Excerpt: ...laim. Moreover, corporate ratification has not been adequately pleaded. Pursuant to Civil Code section 3294(a), a plaintiff may seek punitive damages for “oppression, fraud, or malice.” Section 3294(c) defines “malice” as conduct which is intended to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Similarly, section 3294(c) defines “oppression” as despicable condu...

Excerpt: ...in reply is insufficient and does not establish compliance with CRC, Rule 3.1324(a). In addition, Plaintiffs fail to comply with California Rules of Court, Rule 3.1324(a). Plaintiffs provide that there are additional facts and claims regarding Plaintiffs' pre-existing causes of action for breach of fiduciary duty against Mr. Soderling and Mr. Lutton but do not, but the failure to specify what has been deleted or added to the proposed Second Amend...

Excerpt: ...with EON Reality, Inc., a U.S. corporation.” (Complaint ¶5.) Plaintiff further pleads, “Venue is proper in this Court under California Code of Civil Procedure section 395 because Plaintiff's injury was suffered in this County and the relevant records are maintained in this County.” However, it is unclear from the Complaint itself whether the “contracts” referred to is the employment contract with Defendant, or contracts between EON and...

Excerpt: ...ts with the state that the assertion of jurisdiction does not violate ‘traditional notions of fair play and substantial justice.'” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4 th 434, 444, abrogated on other grounds by Bristol-Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773.) “When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts jus...

Excerpt: ... 1-8 which are to the Declaration of S. SHAH. Defendants' Evidentiary Objections to Plaintiff's Evidence in support of Opposition. The Court OVERRULES all Objections Nos. 1-36 which are Declarations of the R. Steele, Esq. and NILESH. Motion. As to the 1 st COA (fraud, Issue Nos. 1 through 3), the Court finds there are triable issues of material fact. Defendants seek summary judgment on the 1 st cause of action for fraud asserted against SANDEEP o...

Excerpt: ...ent in the Complaint. In the alternative, Plaintiff moves for an order granting summary adjudication as to the following issues: Issue No. 1: There is no triable of issue of material fact and the first cause action for Breach of Contract is with merit because Defendants cannot establish that they were entitled to receive any fees on account of the filing of a Petition for Letters of Administration seeking to have Plaintiff appointed the administr...

Excerpt: ...e of Civil Procedure section 1286.2 permits a court to vacate an arbitration award if “[t]he award was procured by corruption, fraud or other undue means” and if “[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Code Civ. Proc., § 1286.2, subd. (a)(1), (4).) Corruption, Fraud, or Other Undue Means: This ground applies either to fraud p...

Excerpt: ...e section 1030(a), “[w]hen the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding.” “The motion shall be made on the grounds that the plaintiff resides out of the ...

Excerpt: ...ns to the SUF in the motion, other than a few background facts with respect to each issue. However, if the separate statement sets forth each fact and supporting evidence, the motion complies with the Rules of Court and Code of Civil Procedure section 437c. Defendants also argue that plaintiffs refer to the standard for summary judgment as opposed to summary adjudication. Despite the incorrect reference, it does not affect the court's analysis. M...

Excerpt: ...ment 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 earlier. (CRC, Rule 3.1324(b).) While the Supplemental Declarations of Cody James Shaver (“Supp. Shaver Decl.”) and Jason J. Fratts (“Supp. Fratts Decl.”) sets forth the effect of the amendment for the second cause of action for breach of fiduciary duty and why the amendmen...

Excerpt: ...rt, DENIED in part. 1st COA (Declaratory Relief): Here, the Cross-Complaint requests at least three separate declarations, which are all are combined into the first cause of action for declaratory relief: 1. A declaration that 150 NCD is a disassociated or “Involuntary Withdrawn” member; 2. A declaration that the vote on February 13, 2019 appointing a second, second manager was void ab initio and that the duplicative second manager has no rig...

Excerpt: ...e of Civil Procedure section 1286.2 permits a court to vacate an arbitration award if “[t]he award was procured by corruption, fraud or other undue means” and if “[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Code Civ. Proc., § 1286.2, subd. (a)(1), (4).) Corruption, Fraud, or Other Undue Means: This ground applies either to fraud p...

Excerpt: ...D, as follows. First, Second, Third, Eighth, and Ninth COAs 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 Intentional Misrepresentation, Eighth Cause of Action for False Promise, and Ninth Cause of Action for Nondisclosure of Material Facts. The alleged representations and/or promises made by...

