these causes of action were dismissed by Plaintiff on 9- 12-17. As to the 2 nd COA (breach of contract), the Motion is DENIED. Plaintiff presented evidence that Plaintiff and Defendant entered into an oral agreement for Plaintiff to provide legal representati...

Excerpt: ...Procedure sections 1285.4 and 1286, as it sets forth the substance of the agreement to arbitrate, identifies the name of the arbitrator, and attaches a copy of the Arbitration Award. Therefore, the Petition to Confirm the Arbitration Award is GRANTED. However, Defendants' Petition to Correct the Arbitration Award to include costs of $2,172.81 is DENIED. Defendants have not established this request is proper pursuant to Code of Civil Procedure sec...

Excerpt: ...e Statement are overruled. Separate Statement is not evidence. Defendant's evidentiary objection No. 3 to Leo Paul Glaab's Testimony is sustained; overruled as to objection Nos. 1-2 and 4. Defendant's evidentiary objections No. 5 Robert Pettis' Testimony is sustained; overruled as to objection No. 6. Defendant's evidentiary objections Nos. 7-9 to Rock Wagner's Testimony are sustained. Defendant's evidentiary objection No. 10 to David McGill's Tes...

Excerpt: ...-Defendant leave to add new causes of action to the Cross- Complaint. As to the 4 th COA (breach of the covenant of good faith and fair dealing), this claim is not identical to the 1 st COA for malpractice because although they rely, in part, on some of the same set of facts, the damages sought are not identical. (See FAXC, ¶¶15 and 43.) As to the 6 th COA (concealment), this claim is not pled with the required specificity under California law....

Excerpt: ...ct, Division 3 has treated Unjust Enrichment as a separate cause of action. (See Peterson v. Cellco Partnership (2008) 164 Cal.App.4 th1583, 1593: “The elements of an unjust enrichment claim are…”). Additionally, pursuant to Munoz v. MacMillan (2011) 195 Cal.App.4 th 648, (also in the Fourth District, Division 3), to the extent an alternative title is necessary, the claim should be pled as a “quasi-contract.” The Court in Munoz v. MacMi...

Excerpt: ...does not plead any misleading or untrue publiclydisseminated advertising. Therefore, the demurrer is SUSTAINED. Unless Cross- Complainant can establish at the hearing how it can plead a valid claim, the demurrer will be SUSTAINED without leave to amend. (See, Hendy v. Losse (1991) 54 Cal.3d 723, 742 [If a party cannot amend to state a valid cause of action, or the party opposing the demurrer cannot state how a valid cause of action can be pled, w...

Excerpt: ...ot reiterated when all Defendants collectively Answered Plaintiff's First Amended Complaint…”.) The request to adjudicate Issue No. 2 is DENIED, as the admissible evidence supports conflicting inferences, which require resolution by a jury. “The question of whether an employment relationship exists ‘is generally a question reserved for the trier of fact...” (See Brassinga v. City of Mountain View (1998) 66 Cal.App.4 th 195, 210.) “Thi...

Excerpt: ...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 the 1 st COA (breach of contract and anticipatory breach), this COA is sufficiently pled in paragraphs 33, 41, 44, and 45. Defendants...

Excerpt: ...mination that as a matter of law no duty is owed to the plaintiff is particularly common in situations in which the defendant's responsibility for the activities of third persons is involved. (Richards v. Stanley (1954) 43 Cal.2d 60, 67 [271 P.2d 23].) Among the various policy considerations whose aggregate effect comes to be stated in terms of the legal conclusion that there is a “duty,” foreseeability of the risk actually encountered is of ...

Excerpt: ...or “Hit and Run,” and California Vehicle Code § 20002 does not provide for a private right of action for violation of the statute. [While Defendant contends that leave should not be allowed, it appears that Plaintiff should be given an opportunity to allege a claim based on Defendant's alleged “hit and run.”] (2) Motion to Strike Portions of Second COA: Based on the Court's tentative to sustain the demurrer to the Second Cause of Action,...

