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

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

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

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

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other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected...”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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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