Excerpt: ...mental responses were served and further meet and confer efforts took place. The main issue is whether the supplemental responses are proper. Conteas served the subject Form Irogs as the defendant on the complaint by plaintiff. (See Liberto Decl., Exh. 2, Form Irogs.) Additionally, the “Incident” refers to the dispute over the payment of legal fees. (Ibid.) The Form Irogs do not indicate that information is being sought with regard to Conteas...

Excerpt: ...use Plaintiff has no standing to assert that claim. Pursuant to Civil Code section 5975, subd. (a) a party must be either an “owner of a separate interest,” an “Association,” or “both” in order to enforce equitable servitudes such as covenants, conditions and restrictions (“CC&Rs”). Plaintiff fits no such description, by his own admission, and he thus lacks standing to purse this claim. THIRD COA (Nuisance) Issue No. 2: The GARRUB...

Excerpt: ... 3. Motion to compel further responses by cross-complainant/defendant Alexandra Vanegas to Plaintiff's Requests for Production of Documents, Set One 4. Motion to compel further responses by cross-complainant/defendant Dylan Kim to Plaintiff's Requests for Production of Documents, Set One 5. Motion to compel further responses by cross-complainant/defendant Jay Sohn to Plaintiff's Requests for Production of Documents, Set One Meet and Confer: Prior...

Excerpt: ...ash Service of Summons, on the ground of lack of jurisdiction. Pursuant to section 410.10, “[a] court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the United States.” “A state court's assertion of personal jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Con...

Excerpt: ...wing non-parties: McCormick Ambulance, The Pain and Rehabilitation Medical Group, Torrance Memorial Medical Center, United Healthcare Services, and Beach City Orthopedics for records relating to Bennett, and McCormick Ambulance for records relating to Espinoza. In the alternative, Plaintiffs seek a protective order limiting the scope of the subpoenas to records that predate the trial in the underlying tort action, September 4, 2018, and restricti...

Excerpt: ...se he is not, and never has been, a percipient witness; his sole involvement has at all times been as lead litigation counsel for various Defendants since he was first retained in or about October 2016 in response to Plaintiffs' initial lawsuit; and he does not have any information relevant to the claims or defenses asserted in this case other than from information he has gathered through attorney-client communications, his own work product and t...

Excerpt: ... property, recorded as Document No. 2020000331529, in the official records of the Recorder's Office of Orange County on or about July 13, 2020, by Plaintiff, KPRS Construction Services, Inc. (“KPRS”). As an initial matter, KPRS' opposition was filed and served late on 11-17-21. However, as a reply has been timely filed and served, addresses the merits of the opposition, and does not argue prejudice as a result of the late opposition, the Cour...

Excerpt: ...ices, Inc., et al. v. Gregg Gann, et al. (the “Derivative Action”) with OCSC Case No.: 30- 2021-01184693-CU-BT-CJC captioned, Gregg Gann, an individual; Westview Services, Inc., et al. (“Gann v. Leiba”). Defendant Gregg Gann (“Gann”) opposes the motion on the procedural and substantive grounds. It is unclear whether the Notice of Motion to Consolidate was filed in Gann v. Leiba as required by CRC, Rule 3.350(a)(1)(C). Leiba's contenti...

Excerpt: ...ition are no longer at issue since the matter was continued multiple times. The merits are addressed below. The Undisputed Material Facts (UMFs) are repeated throughout the separate statement and were renumbered with each issue. To avoid confusion, the court will refer to the number that the fact was first mentioned. Objections: The court overrules plaintiff's single objection to defendant's evidence. As to defendant's objections, the court susta...

Excerpt: ...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 time for answer or demurrer. (Code Civ. Proc., § 473(a)(1).) The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an...

Excerpt: ...statute of limitations for fraud (COAs 1 and 3-6) are OVERRULED; the demurrers to the 1 st and 5 th COAs for breach of fiduciary duty are OVERRULED; the demurrers to the 2 nd and 3 rd COAs for breach of oral contract and common counts, respectively, are SUSTAINED with 20 days leave to amend. SPECIAL MOTION TO STRIKE (ANTI-SLAPP) AND MOTION TO STRIKE PUNITIVE DAMAGES: Courts use a two-step process for determining whether an action or a claim is a ...

Excerpt: ...rest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. (See also NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178, 1218.) The court denies the request seal the entire settlement agreement as defendant has not s...