Excerpt: ...efendants' responses are inadequate, incomplete, and/or evasive; and their boilerplate objections appear to be without merit or too general. The motion is not opposed. The Court, however, declines to award monetary sanctions to Plaintiffs because they failed to give adequate notice as required under California Civil Procedure Code Section 2023.040. Specifically, the Notice of the Motion states only as follows: “Plaintiffs will further move the ...

Excerpt: ...nt. A party opposing a motion for summary judgment or adjudication is required to file a responsive separate statement per Code of Civil Procedure section 437c (b)(3). The failure to do so is a sufficient grounds for granting of the Motion. However, the Court will provide Plaintiff with one last opportunity to cure this procedural defect. The responsive Separate Statement and Reply are to be filed pursuant to code as tied to the continued hearing...

Excerpt: ...T” as defined in the propounded Form Irogs is overbroad. However, the Court welcomes MP to serve Form Irogs, Set 2 with the definition of “Incident” as set forth in the Supplemental Declaration of Paul at ¶13, and reserves the right to impose significant sanctions should the dispute concerning this definition continue. (2-3) Cross-Complainant New Villa Valencia Mobile Estates Motions to Compel Further Supplemental Responses by Cross-Defend...

Excerpt: ...uant to section 3482, “[n]othing which is done or maintained under the express authority of statute can be deemed a nuisance.” Cross-Defendant asserts that, pursuant to section 5975(a), its enforcement of its CC&Rs are expressly authorized by statute and, thus, cannot be deemed a nuisance. Initially, while section 5975(a) authorizes the enforcement of CC&Rs, it notably creates an exception for “unreasonable” provisions. Consequently, to t...

Excerpt: ...row No. 18-000821-AR. Defendants, however, have produced evidence showing the subject property is not currently in escrow and the property is currently only listed for sale. (See J. Ellis Decl., ¶20; see also Defendant Eugenia Ellis' Opposition which states the sale fell out of escrow but no declaration is attached to support this contention.) As such, the request for injunction appears to moot as there is no open escrow account and no sale is p...

Excerpt: ...to strike prejudgment interest is DENIED. At the pleading stage, the request for prejudgment interest is not “irrelevant, false or improper matter.” Prevailing Party is to give notice. ...

Excerpt: ... to paragraph 9). The Court OVERRULES Objection No. 1 to the declaration of D. Ratajczak (paragraph 9). Evidentiary Objections by JOHNSON in Reply: The Court OVERRULES the one evidentiary objection to the Declaration of J. Gerber. The Court SUSTAINS Objection Nos. 2 and 10 (sic) only to the Declaration of T. Halasz and OVERRULES all other Objections Nos., 1, 3-9, and 11-16. Sur-Reply Objections by Plaintiffs: The Court did not state that Plaintif...

Excerpt: ...urt finds good cause to hear this motion within 30 days of trial. Although Grapheex makes some arguments in opposition to the MSJ/SAI directed to its Complaint, it wholly fails to make any real arguments in opposition to the MSJ/SAI of PFS' FAXC. It simply says, these causes of action fail for the same reason as PFS' MSJ on Grapheex FAC. This is unacceptable. A memorandum of points and authorities must accompany every notice of motion except thos...

Excerpt: ...t prejudice. The moving papers fails to state what allegations are proposed to be deleted, and what allegations are proposed to be included. (CRC 3.1324(a).) In addition, the moving papers do not include a declaration stating: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earli...

Excerpt: ...ity phase. (2) Motion to Compel Further Response to Form Interrogatories: The Motion to Compel directed to Plaintiff's Form Interrogatories, Set One, No. 12.1 is GRANTED. Defendant El Toro Medical Investors, LP dba Lake Forest Nursing Center is ordered to provide a further response to this Interrogatory, which is fully responsive to the same, as required by Code of Civil Procedure section 2030.220(a), within 15 days-notice of this order. Addition...

Excerpt: ...tion using new legal theories of recovery based on the same operative facts from the prior complaints. (Id., ¶ 4a.) Counsel represents that the new legal theories of recovery were evaluated by counsel in late April 2018, through a review of prior discovery responses made by Plaintiff in this case. (Id., ¶ 4b-4c.) Counsel further represents that the requested amendment was not made earlier because the case was transferred from multiple departmen...