Excerpt: ...of each of the 6 th through 10 th affirmative defenses of plaintiff Orange County Association for Mental Health dba Mental Health Association of Orange County [“MHAOC”] and BT Investment Properties, LLC's [“BT”] Answer to the Complaint 3. Summary judgment of MHAOC's Cross- Complaint The Motions are DENIED. 1. Motion for Summary Judgment – 2 nd COA (public nuisance per se) Through this Motion the City of Santa Ana asks the Court to enter...

Excerpt: ... in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, ‘attorney's fees' means reasonable attorney's fees a party may be authorized to recover by...

Excerpt: ...ne items requested pursuant to Evidence Code section 452(d) and 452(h), but declines to take judicial notice of hearsay statements therein. (Herrera v. Deutsche Bank Nat'l Trust Co. (2011) 196 Cal.App.4th 1366, 1375; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.) The plaintiff bears the burden to show all elements necessary to support issuance of ...

Excerpt: ... that Plaintiff suffered from a disability since Plaintiff admits he returned to work with a release to full work duty; (2) the allegations that Plaintiff was experiencing pain in his right wrist and right hand are insufficient to constitute a “disability”; (3) the Complaint fails to allege Defendant knew Plaintiff suffered from any alleged disability; and (4) the Complaint does not allege that Plaintiff was terminated “because of” his di...

Excerpt: ...ies of his everyday business would be severely impeded if every plaintiff filing a complaint against an agency head, in his official capacity, were allowed to take his oral deposition. Such procedure would be contrary to the public interest, plus the fact that ordinarily the head of an agency has little or no knowledge of the facts of the case.” ' ” (Contractors' State License Bd. v. Superior Court (2018) 23 Cal.App.5th 125, 131.) “An excep...

Excerpt: ...t be admissible, they appear reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Plaintiff alleges more than $900,000 in future loss of earnings capacity related to her inability to complete a career as a veterinarian due to the accident. (Declaration of Connor Stinson (“Stinson Decl.”), ¶¶ 6-7.) Plaintiff's education consists of a high school diploma from El Dorado High School, and one sem...

Excerpt: ...ter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638; In re Estate of Young (2008) 160 Cal.App.4th 62, 79.) Fraud must be pled specifically; general and conclusory allegations do not suffice. (Alfaro v. Community Housing Imp. System & Planning Ass'n, Inc. (2009) 171 Cal.App.4th 1356, 1384.) This particularity requirement necessitates pleading...

Excerpt: ... August 25, 2021, the Court continued the hearing due to insufficient meet and confer efforts by the parties. A declaration of counsel concerning the subsequent meet and confer efforts was timely filed and served on September 1, 2021, and indicates counsel for the parties discussed the issues in the motion by telephone and could not come to a resolution. (Declaration of A. Michael Sabongui, ¶¶ 3-6, ROA 116.) Motion to Strike As a threshold matt...

Excerpt: ...l Contract ¶¶15, 16.) The Declaration of Hootan Ataian also suggests he loaned Defendant HAS $300,000.00 at the request of HSA Manager, Abrahim Etemad Haary. (Decl. of Hootan¶2,3) However, submitted with the Opposition is a Declaration of Haary, wherein he states, “At no time did Hootan Ataian and I discuss that Hootan would be “loaning” money to HAS, nor did I ever tell Hootan that HAS would agree to repay him for the $300,000 that he p...

Excerpt: ...eks to appear as counsel pro hac vice. (Calif. Rules of Court, rule 9.40(a).) Defendant is a LLC and cannot represent itself. (Merco Const. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 731.) Therefore, this motion was improper. Defendant also labeled this motion as a motion to dismiss. The court deems this motion as a motion to quash. Merits: The issue of whether this court has personal jurisdiction over a foreign-state LLC that sold ...

Excerpt: ...bismus, at which time Plaintiff discovered that Defendants negligently diagnosed and treated Plaintiff, resulting in severe and permanent injury to Plaintiff.” Finally, in ¶10 she pleads, “as a foreseeable result of the improper diagnosis and treatment procedures done by Defendants, and each of them, Plaintiff was permanently injured.” (Emphasis added.) Based on these facts, Defendant filed an MSJ addressing the standard of care in perform...

Excerpt: ...e loan amount of $78,800.00 into Borrower's bank account, thereby performing its obligations under the Loan Agreement; on or about July 2, 2019, Borrower breached the terms of the Loan Agreement by failing to timely make its payments and then not making any additional payments on the Loan Agreement; that Borrower made $2,894.68 of its $106,380 obligation; as a result of Borrower's breach of the Loan Agreement, $103,485.32 remains due and payable;...