Excerpt: ...ages as to the product liability claim; however, there are sufficient facts pled that Defendants consciously disregarded Plaintiff's safety when it allowed unlicensed personnel to demonstrate the products on Plaintiff. As to facts relating to other clients, it is unclear how this is relevant to Plaintiff's harm. 20 days leave to amend as to items 1, 3, and 4. MP to give notice. ...

Excerpt: ...etion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (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 motion was not heard earlier. (3) Any likeli...

Excerpt: ...P to give notice. ...

Excerpt: ...le presumption that the service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal. App. 4th 789, 795.) “Because of the statutory presumption, defendant was thus required to produce evidence that he was not served.”(Am. Exp. Centurion Bank v. Zara (2011) 199 Cal. App. 4th 383, 390.) Here, to rebut the presumption of proper service, Defendant ZHEN HONG SHAO produced evidence he was not personally served as indicated in the 1...

Excerpt: ...rotected activity pursuant to Code of Civil Procedure section 425.16(e)(1). The court finds the statements made by the individual Defendants arise out of an internal investigation and constitute protected activity. (See,Hansen v. California Dept. of Corrections and Rehabilitation (2008) 171 Cal.App.4 th 1537, 1544.) Second, the court finds Plaintiff has not established a probability of prevailing on the merits for the reasons discussed below. An ...

Excerpt: ...(b)(3). This alone is a basis for granting of the Motion. However, the Court will provide Plaintiff with an opportunity to cure this procedural defect. The responsive Separate Statement and Reply are to be filed pursuant to code as tied to the continued hearing date. The Trial set for 7-23-18 is continued to 9-4-18, Dept. C11, at 9 am. Moving Party is to give notice. ...

Excerpt: ... parties' agreement. Case is stayed pending the conclusion of arbitration. (Code Civ. Proc., §1281.2, 1281.4.) Defendant's RFJN is denied as unnecessary to the ruling herein. Plaintiff's objections are overruled as procedurally defective and improper. MP to give notice ...

Excerpt: ... Nos. 5 and 6 to the extent such a person exists. Plaintiff in Opposition states the person most qualified on this topic was Plaintiff's former general counsel, Cynthia Gillete, who has already been deposed and examined about her communications with Mr. Lamm and the CITY. (See Gillette Depo. 220:20-25; 219:17-220:19.) Code of Civil Procedure section 2025.230 applies “only to current officers, directors, managing agents, or employees”. (See Ma...

Excerpt: ... of the same and, consequently, the Court cannot evaluate the merit of Plaintiff's claim they are “boilerplate in nature, non-specific and non-particularized to the injuries to those parts of Plaintiff's body which were injured as a result of the subject incident.” (See Notice: 2:22-23.) Likewise, while Plaintiff asserts the inquiry “should be limited to only those medical, billing and insurance records pertaining to the medical treatment P...

Excerpt: ...these newly proposed claims do not allege “fundamentally different facts,” (See Motion: 7:28) and asserts “Cross-Defendants are fully aware of the factual bases contained in the proposed amendments as they are based upon the evidence and the discovery to date” (See Motion: 8:2-3), Cross- Complainant concedes amendment will require further discovery. The Motion indicates: “Cross-Complainant is willing to permit the reopening of discovery...

Excerpt: ...t for non-statutory demurrers. MERITS: Defendant seeks an order granting its MJOP as to the two negligence COAs here on the basis that workers compensation is the exclusive remedy for such claims. Defendant cites Labor Code section 3600 generally. Labor Code section 3600: (a) Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602,...

Excerpt: ...��related action”). The two cases involve the same parties, the same properties, and seek adjudication of the ownership of such properties. The cases are essentially the same, and it appears that “economy and convenience” would be served by a joint trial. Stay: Based on the above tentative to consolidate the two actions, it appears a stay of this action is not necessary. Although the granting of the consolidation will delay the trial - prev...

Excerpt: ...ocial Worker, Daniel Hames Garcia, and Licensed Clinical Social Worker, Diana Ortiz. The right to privacy extends to medical records. (John B. v. Superior Court (2006) 38 Cal.4 th 1177, 1198); however, “[o]n occasion [a party's] privacy interests may have to give way to the opponent's right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discov...

Excerpt: ...he TAC alleges adequate facts to support a claim against Defendant for collection on an attorney's lien. Specifically, the TAC alleges that a lien in favor of Plaintiff [attorney] upon the proceeds of a prospective judgment in favor of Ditech [Defendant's predecessor in interest] for legal services rendered was created pursuant to an agreement (TAC, ¶ 3); Plaintiff obtained declaratory relief as to the existence and amount of the attorney's lien...

Excerpt: ...o seek adjudication of the existence of duties “at least as early as November 4, 2016” and “as of November 8, 2016.” (See Notice of Motion.) The rewording is a response to this Court's November 13, 2017 order, stating “the Notice of Motion did not seek a determination of any duty existing as of November 4, 2016…” (See November 13, 2017 Minute Order); however, Lasso's request for adjudication is, again, somewhat ambiguous. To any ext...

Excerpt: ...of California may be subpoenaed to appear and testify. (See Code Civ. Proc., § 1989.) Here, the Declaration of Myrna Goodrich (Aetna Resources LLC, Business Project Program Manager) states: “5. Based on my review of the subpoena, it is my belief and understanding that the subpoena seeks many types of documents created and maintained by different ALIC business units and other Aetna legal entities, and there is not a single custodian of records ...

Excerpt: ...id not file and serve the subject motions until 4-27-18, 105 days after Plaintiff served her responses by mail. Delaying the motion beyond the 45-day time limit waives the right to compel a further response to the interrogatories. (Code Civ. Proc., § 2030.300(c); see Vidal Sassoon, Inc. v. Sup.Ct. (Halpern) (1983) 147 Cal.App.3d 681, 685—court lacks jurisdiction to order further answers after 45 days.) Thus, the motions are denied. Prevailing ...

Excerpt: ...nctions in the amount of $640.00 to Defendants, pursuant to Code of Civil Procedure sections 2023.030 and 2023.010(d), within 30 days notice of this order. Defendants to give notice. (2) Motion to Compel Production brought by Defendants Mark Bolton and Tenae Bolton is GRANTED in part. The Court notes the Opposition filed by Plaintiff on May 30, 2018 includes discovery responses; however, no verifications are provided. Plaintiff is ordered to serv...

Excerpt: ...) Defendants Response Team 1 Holdings, LLC and JFS Construction Group, LLC's Motion to Strike the Request for Attorney Fees from the FAC is DENIED. “It is now well-settled that attorney fees, whether authorized by contract or statute, are recoverable under section 1033.5, subdivision (a)(10) as an element of costs, and rather than claim attorney fees as an element of damages, the proper method to recover attorney fees is as an item of costs awa...

Excerpt: ...he mandatory judicial council form, MC-052. (CRC 3.1362(c).) Rather, he opted to file three (3) declarations filed at various times—none of which utilized form MC-052. Third, no Proposed Order has been lodged with the Court or apparently served, in violation of CRC, Rule 3.1362(d), (e). MP to give notice. ...

Excerpt: ...t of possession, or may regain possession of the property seized, by posting a bond in the same amount as Plaintiff's bond or by an amount determined by the court pursuant to Code of Civil Procedure section 510.010. (Code Civ. Proc., § 515.020(a).) The undertaking shall state that, if the Plaintiff recovers judgment on the action, the Defendant shall pay all costs awarded to the Plaintiff and all damages that the Plaintiff may sustain by reason ...

Excerpt: ...he demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading. (3) The demurring party shall file and serve with the demurrer a declaration stating either of the following: Here, MP failed to file a Declaration “with the demurrer” establishing a meet and confer “before filing a demurrer...

Excerpt: ...nstrument executed by Ms. Ruth Sachar Furman granting him the authority to act as her “attorney-in-fact.” (See, Prob. Code, §§ 4014(a) and 4022.) Here, the FAC fails to allege the existence of written instrument executed by Ms. Furman granting Mr. Furman the authority to act on her behalf. In addition, Ruth Sachar Furman can no longer serve as trustee because a conservatorship was appointed over her. (See, Prob. Code, § 15643(e).) Because ...