Excerpt: ...e motion for summary judgment and summary adjudication must be denied. “[T]he moving party should ‘“[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in [the] separate statement, the motion must be denied!”'” (Insalaco v. Hope Lutheran Church of...

Excerpt: ...ply with CRC, Rule 3.1354. Procedural Defects: The Court notes Defendants' Notice of Motion and Response to Separate Statement fail to comply with California Rules of Court, Rule 3.1350(b) which states: “If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative ...

Excerpt: ...uest for amendment was not made earlier.” “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading….” (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts are bound to apply a policy of great liberality in permitting amendments to ...

Excerpt: ...ntiff's causes of action are uncertain as brought against KMA.” However, the “Demurrer” does not set for uncertainty as a ground for the demurrer, nor is this ground for demurrer discussed in the Memorandum. Thus, the Court treats this ground for demurrer as waived. (California Rules of Court, Rule 3.1113(a).) Third COA (Violation of Subdivision (A)(3) of Civil Code section 1793.2): The Complaint states facts sufficient to constitute this c...

Excerpt: ... identifying any documents it has withheld on the basis of those objections, as required under Code of Civil Procedure section 2031.240(b)(l). Defendant argues (without proof) that it served verified responses and supplemental verified responses to these requests. Defendant suggests it produced all the documents relating to these demands. It appears the disputes may be moot. However, a responding party may not self-select its preferred responsive...

Excerpt: ...ses to BRE's Form Interrogatories, Set Two, No. 17.1, and to Requests for Admission, Set One, Nos. 1-3, 6-17. Plaintiff asserts causes of action for premises liability, negligence, and negligence per se, and has placed BRE's ownership and possession of the subject property at issue in this lawsuit. (See Complaint, ¶¶ 5, 19.) Thus, the subject matter of the instant requests are proper. The responses to Requests for Admission, Set One, Nos. 1-3, ...

Excerpt: ...o plaintiff therefrom.” (Wall St. Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1178.) Here, Plaintiff presents evidence that on or about September 18, 2019, Defendant NEW LEAF, as “Borrower”, Borrower executed and delivered to Plaintiff a Business Loan Agreement, agreement number 7-476483-1 (the “Loan Agreement”); that Borrower received an original loan in the principal amount of $31,000.00; that the Loan Agreement...

Excerpt: ...uiet Title by Way of Easement by Necessity; (3) Third Cause of Action to Quiet Title by Way of Easement by Collateral Estoppel; and (4) Fourth Cause of Action to Quiet Title by Way of Equitable Easement. Evidentiary Objections: Davis' evidentiary objections to Ephland's evidence are OVERRULED as to Nos. 1-7. Ephland's evidentiary objections to Davis' evidence are SUSTAINED as to Nos. 1, 2 and 4-9 and OVERRULED as to No. 3. Requests for Judicial N...

Excerpt: ...st for amendment was not made earlier.” “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading….” (Code Civ. Proc., §§ 473, subd. (a)(1), 576.) The court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) Courts are bound to apply a policy of great liberality in permitting amendments to th...

Excerpt: ...an independent tort. On a conspiracy theory, defendants who did not commit the tort may be jointly liable with the immediate tortfeasors when they share with the immediate tortfeasors a common plan or design in its perpetration. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823; Kenne v. Stennis (2014) 230 Cal.App.4th 953.) The complaint must allege acts that would have given rise to a tort cause of action w...

Excerpt: ... hearing for 1-31-2022, Dept. C11, at 8:45 am. Defendants are to give notice. The Arbitration Agreement is attached as Exhibit B to the motion and is two pages in length. In summary, it is between defendant Leisure Court Nursing Facility and plaintiff-decedent Benjamin Naples. However, it is signed by plaintiff Beverly Larson as Naples' agent. At the top of the agreement, it states that residents are not required to sign the arbitration agreement...

Excerpt: ...]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known ...

Excerpt: ...21. (See McKown Decl., ¶¶ 3-5, Exhs. A-C.) In Opposition, Plaintiffs state TIEBACK's counsel specifically asked for an in-person deposition of his client's PMQ; that it was never said that Defendants' could not appear for the deposition remotely; and that there has been a productive meet and confer on this issue between all counsel involved. Based on the above, the Court finds this request for protective order appears MOOT. However, to the exte...