Excerpt: ... 1st COA (Breach of the Implied Covenant of Good Faith and Fair Dealing): While the allegations in the SAXC might be generally sufficient to plead a contractual breach of the implied covenant of good faith and fair dealing (see SAXC, ¶¶ 24-35), North General Construction expressly disclaims any such contractual claim. (Opposition, 3:11-12.) North General Construction instead seeks to plead a claim for tortious breach of the implied covenant. (O...

Excerpt: ...ctoria Moore, and Gabriela Moore (collectively, “Settling Plaintiffs”) is in good faith within the meaning of Code of Civil Procedure sections 877 and 877.6. This is Settling Defendants' second motion seeking a good faith determination. Still missing is any evidence sufficient to assess Settling Defendants' proportionate liability; a critical factor in such a determination. (See City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 12...

Excerpt: ...ond to the Mediator's offer. Here, Plaintiffs obtained an order from the Court excusing their attendance at the MSC in advance of the MSC. (SeeOrder Granting Plaintiffs' Request to Excuse Six Plaintiffs' Absence from MSC filed on 4-25-18.) On a showing of “good cause,” the court may excuse any party's attendance at the MSC. (CRC 3.1380(b).) Such permission should be obtained in advance of the MSC. (Orange Sup.Ct. Rule 316G(5).) Further, Defen...

Excerpt: ...o the declaration of D. Ratajczak (paragraph 9). Motion to Appoint Receiver: Defendant JOHNSON seeks the appointment of a Receiver to manage the business affairs of Plaintiff URBAN ROADS pursuant to Code of Civil Procedure section 564(b)(1) and/or (b)(9) on the grounds: (1) a receiver is necessary to protect his interest as it is probable that URBAN ROADS, LLC's funds are in danger of being lost, removed, or materially injured; and (2) a receiver...

Excerpt: ...rs ago. Thereafter, Defendant cites People v. Farmers' Ins. Group of Cos. (1977) 52 Cal.4 th 813, however, this authority could not be located. The case citation offered leads to People v. Blacksher (2011) 52 Cal.4 th 769 and a search of the offered case name led to no applicable results. “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 may treat ...

Excerpt: ...rises only if the proof of service complies with the applicable statutory requirements. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441- 1442; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2018) 4:148.2, 4:165, pp. 4-32.20, 4-32.23.) (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal. App. 4th 789, 795.) “Because of the statutory presumption, defendant was thus required to produce evidence t...

Excerpt: ...nd a group of witnesses, and to make various minor clerical changes. Plaintiffs have substantially complied with the requirements of CRC 3.1324. It also appears that the proposed amendments are necessary and proper and Defendants will not be prejudiced if the leave is allowed. While Defendants oppose the motion contending that the proposed amendments concerning a group of witnesses lack any factual support, the court generally does not consider t...

Excerpt: ... his injuries and medical treatment were the result of the first accident;” See also Reply: 2:6-7: “The allegations Plaintiff seeks to delete do not prevent Defendant from arguing apportionment of Plaintiff's injuries and treatment he received at trial.”) Indeed, the Answer filed by the Imhoff Defendants on April 11, 2017 includes an affirmative defense which asserts Plaintiff's damages were “caused or contributed to by the negligence of ...

Excerpt: ...suant to the terms of the Option and the option terminated as a result of same (Id., Nos. 10, 12, and 31); and (3) there is no triable issue as to whether Defendant provided written consent to any assignment of RIG's option rights to Plaintiff (Id., Nos. 33 and 37.) Although Plaintiff “disputes” SSUMF No. 37, the evidence relied upon for this dispute reveals that there is no “dispute” to this fact. Plaintiff's evidence only claims that th...

Excerpt: ...ming that incident could be more than 30 different events. The Court notes that although the separate statement does not list out the language of each Irog, and each objection, the Separate Statement was sufficient for the court to decide this motion. It is within the court's discretion whether to grant or deny a motion based on the completeness of the Separate Statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) In section 4 of the F...

Excerpt: ...es, Set One, and Request for Monetary Sanctions is MOOT and/or DENIED as follows. DUNCAN served Responses, without objections, to the discovery at issue on 4-24-18. (See Freeman Decl., ¶ 3, Exh. 1.) Cross-Complainant's request for sanctions is DENIED. The Court finds that DUNCAN acted with substantial justification and/or circumstances make the imposition of sanctions unjust. (See Freeman Decl. in support of Opposition, ¶¶4-11.) Moving Party i...

Excerpt: ...nt against Defendant. Prevailing Party is to give notice. Evidentiary Objections: Defendants' Objection to the Declaration of Michael Velarde submitted in Support of the Moving Papers: Objection No. 1 is SUSTAINED. Defendants' Objection to the Declaration of Michael Velarde submitted in Support of the Reply Papers: Objection No. 1 is SUSTAINED. ...

Excerpt: .... To the extent Plaintiff seeks the production of documents (i.e., mortgage statements), The Homestead Exemption of the Code of Civil Procedure does not appear to include a method to obtain discovery such as the amount of existing liens and encumbrances against the subject real property. The Examination Proceedings section of the Code of Civil Procedure sets forth the methods to examine the judgment debtor, including obtaining the production of d...

Excerpt: ...ich is inapplicable. This is not an appropriate basis for Demurrer. “A demurrer is not the appropriate vehicle to challenge a portion of a cause of action demanding an improper remedy.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4 th 365, 384; See also Grieves v. Superior Court (1984) 157 Cal.App.3d 159.) As to the Second COA (Breach of Contract), the Demurrer is SUSTAINED with leave to amend. Plaintiff concedes she did not...

Excerpt: ...iled until 12-26- 17 due to an e-filing error. The Court GRANTS ONLY Defendants' request for judicial notice of Exhibits A-E, F-H and K pursuant to Evidence Code section 452(d) and (h). However, the Court declines to take judicial notice of hearsay statements contained in the court's records. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) Moving Party is to give notice. (2) Defendant Manny Duran's Demurrer to the FAC is OVERRULED in its ent...

Excerpt: ...il Procedure section 2031.310(h), within 30 days-notice of this order. Although multiple requests for production are at issue in this Motion, a review of the Separate Statement and the briefs submitted by the parties makes clear the sole issue requiring resolution is the relevance of documents relating to Capital Pacific Holdings, Inc. v. C.W. Poss, Inc. (Orange County Case No. 30-2011-481964). Pursuant to Code of Civil Procedure section 2017.010...

Excerpt: ...tening time to less than 10 days may not be granted. (Code Civ. Proc., § 1290.2.) Here, the POS attached to the motion indicates that the only parties served were Madeline8, LLC and Sanchez Group, LLC (Plaintiffs) via their attorneys. However, none of the other parties here are listed on the POS. Those defendants do appear to be separately represented, and their counsel have appeared for ex partes. (See for example, Minute Order of 3-9-18.) Alth...

Excerpt: ...or of the Cross-Complainants and against Chan and TTGlobal on the Cross-Complainants' COA for intentional misrepresentation with a finding of malice. However, the jury only awarded $1 in damages. The SAXC pleads many acts of “fraud” (see SAXC¶57a-k); however the gravamen of all of the bad acts is that Chan stole, through fraud, tagTrends' and tagTrends Asia's business. Certainly if the Jury agreed with Hart that Chan accomplished this theft ...

Excerpt: ...section 438(h)(4)(C) does not appear to apply here. Because Defendants have failed to file an Amended Answer after the court's sustaining of the Demurrer to the Answer with leave to amend, the proper remedy would be for Plaintiff to proceed by way of default. (See, Code of Civ. Proc., § 586(a)(5); see also, Weil & Brown, Entry of Default, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-B [The Rutter Group] at 5:54 [“Defendant must answer or othe...

Excerpt: ...fendants did not identify the changes until the Reply, thus depriving the court of timely notice of the arguments properly served. In addition to the above, Defendants have improperly included new evidence and legal theories in their Reply, which were not included in the Motion and which are not responsive to the Opposition. “It is elementary that points raised for the first time in a reply brief are not considered by the court.” (Magic Kitch...

Excerpt: ...202 Cal.App.4th 89, 112.) In addition, Plaintiff has failed to plead facts showing that the foreclosure sale is void as a matter of law, and therefore cannot challenge the foreclosure sale. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808.) The allegation that the Notice of Sale contains an incorrect street address does not affect the validity of the foreclosure sale as the assessor parcel number was correctly included therein. (...

Excerpt: ...law and fails to refer whatsoever to any of the allegations in the Complaint. As such, the Memorandum fails to comply with CRC Rule 3.1113(b) which requires the memorandum to “contain a statement of law, evidence, and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” In any event, the elements for the causes of action are sufficiently alleged for purposes of demurrer. Plain...

Excerpt: ...(1981) 123 Cal.App.3d 558, 564.) Denial of leave to amend is appropriate where inexcusable delay and probable prejudice to the opposing party is shown. (Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 304, 311.) Moving Party is granted leave to file the proposed Cross-Complaint which is attached as Exhibit A and ORDERED to file and serve same within the next 5-calendar days. (2) CMC in this case and related case (Mason v. Specialized Loan ...

Excerpt: ...cient showing of a violation of the Constitution. However, the disclosure of any information should redact the names and personal identifying information of potential victims of molestation and the names of the elders in the congregation who authored the responses to protect third-parties' right to privacy. In addition, use and dissemination of information is limited for purposes of this litigation only. With respect to request no. 19, the court ...

Excerpt: ...1100, 1114-1115.) The Third COA seeks “a declaration by this Court that Cross-defendant Haefner's shares of NSD were duly redeemed and that he has no further rights as a shareholder of NSD.” (See ¶52 of SACC [Exhibit B of Request for Judicial Notice].) This request mirrors the Eighth COA in the Second Amended Complaint, which was litigated as a derivative claim. Notably, although originally asserted directly by NSD (See Complaint dated 6-16-...

Excerpt: ...474. Specifically, Defendant fails to demonstrate that Plaintiff was not genuinely “ignorant” or had “actual knowledge” of Defendant Cheung's identity when the Complaint was filed. That the police report identified Cheung as a driver involved in the subject incident and that counsel for Plaintiff was in contact with the vehicle owner's insurance company does not conclusively demonstrate that Plaintiff was aware of Defendant Cheung's ident...

Excerpt: ...ide no evidence whatsoever of same. Defendants provide no factual analysis as to why the FAA applies but simply contends that the only questions concerning arbitration is whether an agreement to arbitrate exists and whether the claims are covered by the arbitration agreement. (See Motion, p. 10.) Defendants Met Their Initial Burden of Establishing a Valid Agreement to Arbitrate Exists: Defendants have met their burden of proving by a preponderanc...

Excerpt: ...on. It appears that seeking Plaintiff's income records from 2010-2017 may be overbroad as time [since the accident occurred in 2015]. Further, Plaintiff represents that all of the responsive documents for the time period of 2010-2016 have been provided, and that Plaintiff will provide the responsive documents for 2017. While Plaintiff asserts various objections, including tax return privilege, it appears that Plaintiff has impliedly and expressly...

Excerpt: ...position, Plaintiff produced evidence that it did timely respond to the discovery on 12-7-18. (See Novak Decl., ¶¶ 3 and 4, Exh. A.) As such, the Motion is moot and there is no basis for same. Moving Party is to give notice. (2) Defendant Assembled Products Corporation's Motion to Compel Responses from Plaintiff as to Defendant's Supplemental Set of Form Interrogatories and Supplemental Set of Special Interrogatories is is MOOT AND/OR DENIED as...

Excerpt: ... Coast, CA 92657). Defendant contends the Family Law Court has resolved the ownership dispute of the subject real property (i.e., determined that Plaintiff has no ownership interest in the same), and therefore seeks to dissolve the stay order. Defendant Bryant provides evidence showing the Family Law Court issued a Notice of Entry of Order on 1-2-18 finding Plaintiff has no ownership interest in the subject real property (9 Beachcrest, Newport Co...